In May 2012, Chief Judge Jonathan Lippman of the New York Court of Appeals announced that a new rule requiring bar applicants to perform 50 hours of pro bono legal services would be adopted later in the year. His announcement received widespread negative reactions, as evidenced by a letter to The New York Times by University of Missouri law professor Ben Trachtenberg (and the many responses to it). Trachtenberg argued that the rule would be unfairly onerous on inexperienced, indebted law students. More recently individuals quoted in the New York Law Journal added that the rule might be burdensome for the supervising lawyers as well, since they will need to devote much of their time to training the law student–practitioners rather than serving the poor themselves. The rule has many other flaws that also deserve airing, chiefly that the legal profession needs fewer rules for entry, not more.
Licensing Rules Are Too Rigid
Many of the problems with the legal education system today are rooted in decisions made by state judiciaries in the middle of the last century, specifically the requirement that petitioners to the bar spend three or more years obtaining a law degree from an ABA–accredited law school. Some states are more lenient than others on this requirement, such as California, with its network of state-accredited, unaccredited, correspondence, and even online law schools. California’s system has its shortcomings and hasn’t resulted in lower tuition at its ABA–accredited law schools, but if more states created alternative paths for entry into the profession—and allowed reciprocity with one another—down-market ABA–accredited law schools might have an incentive to reduce their tuition. Possibly more potent reforms would be reducing formal legal education requirements to a mere college degree, specializing law licensing along practice lines, and expanding apprenticeship options.
Instead of considering these ideas, New York’s pro bono rule is a bellwether for the direction the state’s judiciary thinks law licensing should go: more arbitrary rules and barriers for law students to meet. Other states might adopt their own pro bono requirements, and because New York is a destination state for many law graduates who did not go to law school there—especially those from elite law schools—it’s possible that the rule will cause a cascade of changes to how many law schools operate.
‘Pro Bono’ Broadly Defined
As a practical matter, New York’s pro bono rule is fairly broad in what it requires of bar applicants, who will predominantly be law students. Any unpaid legal service for poor people, nonprofits, groups “seeking or promoting” access to justice, and government entities (including the judiciary) qualifies. With such breadth, virtually every law school’s clinical and internship/externship programs fall within the rule, by design. However, some nonprofits and government entities aren’t “legally poor” in the sense that they can’t afford legal services. For instance, one obvious place for New York’s law schools eager to find pro bono opportunities for their students to look is their own universities’ offices of general counsel. After all, they’re either nonprofit entities or state institutions. For their part, government entities like the judiciary should be able to afford to pay for the legal services they need out of tax revenues. If legal services aren’t worth paying for, then it’s hard for governments to justify any pro bono work for them as satisfying the spirit of the rule.
Although I’m unsure cynical avoidance of the requirement will be widespread, its breadth certainly does little to prevent it. On the one hand, 50 hours is not a large amount of time, and law students who are effectively utilized will gain valuable work experience that they would not have gained through more coursework. On the other hand, some students’ pro bono assignments won’t be very rigorous, involving very simple research or drafting informal memoranda—tasks that an intelligent high school student could perform. It’s foreseeable that more reputable law schools will leverage their clout with equally prestigious nonprofits and government entities to secure internships for their students that don’t in practice provide legal services where they are most urgently needed.
There’s No Such Thing as Free Service
One of the deans quoted in the NYLJ article is right to note that the new pro bono rule will require law school staff to supervise more students in clinical programs. How much “law school welfare” the rule will create is debatable. Since the total number of credit hours required to graduate will not change at any law school, students who would have paid to take a three-to-four credit doctrinal elective will instead pay to participate in a three-to-four credit clinic. These clinics will probably require more experienced staff—which means more tuition—and law schools that hire new clinicians aren’t likely to reduce other, less essential faculty. Expanding clinics due to the pro bono rule will probably not be a significant driver in future, inevitable tuition increases, but larger clinics will account for a greater share of such increases.
Nevertheless, the rule reflects a “pay-to-practice” mentality, encouraging law schools to become job brokers and giving U.S. News another criterion to use in its rankings. Superficially, we might welcome law schools competing over how well they find ways for their students to serve the poor rather than how many scholars they hire, but helping the poor shouldn’t be a windfall opportunity for law schools from government loans. It may be only 50 hours over the course of three years that students would’ve largely paid for anyway, but the principle of students indebting themselves to pay wealthy law schools to supervise them as they serve the poor is backward. There are better ways to help the poor that don’t enrich the wealthy in the process.
A Pessimistic, Politicized Profession
One of the underemphasized criticisms of New York’s pro bono requirement is that it reduces serving the poor to a regulatory formality to be carried out by the least experienced (non) members of the profession, not an obligation to be shouldered by even the profession’s wealthiest. I think this criticism hints at a more profound point. The question the requirement raises is, How does the profession view the poor? The answer, as critics suggest, is not very highly. As far as the rule is concerned, the poor are a permanent fixture in society, and worse, their continued misery is now a necessary condition for there to be a legal profession.
The charitable motives used to support the rule also mask its ideological pessimism, casting the poor as a prop for a profession too timid to openly support legislative policies aimed at eliminating poverty in the first place for fear of appearing politicized. Too bad, because proclaiming that poverty should be eased by throwing a lump of work-hours by soon-to-be lawyers supervised by paid lawyers at the problem is a political statement, and not a very noble one.
Matt Leichter is a writer and attorney licensed in Wisconsin and New York, and he holds a master’s degree in International Affairs from Marquette University. He operates The Law School Tuition Bubble, which archives, chronicles, and analyzes the deteriorating American legal education system. It is also a platform for higher education and student debt reform.