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Posts Tagged ‘mandatory pro bono’

https://cdn.morguefile.com/imageData/public/files/g/GromovatayaIrina/03/l/1458732114nc9vo.jpgIf the American Bar Association (ABA) is underwriting something — America’s lawyers be wary. This is the organization led a few years ago by an oblivious President with the stones to blame students for opting for law school in a declining economy — this while the selfsame was roundly criticized for its own considerable regulatory failings.

And despite having done more than its share to create the lawyer glut, the ABA stands around even now, in the words of one critic, “limp-wristed” while law schools race to the bottom repeatedly lowering LSAT admission scores trawling for matriculants as enrollments decline. Any wonder another commentator declares, “The ABA can’t be trusted”?

More recently, politically correct ABA do-gooders have recommended bar associations adopt a “speech code” for lawyers — the violation of which means discipline.

And just days ago, the ABA House of Delegates adopted a new model rule concerning continuing legal education, recommending in part that state bars uniformly impose a 15-hour minimum continuing legal education requirement per jurisdictional reporting period. As usual, the ABA trots out the self-serving claptrap offered without a scintilla of empirical proof that “MCLE continues to play a crucial role in maintaining public confidence in the legal profession and the rule of law and promoting the fair administration of justice.” Pretentious pretextual poppycock notwithstanding, left out as usual is the truth that MCLE mostly serves to line bar association coffers nationwide. Ka-ching!

Such was the context for the announcement of a pro bono survey project launched by the ABA last year. It was just rolled out in Arizona.

On its website, the ABA explains it offered “its pro bono survey instrument, free of charge, to states interested in studying various aspects of the profession’s pro bono culture.” One can only guess what that means although after welcoming survey-takers, the questionnaire reveals its intentions:

“You have been asked to participate in this survey so that we may gain a better understanding of legal services provided to low and moderate income people in your state. This is a nationwide effort to quantify and recognize the pro bono work provided by attorneys, as well as to understand the factors that encourage or discourage pro bono service. We are interested in the perspectives of attorneys who have provided such services as well as attorneys who have not.”

What the “better understanding” leads to, however, is another question. Otherwise, to the frequently asked question, “What are the states expected to do with the results?” — it answers:

The ABA encourages the state leadership teams to review the findings and collaborate to generate state program and policy recommendations. In the summer and fall of 2017, the ABA will facilitate conference calls with each of the participating states to review the findings and discuss recommendations.”

https://cdn.morguefile.com/imageData/public/files/j/Jamierodriguez37/03/l/1426633399eunhs.jpg Carrots turned cudgels.

Since I ignored the first email solicitation from the Arizona Bar CEO to take the survey, last week I received a reminder to “take a few minutes” to participate in “this worthy effort” along with “an incentive to complete the survey.” No further reminders necessary for this resolute non-participant.

Based on the time it took Nebraska lawyer survey participants to complete the survey, it’s anticipated it will take lawyers more than “a few minutes” since Nebraska participants took an average of 32 minutes to finish it. And ostensibly an anonymous survey, that anonymity flies out the window if Arizona Bar members elect the Bar’s incentive to “be included in a drawing for a $150.00 gift card.”

In 2014, the State Bar of Arizona dangled a $250 Visa gift card as the sole prize for contestants vying to create a 15-second Instagram video with the mandatory phrase, “Finish the ballot. Vote for the judges!” To the best of my knowledge, the Bar never disclosed the winner or the wining video most likely because of embarrassing sparse participation. More recently, the Bar offered another gift card incentive to induce participation in its triennial lawyer compensation survey.

Compulsory lawyer servitude.

Ever the jaundiced one, I suspect these surveys will be used to advance program and policy goals of those clamoring for mandatory pro bono. Their salivary glands have never stopped drooling ever since New York became the first state to mandate pro bono work.

In New York, the forced pro bono rule was inflicted on law school graduates as a condition for bar admission. New York bar applicants must perform 50 hours of pro bono work before they can be admitted and some day hope to earn a living as lawyers.

Unlike other professionals, lawyers inexplicably remain the sole special snowflakes compelled to belong to their trade associations as conditions to earn a living. And soon enough lawyers may be the solitary profession whose services should also be compulsorily given away.

