When I was a young man, a friend who assured me he was a Talmudic scholar started dating a shiksa (שיקסע, a non-Jewish girl in Yiddish). This was curious, so I asked him to explain why a person who professed to be as religious as he, would go out with a shiksa. He explained that the Talmud says “shiksas are for practice.”
Jonathan Lippman, Chief Judge of the New York Court of Appeals, has been at the forefront of trying imaginative ideas to address two vexing problems. On the one side is the “access to justice” (A2J) problem, that there is a huge under- and unserved community in need of legal assistance but unable to afford it. On the other, there are law students coming out of school with huge debt and little hope of finding employment.
One idea that has made its way into practice is the 50 hour pro bono rule, that anyone seeking admission to the New York bar will be required to have fulfilled this requirement. Its novelty was that it took unadmitted, inexperienced lawyers who needed jobs, money and experience, and gave them a bit of experience without a job or money. And it was meant to add to the hours of pro bono that would bridge the A2J gap. At best, it was a stop-gap measure for both.
Judge Lippman has announced a new plan, more aggressive than the 50-hour rule, to allow third-year law students to sit for the bar exam in February of their final year of law school, in exchange for using what would have been their final semester in law school to provide pro bono services to the poor.
Judge Lippman said the plan took aim at twin malaises afflicting the legal industry. Applications to law schools have plummeted in recent years as the cost of a legal education has soared and well-paid jobs for lawyers have dried up. Nearly half of graduates are not employed as lawyers nine months after they leave school, despite carrying record student-loan debts, the American Bar Association has reported. First year enrollment is lower than it has been since 1977.
At the same time, a scarcity has arisen of lawyers who serve low- and middle-income people in civil matters like foreclosures and tenant-landlord disputes, a stubborn problem Judge Lippman has called “the justice gap.”
Clearly, the plan focused more heavily on filling the A2J gap, as offering law students an opportunity to work for free does little more to advance their interests than eliminate one semester’s worth of tuition and provide a few months’ experience. It’s something. It’s not much of something. A few months after their obligation is paid, law students remain unemployed, still inexperienced and still in debt.
Is the give-back sufficient to make it worthwhile? Maybe. I leave it to law students to decide where the tipping point is for them, and note that the argument that the third year of law school is worth the price is fading fast. But as much as it may be a better option than staying in school until the bitter end, it won’t stop their bleeding or their pain.
If there was a way to mandate that this pro bono was to be fulfilled by replacing Biglaw partners in the service of corporations, thus freeing Biglaw partners to provide civil legal services to the poor for six months, that would be a fascinating concept. But of course, that’s not the idea, and the poor get third-year law student refugees to fill their legal needs.
There is a foundational issue that is omnipresent in these efforts to provide legal services to the poor: the poor are not worthy of competent legal services. Hey, they’re poor, and lucky to get anything, right?
This isn’t to diminish the self-esteem of law students, but they aren’t yet equipped to provide competent counsel. Like the well-intended but grossly misinformed CALI project, it’s not just about filling in forms. You actually have to have a clue, to know what you’re doing, to provide effective assistance of counsel. All the glowing adjectives in the world aren’t going to change this.
There is a view that anything is better than nothing, and by providing the poor with 3Ls, they receive some counsel rather than none. There are two flaws in this view. The first is that poor counsel is not better than no counsel, but can be far more dangerous as it overcomes the natural fear of failure by replacing it with a false sense of security. In other words, people will rely on the advice of these pro bono law students rather than question what they are doing and, to the extent possible, use their natural instinct for self-preservation to make the most effective decisions possible.
Second is that these efforts serve as a palliative, a way to shift the responsibility away from a real cure to the disease of being over-lawed, over-regulated, over-prosecuted. Give the poor the appearance of representation without the substance, and then legislators can continue to enact laws with abandon, comforted by the knowledge that this monkey is off their back and shifted onto the backs of law students in particular, and the legal profession in general.
The provision of legal representation to the poor is not a lawyer problem. It’s not a judge problem. And it’s most assuredly not a law student problem. It’s a societal problem, and each effort to tweak the system to alleviate the building pressure saves society, and its elected representatives, from the nasty duty to deal with it.
So while this plan may not serve either the real interests of law students or provide meaningful access to justice to the poor, it does serve to push off the burden on society to provide representation to deal with all the rules, laws, regulations thrust upon them. And it saddles the law students and lawyers with that burden.
Note: The New York Times article about Judge Lippman’s announcement includes an additional issue, expungement of misdemeanor convictions, as well. This is a huge issue, and is intentionally not addressed in this post, but will be in another. Save any commentary about it until then, please.