Proposal for Modest Law Firm Commitment to Provide Direct Legal Services

1. The Gaping Lack of Access to Legal Services by the Vast Majority of Americans in Civil Matters

Low to middle-income New Yorkers, such as an individual or family earning $65,000, have limited to no access to effective legal representation in civil matters. If they do not meet the eligibility requirements of the few publicly funded direct legal services organizations (e.g., Legal Aid Society, Legal Services NYC), they are essentially on their own.

The vast majority of Americans face legal problems in civil matters “without access to legal information, advice, or representation.” L. Servs. Corp., The Justice Gap: The Unmet Civil Legal Needs of Low-income Americans 14 (prepared by Mary C. Slosar, 2022), “The Justice Gap”). This problem is well-understood, with “Access to Justice” commissions exploring this issue and its possible solutions operating in all but four states. See Access to Justice Commissions Directory and Structure, Am. Bar Ass’n, (last visited Nov. 2, 2024)) and the Legal Services Corporation estimating that 74% of low-income Americans earning less than 125% of the Federal Poverty Line experienced a civil legal issue within the past year. See The Justice Gap at 3, 32. 92% of those legal problems received no or inadequate assistance from legal service providers, and only nineteen percent of problems received any legal assistance at all. See id. at 44, 48.

As former Chief Judge Jonathan Lippman has observed, the nature of the adversarial system essentially requires counsel to assist a party in bringing forth “the best evidence for their respective arguments . . . [but] more and more people are unable to afford the high cost of legal help in matters that impinge upon the basic essentials of life.” Hon. Jonathan Lippman, Overview, in Beyond Elite Law: Access to Civil Justice in America, at xxxi (Samuel Estreicher & Joy Radice eds., 2016) [hereinafter Beyond Elite Law].

2. A New Model for Modest Law Firm Commitment to Pro Bono Direct Legal Services

We propose a new model for law firm pro bono, provisionally called “Storefront Pro Bono,” to help mitigate the access to civil justice gap in New York through modest pro-bono commitments from the city’s law firms and other law organizations (“law firms”). The essence of the proposal is to encourage law firms to commit fifty hours of pro bono work for each of their lawyers (as already recommended by the ABA), whether litigators or transaction lawyers, to provide direct legal services dealing with the issues presented by individuals/families who do not qualify for publicly funded legal aid and cannot afford private counsel.

This would not be agenda-driven work set by various advocacy organizations; instead, the agenda would be set by the clients themselves, and matters would come in, as it were, “over the transom” in response to well-placed public notice and word-of-mouth. The project would initially begin, as a pilot, with employment matters and be run in collaboration with the NYU Center for Labor and Employment Law (which Professor Estreicher directs); the pilot could readily expand to other law schools and other subject matter areas.

Through a hotline or via walk-ins, attorneys would meet with potential clients in a particular location or a virtual “storefront,” screen them for eligibility and whether their matter can be competently addressed by the participating attorneys, and provide advice or other forms of assistance (including, where directed by the client, presenting the matter to the employer or government agency). Any matters requiring litigation would be referred out to private counsel, in part initially through the NYU Labor Center and its connections to the plaintiffs’ bar or other provider sources.

This model is intended to supplement—not replace or diminish—current initiatives in the access-to-civil-justice space. First, it complements existing non-profit legal services by extending an “over the transom” approach (as contrasted with an agenda driven by advocacy or other nongovernmental organizations) to those New Yorkers whose income level makes them ineligible for publicly funded legal services but who are still unable to obtain private legal assistance.

Second, it highlights the central importance of expanding access to representation for civil matters that are not likely to result in litigation (traditionally, pro bono and law school clinics focus significantly on litigation, although this is changing).

Third, we believe law firm participation in this pro bono model brings operational benefits to the firms themselves, as participating lawyers learn how to deal effectively with individuals from a different educational or financial background, how to obtain information or useful other responses from sometimes recalcitrant institutions (whether employers or government agencies), and in the process how to achieve measurable improvements for clients on matters that are definite and time-limited, so they can see the life-cycle of a matter while maintaining their presence and continued involvement in the core activities of their firm. This is a modest, yet valuable, pro bono commitment that does not cause the lawyer to kill their career with the firm.

