Hofstra Law Review Volume 19 | Issue 4 Article 7 1991 Conceiving a Lawyer's Legal Duty to the Poor Ronald H. Silverman Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Silverman, Ronald H. (1991) "Conceiving a Lawyer's Legal Duty to the Poor," Hofstra Law Review: Vol. 19: Iss. 4, Article 7. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol19/iss4/7 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Silverman: Conceiving a Lawyer's Legal Duty to the Poor CONCEIVING A LAWYER'S LEGAL DUTY TO THE POOR Ronald H. Silverman* TABLE OF CONTENTS 1. INTRODUCTION ..................... ......... 886 II. DESCRIBING THE PROPOSAL ............ ......... 888 A. A Generation of Mandatory Pro Bono Proposals ................... ......... 888 B. A Categorical Description ......... ......... 895 1. Specifying Program Duties ...... ......... 895 2. Justifying the Proposal .................. 899 3. Universal Coverage .......... ......... 902 4. Compliance Options .......... ......... 904 5. Administration and Enforcement ... ......... 906 6. Initial Program Implementation ... ......... 908 7. Characterizing the Total Report ... ......... 908 C. "Positive" Descriptions ........... 910 .......... D. Describing Program Consequences for Individual Practitioners ....... ......... 913 E. Describing Delivery System Changes ... ......... 928 F. Mandatory Pro Bono as a Tax ...... ......... 941 Ill. EVALUATING THE PROPOSAL ........... ......... 948 A. The Conventional Opposition ........ ......... 948 * Kalikow Professor of Law, Hofstra University School of Law; B.A., 1961, Universi- ty of Michigan; J.D., 1964, University of Chicago. I am grateful for the financial support of the Hofstra University Law School Special Projects Program and for the research assistance of the following Hofstra law students: Victor Abravaya, Billy Ascione, Ethan Blank, Amy Bressner, Pamela Goldsmith, David Hubelbank, Eric Klar, Alexander Kranz, Daniel Murphy, Gonzalo Panacho, and Peter Rosegarten. I am also grateful for the stimulation provided by my colleagues Robert A. Baruch Bush, Eric Freedman and Andrew Schepard and by the officers and members of the Hofstra Public Justice Foundation, particularly David Weissman, Esq., and Gregory Rabinowitz, Esq., members of the class of 1990, Hofstra University School of Law. Most of all, I am indebted to the late David K. Kadane. David's insights are reflected at many points in this article. He believed, as I do, that poverty law subject matter is too important to be left to the professional poverty lawyers alone. This article is dedicated to his memory, and inspired by his enduring example of professional service pro bono publico. Published by Scholarly Commons at Hofstra Law, 1991 1 Hofstra Law Review, Vol. 19, Iss. 4 [1991], Art. 7 HOFSTRA LAW REVIEW [Vol. 19:885 B. Is Mandatory Pro Bono Needed?: A Demand-Side Analysis ....... ........... 958 C. Is Mandatory Pro Bono Needed?: A Supply-Side Analysis ........ ........... 970 1. Government Funding Failures ........... 971 2. The Facts and Fantasies of Voluntary Service ......... ........... 984 D. Is Mandatory Pro Bono Too Burdensonne? ........ 991 E. Is Mandatory Pro Bono Fair? ..... .......... 1001 1. Lawyerly Abilities to Pay ..... .......... 1002 2. Fairnessfor Different Lawyers . .......... 1006 3. Are the Lawyers Unfairly Singled Out? ...... 1011 F. Evaluating The InstitutionalEffects of Mandatory Pro Bono ....... .......... 1023 1. Estimating New Resources ... .......... 1024 2. Improving Provider Agencies and Low-Income Services ...... .......... 1030 3. Changing the Service Mix .... .......... 1044 4. Estimating Negative Consequences ......... 1048 (. Addressing Fundamental Questions . .......... 1056 1. Efficiency Concerns ........ .......... 1057 2. Redistributive Puzzles ....... .......... 1064 3. Coping with Fundamental Problem ........ 1070 . IV. IMPROVING THE PROPOSAL .......... .......... 1074 A. Limiting the Experiment ......... .......... 1074 B. Implementing the Experiment ...... .......... 1084 C. Supplementing the Experiment with Fee Awards ............ .......... 1094 D. Supplementing the Experiment with a Voucher System ........ .......... 1099 V. CONCLUSION ................... .......... 