Law firms don’t need to pay law student interns—as long as those interns only work on pro bono matters that do not directly benefit the firm.
The U.S. Department of Labor has clarified that the Fair Labor Standards Act does not prohibit law students from performing unpaid pro bono work at law firms, subject to certain restrictions. That clarification was issued on September 12, three months after former American Bar Association president Laurel Bellows requested a clearer interpretation of the law.
While the FLSA doesn’t generally allow people to volunteer at for-profit entities like law firms, pro bono work is an exception, according to Solicitor of Labor M. Patricia Smith. “Under certain circumstances, law students who perform unpaid internships with for-profit law firms for the students’ own educational benefit may not be considered employees entitled to wages under the FLSA,” she wrote.
The six criteria that must be met in order for an unpaid law firm internship to past legal muster are:
• The training is similar to what students would get in school.
• The internship is for the benefit of the intern.
• The intern is closely supervised and does not displace existing staff.
• The firm does not directly benefit from the intern’s work.
• The intern is not necessarily entitled to a job afterward.
• Both the intern and firm understand that the intern is not entitled to wages.
“Accordingly, where a law student works only on pro bono matters that do not involve potential fee-generating activities, and does not participate in a law firm’s billable work or free up staff resources for billable work that would otherwise be utilized for pro bono work, the firm will not derive an immediate advantage from the student’s activities, although it may derive intangible, long-term benefits such as reputational benefits associated with pro bono work,” Smith wrote.
However, Smith clarified that recent law school graduates who have not yet been admitted to the bar may not perform unpaid pro bono work as if they were still students.
A number of class actions filed on behalf of unpaid interns have cast scrutiny on the practice.
“The ABA agrees that exploitation of law students and other interns is unacceptable; however, the FLSA uncertainty inhibits law firms from offering students the opportunity to work on pro bono matters in a real-life practice setting,” wrote Bellows in late May. “It also reduces the potential supply of legally trained women and men willing to spend their time working on behalf of persons without resources to pay for legal counsel.”
With fewer paid summer clerk opportunities at law firms, students would gain experience and mentorship opportunities from working with practicing attorneys on pro bono matters, she added.
Sitting ABA President James Silkenat said the organization welcomed the guidance. “This clarification will assist law students seeking to gain legal experience and increase their volunteerism. It also will ensure law firms can continue to help the many people in need of legal assistance through pro bono efforts,” he said.