Part A. “Storefront Pro Bono”: A New Model of Law Firm Pro Bono

We are proposing a new model of law firm involvement in pro bono programs that we call “Storefront Pro Bono,” in which firms would commit that their lawyers would provide fifty hours a year of pro bono direct legal assistance for people making, say, under $65,000 per year. The fifty-hour commitment is in keeping with ABA’s recommendation. See Model Rules of Pro. Conduct r 6.1 (Am. Bar Ass’n 2019). The case work would be directed by the problems faced by the clients themselves rather than the agenda of advocacy organizations which typically seek help with big “impact” cases (which, in our opinion, already attract a substantial bar).

As mentioned, we would start initially, as a pilot, with employment law (a significant area of need for low-income households, see The Justice Gap at 34-35), in order to draw upon the resources and expertise of the NYU Center for Labor and Employment Law (“NYU Center”), but the same approach could apply to other areas of law, such as helping veterans navigate the VA medical system, assisting with immigrants’ green card applications or family petitions, work in connection with buying a house, getting a mortgage, building a small business, drafting a will, etc.

If matters require litigation, in employment law, they can be referred to the employee-side lawyers on the NYU Labor Center’s board and competent advocates in other organizations and subject areas. (In our view, since Storefront Pro Bono emphasizes legal assistance short of litigation, lawyers who ordinarily represent companies, even management-side employment lawyers, would not face any serious positional conflicts of interest). See Samuel Estreicher & Samuel Ball, Positional Conflicts Under ABA and New York Rule 1.7, N.Y.L.J., (Sept. 16, 2024, 12:00 PM),

This approach builds on the work of existing direct-services providers while broadening access but avoiding the limitations of the current, impact-focused and advocacy-group driven model for law firm pro bono. Our initiative would help law firms expand the legal profession’s capacity to serve the legal needs of New Yorkers alongside publicly funded direct services organizations, but, importantly, would not be limited to serving only those earning less than 200% of the federal poverty line, the typical cutoff for publicly funded legal assistance in New York.

A good example is provided by the DC Affordable Law Firm, which provides services to Washington, D.C. residents earning between 200% and 400% of the poverty line. A model of pro bono assistance focusing on serving those making under 400% of the poverty line would greatly expand access to essential legal services in New York. To the knowledge of DC Affordable Law Firm’s Legal Director Rebecca Goldfrank, there are no other programs nationwide offering free and low-cost services for the below 400% income group.

Storefront Pro Bono would take cases as they come over-the-transom (after some preliminary vetting). All clients would reach the project through either walk-in appointments, a hotline, or scheduled appointments. Administrative staff would vet potential clients for eligibility and suitability of their matters to the participating lawyers’ competencies, and then assign potential clients to the attorneys. All who fit geographic or income requirements and have matters that can be effectively handled by the attorneys would receive a consultation.

Prior to the consultation, staff would ask for certain documents that are customarily referred to in most employment matters. At the consultation, upon receipt of such documents, the attorney would offer either brief advice or services on the spot. If appropriate, the client could enter into an agreement providing for further representation at a later time. If representation is agreed upon and it is determined by the client and the lawyer that an approach to the employer or government agency would be helpful, the participating lawyer would be responsible for that approach. For more complicated matters, attorneys would consult with more senior attorneys in their firm or others associated with the project.

This intake model would help the program go beyond merely offering referrals to third-party providers (which is a feature of many programs in this space), promote access to those without contacts in specific community organizations or other service networks, and provide a consultation with an attorney to all who fit the program’s minimal requirements without narrowly focusing pro bono on attorney passion projects. This model of pro bono legal assistance also provides benefits to the law firms, because instead of having associates jump into a case at the litigation stage, they will gain experience in valuable soft skills (interacting with clients on a personal level, conducting effective client interviews, issue spotting, screening for relief, and offering advice in the moment).

Unlike many other programs in this space, Storefront Pro Bono’s focus would not necessarily be to use the formal legal system as an initial step to solve client problems nor to leverage impact litigation as a way to find remedies after the fact. Storefront Pro Bono can be thought of as part of a preventative legal services model where clients have their issues attended to before they require litigation. For example, Storefront Pro Bono lawyers could help someone stay in their home in a debt-collection scenario, retain employment if a leave that would otherwise be unprotected might be necessary, or get the benefits they need, all without lawsuits.

In contrast, resorting to litigation in these situations could often result in serious damage to the client’s ability to continue working for the same employer or industry. Storefront Pro Bono seeks to actualize a concept of civil justice for average New Yorkers. It aims to solve client problems ex-ante, before they become formal legal matters, through advice and negotiation—counseling in the truest sense. See Katherine S. Wallat, Reconceptualizing Access to Justice, 103 Marq. L. Rev. 581, 615–17 (2019) (arguing that for low-income people, ex ante legal advice “could be the difference between falling into poverty or making ends meet,” contrasting with the current, ex post or emergency room model of civil direct services).