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Credits: Morguefile.com, no attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license.

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https://upload.wikimedia.org/wikipedia/commons/thumb/c/cf/A_Wilde_time_3.jpg/320px-A_Wilde_time_3.jpgOscar Wilde said he loved “talking about nothing. It is the only thing I know anything about.”

This week I shook my head reading that the Hon. Jonathan Lippman, former chief judge of New York’s highest court and who spent 43 years as a state court employee but never a year in private practice as a lawyer had taken a job with worldwide law firm behemoth Latham & Watkins LLP — in their New York office, of course. Judge Lippman is best remembered for his 2012 mandate that lawyers work 50 hours for free before being licensed to practice in New York.

http://images.nypl.org/index.php?id=834254&t=w New York became the first to compel pro bono work from lawyers. And it still fries my Arizona bacon. Last time I checked physicians, dentists, architects, pharmacists, engineers, accountants and other professionals have yet to acquire the special snowflake status of lawyers requiring them to provide free services as a precondition to practice their chosen professions. When altruism is coerced — not only is it no longer selfless — it is a tax.

Naturally, for proponents it’s nothing of the sort. It’s not compulsory charity but professional responsibility. Moreover, court cases dating back decades seem to back them up. Those decisions have held that lawyers as officers of the court aren’t protected by the 5th Amendment’s Takings Clause and are instead duty-bound to render service when ordered by court appointment.

https://upload.wikimedia.org/wikipedia/commons/thumb/a/a1/Guercino_God_the_Father.jpg/275px-Guercino_God_the_Father.jpgIn the Empire State, then, as the former chief judge proclaimed at the time from his seat on high, “If you want the privilege and honor of practicing law in New York, you’re going to have to demonstrate that you’re committed to our values.” 

One more burden on the uninitiated.

There are no limits apparently to the belief that ‘To whom much was given, much will be required’ even when the much that’s been given includes staggering law school debt. And never mind that law school graduates in New York and elsewhere at a time of dismal job prospects for lawyers still can’t find good paying jobs as lawyers much less pay down hellacious debts.

https://upload.wikimedia.org/wikipedia/commons/thumb/b/b8/Jan_Steen_school_class_with_a_sleeping_schoolmaster%2C_1672.jpg/640px-Jan_Steen_school_class_with_a_sleeping_schoolmaster%2C_1672.jpg

While New York’s 2012 pro bono requirement has been roundly criticized by some, other jurisdictions enviously yearn to copy it, including most recently, California.

Mississippi looked at it several years ago as reported by the Wall Street Journal‘s Law Blog at “Forced Pro Bono: But is it Legal?” And take particular note of the trenchant opinions of commentator “Paco”: Law professors and judges who have guaranteed salaries, employer sponsored health insurance, and government retirement benefits are the perennial promoters of mandatory pro bono. Insulated from the economic vagaries of private practice, they nevertheless feel entitled to make pronouncements regarding the “moral” and related financial obligations the rest of us should bear. From my perspective as a private practitioner, the only moral imperative regarding this issue is for legal academicians and jurists to shut up.”

As for New York’s requirement, no one has deconstructed and decried it better than law school professor Paul Campos who entitled his contemporaneous acerbic takedown, “Clueless baby boomer judge orders poor lawyers to subsidize rich ones.” Or in other words, there’s nothing like vicarious noblesse oblige. Campos listed four objections, foremost being that in the hierarchy of indigent needs, legal services do not make the list of necessities.

Of Judge Lippman, Campos opined, “He has spent his entire professional career as a functionary within New York’s court system. I’m betting a Megamillions ticket that he doesn’t have the faintest idea how preposterous it is, under current circumstances, to expect aspiring lawyers to work for free as a precondition for bar admittance in New York of all places.”

broken and untied moccasins | by TracyKoPhoto“Walk a mile in my moccasins to learn where they pinch” is an old proverb. But even its variant, “Until you walk a mile in another man’s moccasins — you can’t imagine the smell,” is disregarded. Whether pinching or malodorous or pristine, legal elites would rather go moccasin-less preferring instead to impose destinations on others without having traipsed there themselves.

