Every once in a while, someone in a position of authority gets an idea that is so brilliant, so edge-cutting, and so original that its implementation is met with a flurry of confetti, either real or virtual, widespread reporting, and a lot of back-slapping. Such was the case the day before yesterday when, as the New York Times reported, the Chief Judge of the New York Court of Appeals announced that all new lawyers applying for admission to the bar would be required to provide 50 hours of free legal work to the needy. The completion of such work, starting next year, will reportedly be a prerequisite to licensing as an attorney in the state of New York.
I should back up just a little bit. It may be misleading to say that the Court came up with this brilliant idea out of the blue, or to represent the idea as edge-cutting. The profession of lawyering has a long tradition of providing free legal services to the poor. This tradition is so longstanding that it has a Latin name: pro bono publico, "for the public good" (pro bono for short). What's novel about Judge Lippman's announcement is that it makes New York the first state to require lawyers to provide pro bono services before receiving a license to practice. Several other states, not to be left behind in the race, are expected shortly to follow suit (no pun intended).
Let me be perfectly clear here. I am wholeheartedly in favor of the provision of pro bono services to the poor. My husband and I (both attorneys admitted to practice in the state of New York) have spent countless hours providing legal advice to economically disadvantaged individuals (i.e., the poor) and to charitable organizations. While employed by some major Manhattan law firms, I got involved in supporting the voting rights of people turned away from the polls on Election Day, filing complaints against abusive landlords, writing wills and powers of attorney for soldiers about to be deployed, and seeking orders of protection against violent spouses. My husband, who is now a highly-skilled, sought-after criminal defense attorney and an officer in our local bar association, spent the first several years of his career working for the Legal Aid Society, an organization that provides free representation to criminal defendants in New York City. He spent many nights drinking strong coffee in the Bronx courthouse, arraigning petty thieves, prostitutes, and anyone else arrested in the wee hours.
Both of us, while performing these services, had at our disposal the resources of some of the best legal organizations in the world, as well as the supervision of well-established, thoroughly experienced practitioners. We were admitted to the bar of the State of New York, covered by our firms' malpractice insurance policies, and paid regular salaries for our work.
And that's why I am concerned about the Court of Appeals' announcement. It is absolutely wonderful to require young lawyers to play their part in defending the rights of all people, regardless of economic circumstances. Valuable experience is gained in the trenches, and everyone benefits. But who will pay for all of this? Who will supervise these unlicensed, inexperienced not-yet lawyers as they take poor people's livelihoods and constitutional rights into their hands? How will the poor be protected from the inevitable missteps of these junior practitioners? Who will insure unlicensed lawyers against malpractice?
Young lawyers make lots of mistakes. I myself narrowly missed deadlines I knew nothing about; once, I actually forgot to serve an appellate brief on my adversary. Each time something like this happened, a senior lawyer in my firm rolled up her sleeves, made an apologetic phone call, and helped me fix my error. No harm, no foul, and lesson learned for next time. It was simply part of the process of becoming an experienced lawyer.
Sure, there will be the few elite students who become first-year associates at big firms and will participate in well-run pro bono programs sponsored by their firms. There will be new suits and briefcases, training sessions with buffet luncheons, cab rides to and from the courthouse, and all-night word-processing staff to type the briefs. One firm I worked for even had a staff whose job it was to keep track of lawyers' pro bono hours, to be bragged about in the firm's annual report and marketing materials. All of that will still go on.
But what about the rest of the new lawyers? Most new lawyers are graduating these days with huge amounts of debt and no jobs. They cannot count on the supervision of seasoned practitioners, the cushion of big-firm insurance, or the resources of well-funded organizations. Many of them will not be able to find jobs at all until they are actually licensed by the state. The new requirement of pre-admission pro bono service places a high barrier to entry to a profession that is already hard, and expensive, to enter. As a result, the New York Court of Appeals, and the regulating entities in other jurisdictions, will need to think long and hard about how to implement the new requirement.
I am lucky enough to have attended two law schools, and so, this past month, I attended two twentieth law school reunions. At both schools, I attended information sessions and presentations, and I was impressed with the amount of clinical experience and training that law students were receiving. (Check out, for example, the Innocence Project at Duke Law School and the Veterans Benefits Clinic at William & Mary.) The focus in legal education seems to be shifting from the old Socratic lecture-hall to the hands-on counseling and writing that characterize actual legal practice, and this is a great development. Gone are the days when recent law school graduates were unqualified to do anything but draft forms and review discovery. These new lawyers are now graduating equipped to analyze complex issues, to appear in court, and to write sophisticated persuasive documents. They spend their second and third years in law school doing great things for the public good, under the close supervision of admired legal minds and experienced practitioners.
Why shouldn't they get credit for that? If the Court of Appeals and other regulating bodies will credit students with the unpaid work they perform in law school, everyone will come out ahead. Those who need it will get great legal representation at little or no cost. Students (while still housed and fed at school) will gain useful experience that will help them find employment after graduation. The invaluable clinical programs established by the law schools will find encouragement (and, perhaps, increased visibility and funding by alumni).
I encourage members of the bar and people involved in the education of new lawyers to give this situation some serious thought. There is a solution out there, but it will require us to use the kind of creativity and courage for which our profession is known. I have no doubt we will succeed.