State Bar to Hire Counsel Over New Pro Bono Rule

, New York Law Journal

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Chief Judge Jonathan Lippman addresses the House of Delegates at the annual meeting of the New York State Bar Association Friday.
Chief Judge Jonathan Lippman addresses the House of Delegates at the annual meeting of the New York State Bar Association Friday.

The New York State Bar Association will retain private counsel to explore whether the state's requirement that all lawyers disclose the hours and money they contribute to pro bono can be undone through legislation or litigation.

On a day when opposition to the mandatory reporting rule was evident during an extended discussion by the state bar's House of Delegates, President David Schraver said Friday his group would also cooperate with local bar associations to coordinate anti-disclosure efforts and encourage lawyers to write to Chief Judge Jonathan Lippman opposing the rule.

"I think we are representing the position of the house and the association effectively, reasonably and responsibly and we will continue to do so," said Schraver, of Nixon Peabody in Rochester.

In an interview following his report to the House of Delegates at the New York Hilton Midtown, Schraver said the outside counsel will look into whether the mandatory reporting rule can be "repealed or overturned" legislatively.

If not, Schraver said, the counsel would examine whether the state bar has a cause of action to repeal it through litigation. The hiring of outside counsel was authorized by the executive committee in response to the state's adoption of the pro bono reporting requirement beginning May 1, 2013, Schraver said.

While Lippman has stepped away, at least for now, from his original plan to make individual lawyers' pro bono contributions public information (NYLJ, Sept. 13, 2013), the House of Delegates has been on record since 2004 as being opposed to both mandatory pro bono programs and requiring lawyers to disclose the extent of their pro bono activities.

Lippman did not mention of the pro bono disclosure controversy during his annual appearance before the House of Delegates. Instead, he told bar leaders that the state court system and the state bar have enjoyed a relationship that is "so strong and so enduring" over their agreement about the legal profession's "core values," including aspiring to the highest ideals of the profession. Among those ideals are making legal services available to those in need through state aid or pro bono.

"Our profession is not parochial and it is not insular," Lippman said.

He noted that Gov. Andrew Cuomo has criticized the Judiciary's proposed 2014-15 state budget as calling for a too-high increase in spending by the courts (NYLJ, Jan. 22) and he asked the state bar for help.

"I think it important that we hear the voice of the state bar to let [Cuomo] understand, and our friends up in Albany ... that ensuring that the Judiciary has the funds to meet its constitutional mission is so vital to the well-being of the court system and the well-being of the legal profession in New York," he told the House of Delegates. "This is something that we have to work on together."

Despite the unpopularity of the pro bono disclosure rule, Lippman received a standing ovation.

In an interview after his speech, Lippman said the prospect of legal action against the mandatory pro bono disclosure rule would not dissuade him from enforcing it. He said it will generate information about lawyers' pro bono activities that the Unified Court System needs to effectively attack the problem of low-income New Yorkers lacking legal representation.

"I don't know where [the state bar] will wind up on this issue, but we all do what we think is right," Lippman said. "They are entitled to do whatever they want. But I think pro bono reporting is an important initiative to ensure that we are meeting our responsibilities. If we don't have data that tells us how we are doing, how can we address these critical issues?"

Lippman noted that seven other states, including Illinois and Florida, have adopted mandatory pro bono reporting (NYLJ, June 19, 2013).

"We haven't reinvented the wheel here," he said. "There is nothing so unusual."

Unusual or not, members of the House of Delegates lined up during a debate on a resolution related to pro bono requirements following Lippman's appearance.

The proposed resolution would have allowed the House of Delegates to adopt explanatory comments prepared by the Committee on Standards of Attorney Conduct about Rule 6.1(a) of the New York Rules of Professional Conduct. The commentary describes attorneys' obligations under the rule, which raised the number of pro bono hours lawyers should aspire to perform each year from 20 to 50.

Robert Ostertag, a former state bar president and House of Delegates member, said a 50-hour pro bono goal would impose a burden on solo and small firm practitioners which he said make up two-thirds of the state's legal profession.

"This rule has been dumped upon us," said Ostertag, of Ostertag O'Leary Barrett & Faulkner in Poughkeepsie. "Nobody asked us for comment."

Ostertag urged the House of Delegates to shelve the resolution. When asked for how long, Ostertag replied, "For two years? Two years from now, the chief judge will no longer be in office," Ostertag said, to the applause of some members of the bar group.

In the more than one-hour discussion that followed, most speakers addressed the pro bono disclosure rule itself, not the resolution before the lawyers.

Former bar president Kathryn Grant Madigan of Levene, Gouldin & Thompson in Binghamton was one of several members who said the reporting rule raises the specter of the state's one-day imposing mandatory pro bono, a position Lippman said he opposes.

Madigan said the state bar and Lippman share the common goal of providing legal representation to all low-income New Yorkers who need it, but she said she worried that the bar's relationship with the chief judge was harmed by his failure to include the group more in the debate. "It is baffling to me that our true champion of access to justice, Jonathan Lippman ... could do an end-run around the bar leadership," Madigan said.

Peter Kiernan of Schiff Harden, counsel to former governor David Paterson, urged his colleagues to save involvement by the Legislature and the governor for significant public policy issues of concern to the state bar, not a fight with the courts over pro bono.

"What we really have here is a family dispute," Kiernan said. "We have a big family and we have a big disagreement."

David Cohen of Queens said he just received his registration form on which the Unified Court System asks about pro bono contributions. "I'm a child of the 60s," Cohen said. "I'm leaving it blank. Let them do whatever they want to do to me. It is none of their business."

In the end, the House of Delegates voted 87 to 73 to postpone consideration of the resolution on the commentary to the change in the pro bono goal until the group's meeting in late June in Cooperstown. In the meantime, several committees are studying aspects of the disclosure requirement.

President-Elect Race

Also Friday, the House of Delegates staged its first-ever contested election for a statewide officer's post in the organization.

The candidate approved by the nominating committee, David Miranda of Heslin Rothenberg Farley & Mesiti in Albany, defeated Thomas Liotti of Garden City 193-11 to become the next president-elect. Liotti was the first candidate to ever petition his way before the House of Delegates to challenge a candidate endorsed by the nominating committee.

Liotti told the house prior to the vote in a brief address that mandatory pro bono reporting was "just another burden" imposed on the bar. "We are already beleaguered by an economic recession," Liotti said.

The current president-elect, Glenn Lau-Kee of Kee & Lau-Kee in Manhattan, will become the group's next president on June 1, 2014. Miranda is in line to take over the group on June 1, 2015.

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