Court of Appeals Chief Judge Jonathan Lippman has made good on his threat to require applicants for the New York bar, starting in 2015, to have completed 50 hours of pro bono. He released his rules yesterday, which define the pro bono duty:
Outrageously overbearing, dumping on defenseless law students who are first told to give before learning the joys of unemployment? Nah. Easy, squeasy? Nah. Incredibly vague? Well, yeah. What makes a person of limited means? I know my means aren’t unlimited, so he must be talking about me, right? Not-for-profits are conceptual entities, often funded up the wazoo, not to mention invariably existing to promote an agenda which can be viewed by some as worthy (save the whales) or not so worthy (stop homosexual marriage). Deserving of forced labor? Not necessarily.
(b) Pro bono service defined. For purposes of this section, pro bono service is supervised pre-admission law-related work that:
(1) assists in the provision of legal services without charge for
(i) persons of limited means;
(ii) not-for-profit organizations; or
(iii) individuals, groups or organizations seeking to secure or promote access to justice, including, but not limited to, the protection of civil rights, civil liberties or public rights;
(2) assists in the provision of legal assistance in public service for a judicial, legislative, executive or other governmental entity; or
(3) provides legal services pursuant to subdivisions two and three of section 484 of the Judiciary Law, or pursuant to equivalent legal authority in the jurisdiction where the services are performed.
And then there are groups seeking to promote justice, which pretty much covers everything from the ACLU to the ones that replaced a fez with a tin foil hat. Or a judicial clerkship, which every law students hopes to do for the public good and not the $280,000 signing bonus they will get from Biglaw afterward.
Despite enough wiggle room in the rules to drive a jury bus through, and the fact that a great many unworthy causes will now eligible to hand out magic pro bono certificates to law students, it’s not these flaws that define the plan. Judge Lippman made clear his expectation that law students will make their pro bono bones in law school clinics, whether they go to school in New York or elsewhere.
Regardless of what one thinks about the nature and politics of law school clinics, it likely the most sane place to put law students to work, providing some controls on the use of their services and providing some pedagogical advantage to the students, while serving others who are reasonably likely to deserve their help. Not such a horrible thing, right?
“We believe the clinics are the best places to get that experience and it would be foolish to ignore the one place where you know you have the supervision that you need in well-organized programs,” Lippman said. “To ignore that, to us, it would have been sheer folly.”
Services may be completed in any state or U.S. territory, the District of Columbia or any foreign country.
“It is logistically too difficult to require everyone to come into New York and to mandate them to do it here,” Lippman said.
Of course, this also dictates to law schools that they not only have clinics, a very costly choice compared to classroom lectures, but they provide sufficient space for every student who needs to complete his 50 hours. While this already exists in most law schools, it shifts the purpose from one of an alternative educational opportunity offered in the hope of making students more “practice ready” upon graduation to a necessity. Whether law schools like to be told by a state’s top judge that they need to provide clinics has yet to be seen, but should the winds of educational theory shift and clinics fall out of favor, their hands will be tied.
The biggest question mark is the efficacy of the plan. According to Judge Lippman, it’s goal is to serve the underserved. But that is easier said than done. What pro bono legal services can a first or second year law student offer? They can fetch coffee for public defenders. They can tell the indigent that someone will speak with them shortly. They can be very empathetic. What they can’t do is provide anything remotely resembling legal representation. They aren’t competent to do so.
Does it help the indigent to be handed an incompetent lawyer? Are they so far down the ladder that a first year law student is all they’re worth? No doubt, law students will tell stories of how fabulously capable they are, given that self-assessment is so notoriously reliable, but is bad lawyering better than no lawyering?
And in light of the fact (and it is most assuredly a fact) that law students are ill-equipped to represent people, which explains the whole existence of law school thing, how much of that 50 hours of mandatory pro bono will go into training law students to perform at least a few legal tasks with relative competency? There isn’t a whole lot one can do in 50 hours to teach someone how to deal with the lives of real people with real legal issues, whose lives or fortunes are on the line, and the pro bono providers can’t just unleash Timmy and Tiffany on the poor without any training.
Will it be 49 hours of training and one hour of pro bono? What happens when the student fulfills his pro bono requirement, but the case continues? Will the erstwhile indigent client be left high and dry, a trial looming and his interests forgotten as law students get back to acing their Civ Pro final?
No doubt Judge Lippman thought this through, and the vagueness of the plan is intended to be a feature rather than a flaw. Perhaps the idea is that it has to start somewhere, and the details will be fleshed out as problems arise. In the meantime, it’s easy to see another administrative nightmare brewing, and few people saved. If nothing else, law students couldn’t get a more accurate look at what it means to practice law than this.