Pro-Bono Service by In-House Counsel Can Help Close the Justice Gap
The recently released 2013 Report by the Task Force to Expand Civil Legal Services in New York provides encouraging results and yet sobering news on the continued efforts to close the access to justice gap. Increased civil legal services funding is undoubtedly making a difference by allowing civil legal service providers to serve more clients. In 2013, tens of thousands of New Yorkers obtained essential assistance and had their lives changed with the help of a lawyer. Despite the heroic efforts of civil legal service providers and increased funding in New York's judiciary budget, a substantial justice gap persists. The great majority of low-income New Yorkers still do not have access to a lawyer to assist them in matters relating to the essentials of life—housing, access to health care and education, family matters, and subsistence income—and 2.3 million civil litigants in our state's courts remain unrepresented.1 To further address the justice gap, we must continue to look for untapped legal resources, and the judiciary and the courts must continue to break down the barriers that hinder attorneys from contributing their efforts to alleviate the crisis in civil legal aid.
One such untapped resource is the population of in-house lawyers employed in New York who are licensed to practice in other states. While these out-of-state in-house attorneys often have decades of relevant experience and an array of applicable legal skills, in the past they have been precluded from providing legal services out of the bounds of their corporate or in-house employment. To investigate this issue, I appointed the Advisory Committee on Pro Bono Service by In-House Counsel and appointed my Court of Appeals colleague, Senior Associate Judge Victoria A. Graffeo, as chair of the Committee. The Advisory Committee worked together to recommend rule changes and strategies to enable in-house attorneys to provide pro bono legal services on behalf of the poor in New York.
This past December, based on the Advisory Committee's recommendation, I announced a rule change that will permit in-house counsel licensed to practice in another jurisdiction to perform pro bono services in New York to assist low-income individuals. This new rule amendment builds upon the court system's existing initiatives to promote pro bono practice among the bar, including the requirement that bar applicants complete 50 hours of pro bono service, the Attorney Emeritus program, and court-sponsored volunteer attorney programs. In New York, we are fortunate to have a bar that is so dedicated to pro bono service—contributing an estimated 21/2 million hours a year. Bar associations, law firms, law schools, and legal aid providers have all been instrumental in promoting pro bono service and fostering a renewed commitment to pro bono throughout the state in these difficult times. What is evident from the Advisory Committee's research and the period of public comment is that in-house lawyers are no less dedicated and interested in using their skills to represent and meet the needs of pro bono clients compared with other lawyers employed in New York.
The goal in designing the parameters of the rule amendment was to take away unnecessary barriers to pro bono practice. New York is the commercial center of the world and employs tremendously talented lawyers in in-house and corporate positions. Their expertise in tax exempt organizations, immigration matters, real estate, and other areas will be enormously helpful in addressing the legal needs of low-income New Yorkers. The rule change also allows attorneys working in corporate law departments to expand their repertoire of legal expertise as they volunteer to help veterans, victims of domestic violence, and other clients. During the public comment period for the rule change, we received letters of support from corporate counsel that were enthusiastic and unabashed in their advocacy for the proposed rule. The general counsels at Verizon, Pfizer, Anheuser-Busch InBev, Cushman & Wakefield, JPMorgan Chase, MetLife, Viacom, and many others were supportive of the change. Many corporate attorneys expressed that this rule change was long awaited, and a growing number of Fortune 500 companies have already set up or are moving to establish formal pro bono programs for their in-house attorneys. The newly amended rule allows an estimated 5,000 to 10,000 out-of-state licensed in-house attorneys employed in New York to join the ranks of those committed to doing pro bono work.
In response to the great need for increased pro bono contributions and the demand for change by the in-house counsel community, we have crafted an extremely expansive rule for in-house attorneys in order to maximize their potential contributions. Under the rule, in-house attorneys do not need supervision by a New York attorney or an approved legal service provider, and they do not need to seek pro hac vice admission when pro bono service requires appearance before a tribunal in New York. In-house lawyers will be required to provide notice to the tribunal where the attorney is appearing that the attorney is not admitted to practice in New York but is registered as in-house counsel. This simplified process eliminates unnecessary restrictions on the practice of pro bono and eases the administration by the courts. In-house counsel will still be held, however, to the same high standards of competency and zealous representation that all lawyers must follow. In-house counsel admitted to practice in other jurisdictions must be in good standing in the state in which they are licensed and must register with the New York courts. Registered in-house attorneys will be subject to the rules of the jurisdiction in which they are admitted and subject to the New York Rules of Professional Conduct.
There is a growing recognition around the nation that in-house lawyers are qualified and willing to contribute pro bono service and should be allowed to assist the poor with their legal skills even though they are licensed out-of-state.2 In 2012, the Conference of Chief Judges passed a resolution that supports allowing "non-locally licensed in-house counsel who are permitted to work for their employer to also provide pro bono legal services … ."3 We have some of the best legal talent in the country working in-house in New York, and I could not be more delighted that they can now use their skills to help those most in need of legal assistance. I urge all in-house attorneys employed in New York to get registered and to start taking advantage of this new rule change today—they and the litigants they serve will be all the better for it.
Jonathan Lippman is the Chief Judge of the State of New York.
1. 2013 Report—Task Force to Expand Access to Civil Legal Services in New York, page 2.
2 . Colorado, Virginia, and Illinois also have expansive rules allowing out-of-state licensed in-house attorneys to do pro bono work.
3. Conference of Chief Justices. Resolution 11. "In Support of Practice Rules Enabling In-House Counsel to Provide Pro Bono Legal Services," (July 25, 2012).