Lawyers' Public-Service Plan Takes the Stand
Proposal to help the poor or pay into a fund stirs New York attorneys, raising questions of fairness and effectiveness. PRO BONO LEGAL AID
THERE was something a bit odd about the hearing at the august headquarters of the New York City Bar Association a few weeks ago. Gray eminences of the law, the weight of codicils heavy upon their brows, were holding forth on the legal needs of the poor. Only 15 percent of tenants in New York City housing court have a lawyer's help, they said, even though the cases there result in 30,000 evictions.
``A daily, continuing, agonizing triage'' is how Sheldon Oliensis, the head of the New York City Bar Association, described the lines that form outside legal-aid offices early in the morning.
In part because of federal budget cuts, many of those people have to be turned away. With lawyerly precision, a recent report pegged the unmet needs at ``an average of 2.46 non-criminal legal problems per household per year.''
The report was the work of a special committee holding hearings on the matter this particular morning. In a city of multimillion-dollar legal fees, with salaries for starting attorneys creeping toward $100,000 a year, the legal bread lines have been an embarrassment to the bar, not to mention the underlying injustice they represent. In consequence, the committee, appointed by the state's highest judge, has proposed a controversial solution: require just about every lawyer in the state to donate at least 20 hours of free (pro bono) legal services to the poor each year.
To some, the New York proposal is both minimal and long overdue. ``Asking people to give 1 percent of their time - that's piddling,'' says Alan Morrison, who heads the Public Citizen Litigation Group in Washington. The New England Board of Higher Education has made a similar recommendation for that six-state region. The University of Pennsylvania law school now requires 70 hours of legal service before a student can graduate.
But among New York lawyers, the proposal has caused a furor. ``A tax in disguise and a regressive one at that,'' is how A. Thomas Levin of the Nassau County (Long Island) bar, described it. The proposal has exposed a basic tension between the big Manhattan law firms on the one hand and smaller law practitioners on the other. Even committed poverty lawyers question it in some respects.
Lurking in the background, moreover, is a basic issue. Perhaps the answer is not only more lawyers - pro bono or otherwise - but also simpler legal procedures that mean less need for lawyers in the first place. ``They are trying to divert attention from the fact that some of the real solutions will cut into their economic interests,'' says Kay Ostberg, an attorney with HALT (``Help Abolish Legal Tyranny''), a Washington legal reform group. ``That's the bottom line.''
Speaking for the city bar, Mr. Oliensis led off the hearing with a strong endorsement. Ten years ago, New York lawyers rejected a similar pro bono proposal on the grounds that voluntary efforts would fill the gap. ``It hasn't done much more than make a dent in the problem,'' Oliensis said. A compulsory program wasn't desirable, he said. But it was necessary.
Then the roof came down. One after another, representatives of the county bar associations lambasted the committee for - they said - ignoring their pro bono efforts and jeopardizing the voluntary spirit. (They agreed that taxpayers should do more, through a bigger federal commitment to legal services.) Mr. Levin of Nassau County made it a class issue, calling the proposal the work of ``high-powered and high-priced attorneys who practice law in megafirms.''
These county lawyers weren't exactly in tattered shoes. Levin's firm, for example, has 35 attorneys. Still, they have a point. With a hundred lawyers or more, and profits in some cases that top a million dollars per partner, Manhattan megafirms have resources to spare. These firms use pro bono work as a marketing device to lure top law-school grads. And they have in-house publicists to make sure such efforts get recognition. ``They can make money on this,'' Levin charged in an interview. ``They can hire people to do the work for them.''
This comment refers to a provision that would allow firms to delegate their pro bono work to a few associates, allowing senior partners to go about their $450-per-hour Wall Street work untroubled by the needs of the poor. Small firms would get a similar escape hatch, the option to pay cash instead of service at the rate of $50 for each hour they owe.
Eugene Souther, speaking for the New York County Bar Association, compared this to Civil War draft-dodging (although Mr. Souther, who works on Wall Street, doesn't like mandatory pro bono in any form). But then, the pooling and buyout provisions point to a philosophical split in the pro bono ranks. To one group, it's a matter of principle that all lawyers should serve. ``I personally find it unseemly that a lawyer can delegate professional responsibility,'' says John Humbach, who teaches law at Pace Law School in White Plains, N.Y.
The pragmatists, by contrast, think the ``buyout'' is just fine. The money - or a full-time associate - will do much more for the poor than a senior partner who doesn't know a thing about landlord-tenant law. ``The poverty law community wouldn't benefit from having Mr. Skadden [of Skadden, Arps, a major law firm] in housing court,'' says Scott Rosenberg of the Association of Legal Aid Attorneys.
The committee didn't take the criticism lying down. One member, noting that only some 14,000 of the state's 80,000-plus lawyers reported pro bono work, asked acidly, ``You find that evidence of a rising tide?'' (``The numbers have been climbing,'' said Robert McCrate of Sullivan and Cromwell.) Others observed that the ``rising tide'' began only after the first threat of mandatory pro bono work 10 years ago.
Supporters had their own problems with the proposal. The definition of pro bono, for example, includes only work for the poor. This could drain off the free legal help lawyers presently give to environmental and other worthy causes. Then, too, there's the question of enforcement. Gary Casella, chief counsel of the bar's grievance committee for the 9th judicial district, says his office has a backlog of 400 cases. Complaints against attorneys have more than doubled since 1982, he says, but he has been able to add only one attorney.
``We'd be ground to a halt,'' he says, of the prospect of overseeing the pro bono work of 88,000 lawyers.
Not many expect the proposal to survive, at least in its current form. Even if it passes, however, unmet legal needs will still be great, especially for the middle class, which wouldn't be helped a bit. Thus the voices urging more radical steps, such as procedures like small claims courts to settle many disputes without lawyers. They also say nonlawyers should be able to handle routine matters, such as many divorces and wills.
Victor Marrero, the New York lawyer who wrote the committee's report, said they discussed the simplification issue briefly but decided it was beyond their mandate. He's not opposed in principle, however.
``The only solution to which the legal mind runs easily is that we need lawyers to deal with these problems,'' says Charles Wolfram, a law professor at Cornell University in Ithaca, N.Y. ``The much more plausible solution,'' he adds, is to ``take the whole thing out of court.''