Prospecting for clients? Paying business expenses like rent, payroll, utilities, marketing, legal research and insurance? Worrying about paying back six-figure law school tuition debts? Such concerns will never trouble the moccasin discalced. Paraphrasing Oscar Wilde, those who talk about nothing they know anything about — always know everything.

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Credits: Oscar Wilde, by Napoleon Sarony at Wikimedia commons, public domain;God the Father, by Guercino, Wikimedia Commons, public domain; Judiciary Scene : Judge Listening To Witness. Retrieved from http://digitalcollections.nypl.org/items/510d47e1-0ca4-a3d9-e040-e00a18064a99; A school class with a sleeping schoolmaster, oil on panel painting by Jan Steen, 1672, at Wikimedia Commons, public domain; broken and untied moccasins, by Tracy Ko at Flickr Creative Commons Attribution.

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Ah mentorship — the latest state bar flavor of the month. Seems all the bars are doing it in various forms. But mandatory bars empowered as they are as a condition of licensure to compel lawyers to join and to pay dues to practice law are especially the self-anointed flavorists. And no longer satisfied with burdening new lawyers with required courses in “professionalism,” they’re moving to force the newly-admitted whether they like the taste or not to get their palates around year-long mandatory mentorship programs. So much for six-figure ‘practice-ready’ law school training.

Hardly a surprise. When they’re not cooking up solutions to nonexistent problems, state bars like to look like they’re helping — even when they’re not. It’s their version of George Costanza’s how to look like you’re busy when you’re really not.

Forced mentorship.

Mentorship used to mean a trusting, voluntary relationship between an experienced senior guide and a willing, inexperienced junior colleague wanting personal and professional growth. In self-determined mentoring, the mentor voluntarily agreed to coach and to advise and the mentee voluntarily accepted the mentor’s tutelage.

Given what mentorship used to mean, “forced mentorship” turns the concept on its oxymoronic head even though it’s not quite the obvious incongruity as the compelled compassion of mandatory pro bono inflicted on New York’s wanna-be bar candidates. Professor Paul Campos called that one “utterly wrongheaded.” But it’s close.

You have brains in your head. You have feet in your shoes. You can steer yourself in any direction you choose. You’re on your own, and you know what you know. And you are the guy who’ll decide where to go.
Read more at http://www.brainyquote.com/quotes/quotes/d/drseuss414097.html#wT3sRZa1ZVJ0F7WP.99
You have brains in your head. You have feet in your shoes. You can steer yourself in any direction you choose. You’re on your own, and you know what you know. And you are the guy who’ll decide where to go.
Read more at http://www.brainyquote.com/quotes/quotes/d/drseuss414097.html#wT3sRZa1ZVJ0F7WP.99 They’ve also produced a historic glut of new graduates resulting in an oversupply of new lawyers unable to find full-time, long-term employment as lawyers. And thanks to unconscionably high tuition, their graduates have been saddled with unprecedented loan debts. the consumer-protective more and more of them are opting to go solo. professional relationship in which an experienced person

Paraphrasing Ronald Reagan, “The nine most terrifying words in the English language are, ‘I’m from the bar and I’m here to help.'”

No easy task.

Mentoring doesn’t come easy, especially for lawyers who some argue “have never been big fans of people skills.” For one, lawyer-psychologist maintains “Culturally, the legal profession has historically relegated people skills to an unwelcome corner of the room. Even today, many lawyers belittle, dismiss, devalue and mock any mention of such skills.”

Moreover, who has the time? And second, trust and rapport don’t just happen. And then there’s what one publication referred to as “The Misery of Mentoring Millennials.” Research is finding the old “hard-core pursuit of guidance” mentorship models don’t work so well with the “bold and hungry” Generation Z more accustomed to Twitter-length conversations than long-term communications with their seniors.

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/e/e8/Clockmakers_black_forest.jpg/320px-Clockmakers_black_forest.jpg

And speaking of long-term conversations, there’s that other obvious challenge. Ask some lawyers what time it is and they build you a watch.

File:Blah blah.gifI asked one lawyer on a real estate matter how deep the well was on the rural property and never got an answer. Instead I heard an eye-glazing discourse on water tables, aquifers, bore holes and drilling machines.

