It appears that a New York-style pro bono requirement for law students won’t be going national anytime soon. Several organizations and legal leaders have asked the committee that is updating the American Bar Association’s law school accreditation standards to add a 50-hour pro bono requirement, but that idea got a chilly reception from the committee at its most recent meeting on November 16 and 17. None of the nine committee members in attendance endorsed the idea, which generated only a few minutes of discussion. Those who took a position said that requiring a certain amount of pro bono work is outside the scope of the ABA’s accreditor role. “My own thought on this is that meeting the need for legal representation should not be the goal of accrediting law schools,” said committee chairman Jeffrey Lewis, a dean emeritus and law professor at Saint Louis University School of Law. Erica Moeser, a committee member and the president of the National Conference of Bar Examiners, agreed. “I don’t think the [ABA's accreditation standards] should be used by anyone as a vehicle for good works,” she said. Regulating pro bono work is well within the purview of the ABA, countered David Udell, the executive director of the National Center for Access to Justice at Yeshiva University Benjamin N. Cardozo School of Law. The current accreditation standards already require schools to “provide substantial opportunities to students” to perform pro bono work, and they also require each student to take a course in professional responsibility. Legal education needs to do a better job of exposing students to the pervasive and systemic problems of the legal system, he said. “This is too big of an issue not to be attended to by the ABA in a deeper and better way,” said Udell, who is among the advocates for a pro bono requirement. “It’s a shame to see what appears to be a reflexive dismissal by the committee of something that is so important, and something that is already changing legal education.” The movement to have a pro bono requirement added to the ABA’s accreditation standards is fairly new and grew out of the New York State Court of Appeal’s adoption in September of such a rule. That rule requires all applicants to the New York State Bar to complete at least 50 hours of pro bono service. That work can include legal representation of people who would otherwise be unable to afford a lawyer, work in the judiciary or state and local government, or work performed as part of a law school clinic. Proponents of a national pro bono requirement note that law students all over the country who aspire to practice in New York are already considering how to meet the new requirement, and several states, including New Jersey and California, are weighing to possibility of their own pro bono mandates. “The ABA is in a unique position to create uniformity and consistency; otherwise we will end up with a patchwork of various state requirements and law schools will be struggling to create programs that will satisfy all of the new rules,” wrote Equal Justice Works Executive Director David Stern in a letter to the ABA’s Standards Review Committee. University of California, Irvine School of Law Dean Erwin Chemerinsky urged the committee to add a pro bono requirement, or at least require law schools to track and report the number of pro bono hours completed by students. “The hope…is that having begun doing pro bono work in law school will increase the likelihood that the students will do so throughout their careers as attorneys,” Chemerinsky wrote. “Having seen the great rewards of such efforts makes it all the more likely that we will be training a generation of lawyers with a greater commitment to doing such work.” Any attempt by the ABA to add a pro bono requirement to its accreditation standards would be controversial, given that the New York rule has received a fair amount of criticism for adding yet another burden on busy, indebted law students, and for making it difficult to ensure they are being properly supervised. The committee updating the standards has already waded into several tricky issues, including job protections for law faculty and how to better evaluate law school’s teaching capabilities. Even if the Standards Review Committee doesn’t sign on, proponents will take their ideas to the ABA’s Council of the Section of Legal Education and Admissions to the Bar, which must approve the committee’s work. “I imagine that this will be a long and winding road,” Udell said. “It was important for us to get this in front of the committee and have it be considered. There’s an opportunity for the Standards Review Committee to reconsider this idea and our proposal.”
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