Part B. Low- and Moderate-Income New Yorkers Face a Civil Law Access Gap

As mentioned above, individuals living in New York earning less than $65,000 annually have three options for civil legal representation. First, for those making under 200% of the poverty line (less than $30,120 for an individual in 2024, see Annual Update of the HHS Poverty Guidelines, 89 Fed. Reg. 2961, 2962 (Jan. 17, 2024)), publicly funded services might be an option, but some providers only take matters in particular areas and others have limited consultation slots available or long wait times for appointments.

Second, there is private pro bono representation, which for an individual is quite difficult, even if litigation is not contemplated—and this is especially true in the employment law area, where securing private pro bono legal assistance is nearly impossible. Third, there is the private legal market, essentially the only option for a single New Yorker making more than $30,120. In a city where the median annual income per individual was $39,551 in 2022, see New York City, Data Commons, (last visited Oct. 15, 2024), and the required individual annual income before taxes to cover basic needs is $69,282 See Living Wage Calculation for New York County, New York, Living Wage Calculator (Feb. 14, 2024), legal services that cost an average of $370 per hour are an unattainable expense. See How much should I charge as a lawyer in New York?, Clio,

Part C. The Access Gap for Self-Represented Litigants 

Although the Storefront Pro Bono project specifically focuses on non-litigation representation, the sheer number of pro se claimants in the courts hints at the wider representation gap within our civil legal system.

Data on the numbers of pro se litigants in the federal courts are quite limited, as are empirical studies on the issue. See Mark D. Gough & Emily S. Taylor Poppe, (Un)Changing Rates of Pro Se Litigation in Federal Court, 45 Law & Soc. Inquiry 567, 568 (2020). Even given this lack of definitive information, it is clear that unrepresented individuals make up a significant number of the plaintiffs in federal district courts.

From 2000–2019, non-prisoner pro se plaintiffs made up eleven percent or around 464,000 of federal pro se filings. See Just the Facts: Trends in Pro Se Civil Litigation for 2000-2019, US Courts (Feb. 11, 2021), Just the Facts: Trends in Pro Se Civil Litigation for 2000-2019, US Courts (Feb. 11, 2021021/02/11/just-facts-trends-pro-se-civil-litigation-2000-2019#a5. In labor and employment disputes, the immediate focus of Storefront Pro Bono, the numbers for the 2000-2019 period included around 20,000 cases involving at least one unrepresented party.

In New York courts, there is a similar lack of legal assistance for individuals in the civil system. Cases which a New York court access working group described as “involving the essentials of life” constitute around fifty percent of the state court docket (those cases involving “consumer debt, eviction, child support, disability benefits assistance, guardianship, contested divorce, foreclosure,” etc.) amounted to approximately 540,000 civil filings from March 2022 to March 2023. Permanent Comm’n on Access to Just., Report to the Chief Judge of the State of New York 37 (2023), Notably, the working group found, “a significant percentage of litigants in these cases, often more than 95%, had minimal or no legal representation.” Id.

Litigation is, we believe, the wrong focus for public attention to the access-to-civil-justice problem. Very few cases warrant the expense of a competent lawyer and the other costs of litigation. In nearly all such cases, legal representation in such low-impact disputes will not in fact be forthcoming. The community need for less formal, non-litigation representation came up in our conversations with service provider organizations across New York City and elsewhere.

The organizations providing free direct civil legal services to low-income individuals we met (including Volunteers of Legal Service (VOLS) and DC Affordable Law Firm (DCALF)) emphasized the need for legal assistance in civil matters, especially in transactional matters (the core of VOLS’ work). The vast number of referrals and consultation requests that organizations like the Legal Aid Society receive points to the unmet need for these services in New York, as does the number of non-profit legal organizations seeking pro bono attorneys to assist in building up the capacity of their organizations through groups like New York Lawyers for the Public Interest (NYLPI).

Part D. Nonprofits Alone Cannot Adequately Address the Access Gap

The publicly- and grant-funded legal services providers (among them, Legal Aid Society, New York Legal Assistance Group, Legal Services NYC, Volunteers of Legal Service, Make the Road New York, and Catholic Migration Services) offering civil representation who operate in New York City provide invaluable representation to a large and vulnerable population within our community.