Another lawyer gave me a rambling treatise on civil procedure in response to a query on the finer points of pleading sufficiency under Rule 12(b) (6). Don’t worry. I won’t bore you with pleading standards.

These are considerations to think about now that mandatory associations have delved into what they think is the next big thing. Not that they’ll pay attention. Group-think is tasty fodder for herd-following bar bureaucrats.

Six jurisdictions have already started mentoring programs requiring new law school grads to sign up and seasoned lawyers to volunteer. Of course they’re not free. New Mexico, for example, requires new lawyers to pay $300 for a “Bridge The Gap” program but at least that covers a year’s worth of continuing legal education. Utah’s program is similar with mentees earning 12 continuing legal education credits for their $300 required participation fee.

Under Oregon’s compulsory mentoring program, new lawyers pay $100 and get 6 continuing legal education credit hours toward the 45 hours of approved continuing legal education mandated in a 3 year reporting period.

 

Oregon’s program appears the one the bean-counters at the Arizona bar are hot and bothered over. But since Arizona’s bar leaders have yet to meet a fee they didn’t want to raise, don’t be surprised if mandatory mentorship doesn’t cost more here than in Oregon.

So while Millenial lawyers may get annoyed over one more hurdle to practice, it’s all good for the mandatory bars. After all, even if these programs are more facade than fix, the bars’ feel-good watch-me-do-something initiatives will not only look good but will create one more income stream.

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Photo Credits: “oh.my.goshk,” by Abulic Monkey at Flickr via Creative Commons-license requiring attribution; Blah_blah.gif at Wikimedia Commons, by Obsidian Soul via Creative Commons Attribution-Share Alike 3.0 Unported license; Benjamin Franklin shown here on a U.S. $100 bill, Wikimedia Commons, public domain.

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File:The idle servant.jpgIndentured servitude was preferable to what New York has decided to do next year. Thanks to New York’s Chief Judge, Jonathan Lippman, new applicants to the New York State Bar will be required to prove they have performed 50 hours of free (pro bono) legal services before they can qualify to practice in the Empire State. At least indentured servants got food, clothing and shelter in exchange for uncompensated work.

But in this case, the usual blame can’t be laid at the feet of those habitual intruders into lawyer liberty – – – your friendly state bar association. Mandatory-membership state bar associations are the usual suspects when it comes to finding new ways to infringe on lawyer autonomy and free enterprise. Last year, for example, state bars around the country began imposing mandatory mentorship requirements on lawyers.

No, New York is unique. The rules for admission are set directly by the court and its administrative board and not through the normal regulatory conduit, the state bar association. Most everywhere else, state bars provide convenient ‘cover’ for the purported salutary impulses of a state’s supreme court. See, for example, Arizona State Bar proposes new attorney discipline rules.

High-handed charity.

Judge Lippman made his imperious announcement as part of Law Day festivities where he said, “If pro bono is a core value of our profession, and it is—and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should—these ideals ought to be instilled from the start, when one first aspires to be a member of the profession.”
And invoking the oft-quoted and much-favored ‘privilege not a right’ argument [1] that always inoculates the powerful against complaints of overreaching, the jurist added, We think that if you want that privilege, that honor of practicing law in the state of New York…then you are going to have to demonstrate that you believe in our values.”

Nevertheless, the New York court system’s mandated magnanimity and coerced compassion are breathtaking in their audacity. But they invite further descriptors such as tin-eared, even hare-brained.

The words of Ambroise Clément have never been more apt. Charity’s a virtue only when it’s “free and spontaneous.” Otherwise, State and, therefore, forced, charity is not a virtue, it is a tax. And likewise, Thomas Jefferson, who writing in “Notes on the State of Virginia,” said, “What has been the effect of coercion? To make one half of the world fools and the other half hypocrites.”

People 16991

And talk about tone deafness, as though struggling, underemployed and unemployed new law school graduates aren’t themselves already in need. See, for instance, “From J.D. to Food Stamps: The Personal Cost of Going to Law School.”

