Dennis Jacobs, the chief judge of the 2d U.S. Circuit Court of Appeals, should be ashamed of himself. In a speech in Rochester, N.Y., on Oct. 6, it was reported that he ridiculed lawyers who do pro bono work. He said that some pro bono work is an “anti-social” and self-serving activity that law firms use to recruit and “give solace” to associates and that nonprofits use to further a political agenda.
As a law professor (and now dean of a new law school), I work hard to encourage my students to use their legal training to make society a better place and to help those who cannot afford legal services. Whatever their field of practice, they should spend some time doing legal work without charging for their time and services.
There are so many pressures on lawyers, especially economic ones, that make this difficult. Now the prestigious chief judge of the 2d Circuit has told attorneys that pro bono work is a bad idea and that they can feel good about not doing any. I fear that his remarks will provide the excuse for law firms to be less supportive of their attorneys doing volunteer legal work and the rationalization for lawyers doing less to help others.
Jacobs’ comments reflect his misunderstanding of the tremendous good that lawyers do every day by helping those who cannot afford legal services. There are countless examples of this. Many of the nation’s largest law firms are representing detainees in Guantánamo Bay, Cuba, doing their best to ensure that the rule of law is upheld. Volunteer lawyers and law students have spent innumerable hours helping victims of Hurricane Katrina receive compensation for their losses. Across the country, there are many lawyers volunteering their time to represent those on death row who have no right to an attorney in their federal court proceedings.
Much work is nonideological
Implicit in Jacobs’ remarks is the assumption that pro bono work is inherently liberal. That is just wrong. Much pro bono work has no ideological content, such as in helping a victim of domestic violence get an essential restraining order or assisting a child with learning disabilities receive an adequate education. Sometimes, pro bono work is in a direction conservatives applaud, such as in representing the property rights of homeowners who want to challenge a city’s use of its eminent domain power. Sometimes, it is in a more liberal direction.
The idea that lawyers should do pro bono work is not a radical idea and not new. The American Bar Association’s Model Rules of Professional Conduct declares: “Every lawyer has a professional responsibility to provide legal services for those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year.”
Jacobs also lambasted lawyers who do “impact litigation” — lawsuits oriented toward helping remedy a problem affecting a large number of people. He said that judges rarely criticize impact litigation because judges enjoy exerting power and influence.
This is terribly misguided because often there are systematic violations of the Constitution that otherwise go unremedied except through impact litigation. Brown v. Board of Education, which ordered the desegregation of schools, is a class example of essential impact litigation. Examples across the country abound. In California, for instance, there are 170,000 prisoners in facilities equipped to handle 100,000. Medical care and other services are not minimally adequate. The political process is unresponsive because prisoners don’t make campaign contributions or wield electoral power. There is no alternative to impact litigation.
I am one of countless lawyers and law professors who spend many hours doing pro bono work. In the past few years, I have represented two inmates on death row in their appeals, am representing a Guantánamo detainee, have represented inmates in a jail who were forced to sleep on the floor and contracted terrible infections, have represented people in prison for life for shoplifting under California’s “three strikes” law. I take Jacobs’ words that I have been acting in an “anti-social” and self-serving manner as a slap in the face from a person of enormous power and influence.
Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.
Editor’s note: The NLJ offered Chief Judge Jacobs an opportunity to respond, which he is considering. The full-text of his speech to the Rochester Federalist Society is available online.
