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44th Street Notes


"A Lawyer Has an Obligation . . ."


Oct 2000

Pro bono is not just a matter of the profession's higher calling; it is also a matter of ethics. Our Code of Ethics is clear. "A lawyer has an obligation to render public interest or pro bono legal services." You won't be disbarred if you refuse, but as an ethical matter you do not have a choice. The New York Code of Professional Responsibility grounds the pro bono obligation in the fact that if pro bono legal help is not available, some persons who need the help of a lawyer will not be able to get it. The poor, of course, miss out on many things. Why do the rules of ethics treat the help of a lawyer as special? The rules don't provide a direct answer. Some say it is because lawyers in the United States, unlike, for example, lawyers in England, have a monopoly on the practice of law. A better reason is that lawyers provide access to things that are fundamental-justice and opportunity. Because free legal help is necessary to make justice and opportunity available generally, the bar associations and courts that write the rules of ethics may reasonably require lawyers-who are all officers of the court-to provide such assistance. If government paid the full bill for legal services for the poor, there would be no need to put lawyers under an ethical pro bono obligation. In many ways a fully government funded system would be preferable because it would be more efficient. Lawyers and bar associations should always press for adequate legal services funding. For many years, the City Bar has helped lead this fight. Despite these efforts, no one thinks that the current level of government funding comes close to meeting the need. To the contrary, legal services funding in the United States continues to fall behind that available in some other countries by an order of magnitude.

Financial Burden The private bar must fill the gap and this obligation, by its very nature, has always imposed a substantial financial burden. From a financial point of view, there is very little if any marginal cost when a lawyer works an additional billable hour. As a result, when a lawyer who could be fully occupied with billable work does pro bono work, the lost revenue comes entirely from the bottom line. Because substantial lost profits are a natural consequence of pro bono work, reduced profitability is no excuse as an ethical matter for failing to meet the obligation. For the same reason, being busy with billable work is no excuse. Pro bono goes with the territory, and the lost profits that are a natural consequence are a necessary cost of business. Does a lawyer's or law firm's financial support of pro bono work through contributions to pro bono organizations "count?" Under the Code, contributions may be used to fulfill the obligation in part. Thus a law firm unable to meet the 50 hours per lawyer, per year expectation because of client demands could supplement the time it did provide with a contribution. One hopes that contribution would reflect the profit earned because the shortfall hours were billed rather than pro bono. Even better, a law firm could, above and beyond ethical obligations, do more hours than expected and make significant financial contributions to pro bono organizations. Many do.

Special Benefits Lawyers should still favor actually doing pro bono work. This work provides important benefits in addition to the satisfaction of doing the right thing and meeting a public necessity. Pro bono work typically increases job satisfaction. It gives the lawyer an opportunity to broaden his or her experience. The lawyer will be able to speak with greater authority, rooted in knowledge of the way things are, about important civic issues. The lawyer is likely to grow professionally and personally as a result of pro bono work. It gives the lawyer a practical opportunity to render public service without a full time commitment. These obligations, and their benefits, should fall on corporate and business attorneys, as well as litigators. Not only is there a multitude of opportunities for corporate pro bono work, but many litigation matters and skills can be effectively handled even by those not initiated in the ways of the court house. This issue of 44th Street Notes is being distributed at law schools. When deciding where to work, law students should pay close attention to the prospective employer's support of pro bono work. For obvious reasons, students should favor employers that encourage and help their lawyers to meet pro bono obligations. A key role for any bar association is to help the profession meet its pro bono obligation. Many of our committees run pro bono programs and a good deal of City Bar work qualifies as pro bono work as defined in the Code. The City Bar Fund trains, assign cases and mentors attorneys interested in pro bono service in a wide range of substantive areas. Lawyers interested in volunteering should contact Carol Bockner at (212) 382-4713. In addition, volunteer opportunities exist at a number of organizations the City Bar helped found that support bar involvement in pro bono work including Volunteers of Legal Service and New York Lawyers for the Public Interest. Anyone wishing more information about any of these opportunities should visit our web site at www.abcny.org.

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