And just this week, data from the non-profit consumer advocacy and law school policy reform organization Law School Transparency reported by the Wall Street Journal revealed that the “Projected Law School Debt Figures Revised Even Higher” meaning that the average debt for the law school Class of 2015 will be an astronomical $210,796.

Which means that if other courts eventually copy-cat New York and also say “Jump!” then new lawyers will be consigned only to ask, “How high?” when mandatory pro bono is imposed universally.

But on a lighter note, this finally gets me to an example of a high jumper who doesn’t mind being told to jump. It’s the jump-roping Geronimo, the “Double-Dutch Dog,” who by the smile on his face, will always have fun when told to jump.

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[1] “Membership in the bar is a privilege burdened with conditions.In re Rouss, 221 N.Y. 81, 84 (1917)

Credits: “The idle servant” by Nicolaes Maes, via Wikipedia Commons and in the public domain;

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Sure to get your attention is news that the Mississippi Supreme Court’s RULES COMMITTEE ON THE LEGAL PROFESSION is seeking public comment on a proposed change to Ethical Rule 6.1, which has to do with pro bono or uncompensated legal services to the indigent.

The new rule will require 20 hours of annual pro bono work to the poor or $500 to the Mississippi Bar. See the proposed rule change, VOLUNTARY MANDATORY PRO BONO PUBLIC SERVICE, at RPC6.1.pdf.

The key provisions of the proposed rule 6.1 (b) are:

“The professional responsibility to provide pro bono legal services to the poor may be discharged by:

”(1) annually providing at least 20 hours of pro bono legal services to the poor, or

”(2) annually providing at least 20 hours of pro bono legal services to charitable, religious, civic, community, governmental or educational organizations for the purpose of providing legal counsel and representation to the poor, or

”(3) making an annual contribution of at least $200 $500 to the Mississippi Bar, which will be used by the Bar to provide legal services to the poor through legal aid organizations.”

and:

“The provisions of Rule 6.1(b) are aspirational goals and an affirmation of professional responsibility, but are not mandatory and do not constitute a basis for discipline under the Rules of Discipline for the Mississippi Bar.

The reporting requirements of Rule 6.1(e) are mandatory and the failure to report this information shall be treated in the same manner as failure to pay dues or comply with mandatory Continuing Legal Education.”

In practical terms, there’s little difference between the contemplated rule and the current requirement that lawyers certify the number of pro bono hours on an annual affidavit. The difference is that the proposed rule now makes it an either-or obligation: 20 hours or $500. And needless to say, not all lawyers are doing hand stands and somersaults over the idea, especially as many fight their way to survive an economic downturn. Consequently, Lawyers debate free legal service.

By comparison, like other jurisdictions, Nevada’s ER 6.1 is aspirational, requiring only the filing of an annual affidavit to report any pro bono legal services. Specifically, Nevada’s rule states:

“(1) All members shall complete an Annual Pro Bono Reporting Form, indicating services performed under this Rule, to be submitted to the state bar annually on a form to be provided by the state bar with the members’ fee statements. If a member fails to file the report required by this Rule, the state bar shall notify the member that a fine of $100 will be imposed unless the member files the report within a specified period of time not less than 30 days after the notice.

“(2) The professional responsibility to provide pro bono services as established under this Rule is aspirational rather than mandatory in nature. Accordingly, the failure to render pro bono services will not subject a member to discipline.”

It makes little difference that most lawyers already do a healthy share of pro bono work. But in the same way jurisdictions backed into mandated reporting of pro bono hours and mandated reporting of lawyer malpractice insurance, this is just another instance of the mindset that ‘the practice of law is a privilege-not-a-right,’ which means that any and all constraints on a lawyer’s constitutional liberties are fair game.

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/6/60/Hear_speak_see_no_evil_Toshogu.jpg/300px-Hear_speak_see_no_evil_Toshogu.jpg So once one jurisdiction adopts the change, don’t be surprised when they all do. Imitation still remains the sincerest form of flattery among state bars, especially when potential new revenue streams present themselves.

Indeed, one retired Mississippi justice already opines that the move will pass constitutional muster. That said, I suspect the proverbial die is cast while lip-service is merely being paid that Mississippi considers mandatory pro bono.

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