During our conversation with the Legal Aid Society, we were heartened by the services provided in their Employment Law Unit. Other organizations, such as Make the Road New York, place a similar emphasis on providing advice, negotiation representation, and transactional representation alongside more traditional litigation and pre-litigation assistance. These models of lawyering, embodied by demand letters and negotiation or settlement-focused practice to get the best, quickest deal for clients, have inspired the Storefront Pro Bono model proposed in this memorandum.

Due to funding and other restrictions though, these organizations cannot serve all of those in need of legal services who are otherwise unable to procure them on the private market. The grant-based funding structure, particularly where public funding is at play, restricts the organizations to serving those making 125%of the federal poverty line (or 200% of the federal poverty line in some cases). See Income Levels for Individuals Eligible for Assistance, 89 Fed. Reg. 4562, 4563 (Jan. 24, 2024) (to be codified at 45 C.F.R. pt. 1611). All of the organizations that provide direct services that we spoke to have income requirements due to their funding schemes, and most were limited to serving those making less than 200% of the poverty line. This includes fifty-six percent of the population of New York City. Poverty Tracker Rsch. Grp. at Columbia, The State of Poverty and Disadvantage in New York City 2 (Robin Hood 2024).

Still, as discussed above, this leaves out large swaths of the population who make enough to be ineligible but who are otherwise not wealthy enough to purchase services in the private legal market. In addition to the income requirements, many programs, such as those operated by VOLS, target specific populations (seniors, incarcerated individuals, LGBT individuals, etc.) to do critical work. These efforts are laudable, vital to their clients, and help address unique community needs but there remain many others who may need similar services but whose matters do not fall into these categories.

Storefront Pro Bono would play a complementary role to the work undertaken by VOLS, Legal Aid, Make the Road New York, and others by providing similar services without the need for income eligibility restrictions. As such, the program would be able to select or scale eligibility requirements as it saw fit in order to serve groups with unmet needs. Additionally, because it would not target specific populations or rely significantly on referrals from social workers, government agencies and nongovernmental entities, it would provide an avenue for those members of our community with limited connections or knowledge about existing programs.

Part E. Conventional Law Firm Pro Bono Programs Present Trade-Offs, Generally Focus on Impact Litigation, and Involve Few Lawyers 

Law firm pro bono, while similarly providing crucial assistance to individuals, organizations, and causes, typically does not maximize its potential to positively expand access to civil legal representation. There is a focus and trade-off between providing a valuable service to help those with unmet legal needs and the desire to have attorneys benefit from learning experiences without impacting the representation of paying clients.

Firms are usually interested in pro bono work that involves high-visibility litigation, which usually matches up with the needs of nongovernmental organizations who require the human and other resources that firms can provide in many cases. These high-impact cases attract few lawyers as the sheer time commitment could impair participating lawyers’ career. Even for transactional work, which because of lower time commitment would not have this risk of career impairment, there is little attorney participation. We have found that where pro bono work is transactional, it often involves providing free advice and legal services to non-profits themselves (reviewing employee handbooks and the like), rather than those they serve.

As became clear in our conversation with New York Lawyers for the Public Interest (NYLPI), an essential clearinghouse, law firm pro bono efforts are often driven by individual attorneys’ interests and center on causes and issues of special importance to the participating attorneys. While this is understandable, the end result is often work on narrow, passion-centric issues rather than needed services to the general public on perhaps more prosaic matters.

The relative lack of focus on civil legal aid can be seen in the otherwise laudatory pro bono work of Covington, the top-ranked large firm for pro bono by Law360 Ssee Gerald Schifman, The 2024 Pro Bono Ranking: How Firms Stack Up, Law360 Pulse (Oct. 15, 2024, 2:03 PM EST), which takes legitimate pride in its provision of about 234,000 pro bono hours in 2023, only around 35,000 (about 14.9%) of which were “devoted to civil legal aid matter.” Pro Bono, Covington, (last visited Nov. 7, 2024).

The pro bono pages for firms such as Cravath (highlighting “landmark victories in civil rights cases that have changed society for the better”) and Schulte Roth (noting its “ongoing impact litigations”) have a similar focus. Pro Bono, Cravath, (last visited Nov. 7, 2024); Pro Bono, Schulte Roth & Zabel, (last visited Nov. 7, 2024). Furthermore, the number of attorneys doing substantial pro bono work at major firms remains relatively low compared to aspirational benchmarks put forth by groups like the ABA: only 3 (Selendy Gay, Jenner & Block, and Covington) of the 221 firms surveyed had more than fifty percent of their attorneys meet the ABA’s fifty-hour-per-annum recommendation. See Schifman, supra; Model Rules of Pro. Conduct r 6.1 (Am. Bar Ass’n 2019).

