The American Bar Association has an opportunity to provide national leadership on law student pro bono programs.
As members prepare to head to the ABA’s annual meeting in San Francisco starting on August 8, the council in charge of legal education and bar admissions still has time to include a 50-hour pro bono service graduation requirement for law students.
Back in November 2012, when we asked the ABA’s Standards Review Committee to include the 50-hour requirement in the revised accreditation standards that it was then developing for consideration by the Council of the ABA Section on Legal Education and Bar Admission, the Committee rejected the idea, noting in its minutes that it "did not agree that such a requirement was correctly placed in the accreditation standards."
Years earlier, however, the dialogue had already moved beyond the baseline question of whether the ABA’s standards should cover pro bono service.
They do, at Section 302(b)(2), which directs law schools to provide “substantial opportunities” to students to perform pro bono service. The real problem is that “substantial” has never been defined. It’s that vagueness that requires correction, as was underscored in May 2012 when New York moved to create its own 50-hour pro bono service requirement as a condition of admission to the New York bar.
More fundamentally, it’s difficult for anyone to sustain the argument that the accreditation standards are not an appropriate place to ensure that the nation’s law students become aware that millions of people go without legal representation in our courts – and that pro bono service is important to help assure equal access to justice.
That’s what pro bono service teaches, in addition to helping students acquire concrete skills. Pro bono service is certainly within the mission of legal education and offers an opportunity for the ABA, and legal education itself, to show that it understands the reality of our justice system.
More importantly, if the ABA does not embrace a national approach to pro bono service, individual states will likely move to establish their own rules, extending differing bar admission requirements to their graduating law students. That possibility is nearer to becoming a reality, as a Supreme Court-appointed working group in New Jersey and as the State Bar of California urge adoption of pro bono service bar admission requirements that differ from one another, and from the requirement already in place in New York.
So, the question remains: Will the ABA lead on the 50-hour requirement?
It can, and it should.
Implementing the requirement would, in fact, be the perfect role for the ABA, providing needed leadership in prompting and guiding a national conversation among stakeholders about the role of pro bono service in legal education.
A national process and a national standard are what everyone should want—students, schools, courts, the nation, and for that reason, the ABA, too.
Deborah Rhode is a law professor and director of the Center on the Legal Profession at Stanford University. David Udell is executive director of the National Center for Access to Justice at Yeshiva University Benjamin Cardozo School of Law.