First Thing, Make All The Bar Applicants Do Pro Bono

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:

(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.

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.

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.

“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.

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?

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.

5 comments on “First Thing, Make All The Bar Applicants Do Pro Bono

  1. sam

    I graduated in 1999, and my law school (UPenn) actually had a 70-hour pro bono requirement to graduate. Sure, it could be fulfilled by working for the ACLU or the DA, or for certain clinics, but we also ended up with a bunch of student-founded, student-run community organizations that had a “legal” focus. The two I volunteered for were the food stamp clinic (where we assisted people with either applying for food stamps or through the administrative process when they were having…issues) and the Penn Law Advocates for the Homeless, which involved a lot of answering basic legal questions, providing referrals, and helping people do things like file their taxes.

    Not high-order stuff, but you’d be really amazed just how much bureaucratic red tape disappears when someone’s “advocate” calls up a city agency rather than that someone themselves.

  2. SHG

    Sam, I am glad to hear that you helped people. Here’s where the problem comes in: Say someone is going to get evicted tomorrow from city-owned housing and comes into your organization. A volunteer makes a call and gets the person an extra month to vacate. Both the volunteer and the indigent are happy.

    However, it turns out that rather than be evicted, there’s a significant statutory violation giving rise to treble damages and a lifetime of free Cheerios, but the volunteer didn’t realize it and waived the indigent person’s right to recover a small fortune and lots of Cheerios, in exchange for which she only got a month to vacate. Not so happy now, right?

    Therein lies the problem. Better than nothing?

  3. sam

    Well, that’s where the referral piece (and, of course, supervision) comes in. We weren’t running around advocating without guidance, and everything we did involved consultation with others, including law school faculty. These were essentially the equivalent of clinics, but for the fact that they were developed by students to help comply with the school’s pro bono requirement, rather than for academic credit.

    I’m just trying to point out that plenty of schools have had pro bono requirements for years (and ours was 70 hours, so 50 is totally doable), and as a result this isn’t something that has to be developed, from scratch, in a vacuum. there are models out there.

  4. SHG

    I got the part that they exist. That’s not news, though your description of your experience shouldn’t be extrapolated into a universal experience of law school. Not all schools are exactly like yours, and not all students will agree with you.

    Your assumption that you’re doing a fine job, and you’ve great wonderful supervision, may be accurate, or may not. My point is that you wouldn’t have a clue how well you’re doing, and students would have to first be capable of fully grasping their limitations to know when and if they were exceeding them. Your reliance on law school faculty may be sufficient in your view, but few practicing lawyers feel the same.

  5. Pingback: Poor Litigants: Charity or Practice? | Simple Justice

Comments are closed.