There are positive examples of renewed focus on using firm pro bono to provide for the legal needs of everyday Americans, upon which Storefront Pro Bono hopes to build. The signatories of the Pro Bono Institute’s Law Firm Pro Bono Challenge, for example, pledge “that a majority of the minimum pro bono time [measured either as 100 or 60 hours per attorney, or 5 or 3 percent of the firm’s billable hours] contributed by our firm should consist of the delivery of legal services . . . to persons of limited means.” Pro Bono Inst., 2024 Report on the Law Firm Pro Bono Challenge Initiative F-1 (2024), Storefront Pro Bono would build on the work of this initiative by further facilitating firm participation in civil legal aid pro bono efforts.

Part F. The Pedagogical Nature of Law School Clinical Programs Limits Their Contributions 

Clinical programs have often been thought of as a way to address the lack of access to civil justice in this country. To an extent, clinics do achieve this goal as they provide representation to a individuals and groups who otherwise may not receive needed services. This is especially true where law schools operate the clinics independently, such as with several of NYU Law’s clinics that operate as Washington Square Legal Services Inc. rather than in partnership with a direct legal services provider or other entity.

Independent arrangements make it easier to promote pedagogical, skills training goals instead of merely placing students on matters that would have been undertaken by a staff attorney alone. Law school clinics, while making a valuable contribution, are very expensive to operate and ordinarily have a 1:8 ratio of instructors to students. See, e.g., Am. Bar Ass’n Section of Legal Educ. and Admissions to the Bar, Legal Education and Professional Development – An Educational Continuum (Report of the Task Force on Law Schools and the Profession: Narrowing the Gap) 250 (1992) (“average ratio of eight students to one full time faculty member (8:1)”).

We surveyed all New York City area law schools (Brooklyn, Cardozo, Columbia, CUNY, New York Law School, NYU, Pace, Rutgers, St. John’s, and Touro) and found that the majority did not seem to operate independently or use an over-the-transom model for finding new clients. The analysis involved correspondence with clinical professors as well as reviewing the websites and online presence of the various clinics. In total, New York City area law schools offered around 138 clinics, but only 54 of these seemed to be independently or semi-independently run clinics potentially taking civil cases not exclusively on a referral basis from advocacy organizations or government agencies.

Our examination of area law school clinical programs highlighted known issues with law school clinics: (1) the tension between the priorities of student education and acting as a legal services provider and (2) the shift towards a focus on cause-driven clinics. Law school clinics are understandably required to provide law students with an educational experience that benefits their professional development, but this responsibility often creates a built-in tension with the goal of addressing unmet legal needs. See Stephen Wizner & Jane Aiken, Teaching and Doing: The Role of Law School Clinics in Enhancing Access to Justice, 73 Fordham L. Rev. 997, 999 (2004).

Clients and their legal issues are often delivered to students pre-packaged, with the matter clearly defined, to assist learning. Of course, there are clinics that at least partially have a more generalist model, including, at least in the past, the use of hotlines and student involvement in intakes, such as the Economic Justice and Public Benefits Clinic at Rutgers Law’s Newark campus. See e-mail from Jon C. Dubin, Professor of L., Rutgers L. Sch., to Samuel Ball (June 16, 2024, 9:41 PM EST) (on file with authors).

Based on our survey, it would appear schools (particularly highly selective elite law schools) have placed a greater emphasis on impact litigation and mission-driven clinics rather than those providing general direct services. This shift is part of a larger evolution regarding the purpose of clinical legal education. Elite law schools typically have more impact-litigation-focused clinics, and students perceive this impact work to provide greater prestige and intellectual stimulation compared to direct services. See Margaret Drew & Andrew P. Morris, Clinical Legal Education and Access to Civil Justice, in Beyond Elite Law at 210. In our non-systematic analysis, we noted that Columbia and NYU tended to have fewer direct-services-style clinics, with Rutgers Law seemingly having the most—again, in our limited analysis of the programs.

In sum, we are hoping to stimulate interest among law firm leaders to evaluate the Storefront Pro Bono concept and, if there is agreement, implement it in their firms, thus providing a basis for urging other law firms to adopt, in whole or in part, this new model of law-firm pro bono direct legal assistance.

Samuel Estreicher is Dwight D. Opperman Professor of Law and director of the Center of Labor and Employment Law and Institute of Judicial Administration at New York University School of Law. Samuel Ball is a second-year J.D. candidate at New York University School of Law.