1109 I. INTRODUCTION The controversial final report of the New York "Committee To Improve the Availability of Legal Services," dated April 1990, offers a clear response to an important question: Should a lawyer have a legal duty to provide the poor with civil legal services? The Commit- tee, organized at the initiative of Chief Judge Sol Wachtler of the http://scholarlycommons.law.hofstra.edu/hlr/vol19/iss4/7 2 Silverman: Conceiving a Lawyer's Legal Duty to the Poor 1991] A LAWYER'S LEGAL DUTY TO THE POOR 887 New York Court of Appeals and chaired by Victor Marrero, Esq. ("Marrero Committee"), has proposed that "all lawyers admitted to practice and registered as attorneys in New York be required to pro- vide a minimum of 40 hours of qualifying pro bono legal services every two years."' The Marrero Committee Report is also an artfully drafted com- promise effort that is the product of deliberations over a rather ex- tended period, with final consideration now postponed by Chief Judge Wachtler until the spring or summer of 1992.2 More importantly, the Committee's mandatory pro bono ("MPB") program has been misun- derstood by friends and foes alike. Many lawyers and commentators have mischaracterized the likely individual-level impacts of the pro- posal and have ignored certain very interesting "institutional" implica- tions. The intense debate over the proposal has all too often suffered from excessive moralizing, from a misguided and unlawyerly taste for obscuring generalizations, and from the relative absence of analytic instruments and useful concepts drawn from disciplines like econom- ics and public fimance. Part I of this article describes the mandatory pro bono proposal 1. The Marrer Committee Report amplifies and qualifies this basic recommendation at considerable length. COMMITTEE To IMPROVE T1E AVAILABILITY OF LEGAL SERVICES, FINAL REPORT TO THE CHIEF JUDGE OF THE STATE OF NEW YORK 9-10 (Apr. 1990), reprinted in 19 HOFsTRA L. REV. 755, 768 (1992). [hereinafter FINAL COMM. REP.]. For the complete text of the Committee's proposal for a "Pro Bono Legal Services Requirement Plan," see App. B to FINAL COMM. REP. at 854-56. 2. By letter dated March 30, 1988, Chief Judge Wachtler charged the Committee "with reviewing information and reporting about the extent of the unmet need for civil legal services, the scope and operation of the existing networks recruiting private lawyers for pro bono assignments, and mechanisms for inducing cooperation and compliance and sanctioning the opposite." Id. at 852. The Committee's initial response was a PREIMDNARY REPORT TO THE CHIEF JUDGE OF THE STATE OF NEW YORK [hereinafter 1989 PREUM. COMM. REP.] transmitted by the Committee's Chair by letter dated June 30, 1989. Thereafter, the Committee held public hearings on its Preliminary Report in four locations during the fall of 1989: New York City (Oct. 19); Albany (Oct. 26); Buffalo (Nov. 2); and Rochester (Nov. 3). Various submissions by those testifying have been provided by the Committee to the author and are on file with him [hereinafter 1989 CIALS Hrgs.]. Shortly after the April 1990 Final Report of the Committee, the Chief Judge accepted the proposal of the New York State Bar Association to defer implementation of a mandatory pro bono requirement for two years. Sol Wachtler, Introduction 19 HOFSTRA L. REV. 852 (1991). At the beginning of the two year moratorium period in May 1990, Chief Judge Wachtler appointed a "Pro Bono Review Committee," co-chaired by Victor Marrero, Esq., and Justin L. Vigdor, Esq., to monitor the bar's voluntary pro bono response. This Committee has recently reported on the results of its first survey. See PRO BONO REvIEw COMMITTEE, REPORT ON THE 1991 SURVEY OF THE PRO BONO ACTIVITIES OF THE NEW YORK BAR (Aug. 1991) [hereinafter 1991 N.Y. PRO BONO SURVEY]. Published by Scholarly Commons at Hofstra Law, 1991 3 Hofstra Law Review, Vol. 19, Iss. 4 [1991], Art. 7 HOFSTRA LAW REVIEW [Vol. 19:885 from both more and less conventional perspectives. In addition to relevant history, the Marrero Committee Report is described with reference to its connected components and further described in terms of its plausible effects upon participating lawyers and upon the sys- tem that currently delivers civil legal services to the poor. This part also describes this mandatory pro bono program as a kind of tax. Part III evaluates the need for and the burdens of such a manda- tory pro bono program. It also evaluates the fairness of the program and assesses program consequences for a much criticized legal servic- es delivery system. Additionally, this important part addresses certain fundamental efficiency concerns and redistributive puzzles. Part IV of this article recommends certain changes in the propos- al. This part argues for limiting the mandatory pro bono experiment and discusses the need for legislative implementation of the new pro- gram. It also explores combining a new mandatory pro bono program with fee-shifting and a special voucher system. Finally, simple candor requires