Sotomayor’s Empathy: Lawyers Pay The Price

Supreme Court Justice Sonia Sotomayor opened a can of worms at the American Law Institute when she announced that she was in favor of “forced labor,” a very curious choice of words.

U.S. Supreme Court Justice Sonia Sotomayor said Monday that all lawyers should be required to provide pro bono legal services.

“I believe in forced labor” when it comes to improving access to justice for the poor, she said during an appearance at the American Law Institute’s annual meeting in Washington. “If I had my way, I would make pro bono service a requirement.”

Sotomayor made the comment in response to a question from institute director Richard Revesz about the dearth of legal services for low-income individuals.

The justice said she was aware of programs—like New York state’s—that make pro bono work a requirement for admission to the bar. She also acknowledged that some critics say lawyers who are compelled to work for free “may not give their best effort” to the task.

But professional and ethical duties require it, Sotomayor insisted. “It has to become part of their being,” she said.

On the one hand, it’s more than a little disingenuous, coming from a person who has never spent a day of her professional career not sucking on the public teat.* From prosecutor to judge, Sotomayor got a paycheck and a pass on those “professional and ethical duties” of which she speaks.

But on the other hand, a Supreme is in a position to offer opinions that matter, not because they’ve lived their lives consistent with the beliefs they seek to impose on others, but because they get to vote on cases, write opinions, that dictate what we do regardless of whether their views are slightly hypocritical. So, when a justice favors “forced labor,” we listen.

At Volokh Conspiracy, Ilya Somin calls Sotomayor out for promoting slavery involuntary servitude, a violation of the 13th Amendment.

Imposing forced labor on lawyers (or anyone) is a violation of the Thirteenth Amendment, which forbids “involuntary servitude” as well as slavery. Admittedly, such a program might well be permissible under existing Supreme Court precedent, most notably the Court’s 1916 decision in Butler v. Perry, which ruled that the Amendment does not bar a (likely racist) Florida law forcing people to work on roads. But Butler was a badly flawed decision for reasons I outlined here.

Nah. Law is a licensed profession, and imposing conditions on those enjoying the benefits of licensure is hardly slavery. We get the benefit of a monopoly and with it comes the detriment of conditions. We’re required to do a bunch of things, some silly like continuing legal education (which not only sucks up time, but usually comes out-of-pocket as well), and some serious like complying with ethical mandates. This isn’t a Butler v. Perry problem, and calling it slavery is hyperbolic.

But just because a condition can be imposed doesn’t mean it should.

If we can impose it on lawyers in order to provide legal services to underserved populations, why not on members of other professions, anytime we think forcing them to do additional work might benefit some underserved group or promote some other societal interest?

Putting aside the deeply disturbing acceptance of the undifferentiated category of “underserved populations,” which has become a very trendy notion in academia with almost no scrutiny, likely because those who talk about it have never gone anywhere near a poor person in need of representation, the analogy is strong.

Why lawyers? The answer is fairly easy to divine. We remain a privileged guild in the public’s consciousness, gouging ridiculous sums of money from those less fortunate by using our monopoly abusively. For some lawyers, this is true. For most, it’s not. For most new lawyers, it’s a joke, as they awake in the middle of the night trying to understand why they made such a foolish choice and how they’ll survive their student loans while asking if the “underserved population” wants to supersize.

Ilya comes at this by way of comparing law with other licensed and regulated businesses, which range from barbers to auto mechanics. Why only lawyers, Sonia? If the poor got free haircuts, they would have more money available for lawyers. If their cars were repaired for free, or better still, medallion cabs were required to give them free rides, they would have more money for legal needs.

In her remarks, Justice Sotomayor recognized that lawyers performing forced labor “may not give their best effort.” But she offered no solution for this problem other than urging that lawyers must make compelled pro bono work “part of their being.”

Rhetoric like “part of their being” is similarly fashionable, empty but heartwarming lingo that empathetic folks adore. Except it’s not “best effort,” but competency, that’s at stake. Lawyers get undifferentiated licenses, but that doesn’t mean we’re fungible. Assign a Biglaw M&A lawyer to defend a tenant, and watch him google map his way to the courthouse, a place he’s never seen before in his 37 years of practice. He’ll do great, right?

But there is a far bigger question that few ask and fewer still address.  How did law become so pervasive in our society that everyone, rich and poor alike, needs a lawyer of their own to function?  We regulate, if not criminalize, every aspect of modern life short of how many sheets of toilet paper we’re allowed to use per wipe. And if anything, it’s getting worse despite the simultaneous calls to end over-regulation and criminalization, as people decry one area of regulatory excess while crying sad tears over the need for brand new, never-before-conceived, avenues for governmental control over our world.

Putting aside the question of whether the government should be involved in our every breath, if our empathetic society demands a law or regulation covering everything, such that it turns every poor person into a litigant, then fund your mandates. Your demand for law to cure all your perceived societal ills doesn’t become the lawyer’s burden.

Get off our backs. We already give plenty to those in need in pro bono, and nobody gives us a free lunch in return. But your passionate feelz come at a price, and it’s not the lawyer’s duty to pay it so you can feel all good about yourself while we clean up the empathetic mess you made.

*Eric Turkewitz corrects my mistaken assertion that Justice Sotomayor always received a government paycheck. Between prosecutor and judge, she practiced law.

14 thoughts on “Sotomayor’s Empathy: Lawyers Pay The Price

  1. Chris Coyle

    In my small county in Pennsylvania (one of two states with no statewide funding of indigent defense), private lawyers are routinely compelled by the court to represent criminal defendants, usually due to a Public Defender conflict. The pay usually works out to less than $50 per hour. When one walks into a courtroom as an involuntarily court appointed attorney, he is the only person in the system making any sacrifice – not judges, DAs, sheriffs, tipstaves, POs. I suggest that judges and prosecutors contribute 1% of their salaries toward funding indigent defense.

  2. wilbur

    I’d rather everyone work on the roads.

    They can use the exercise, the roads need the work, and it’s good feelz for the SJWs.

    I worked for a municipal street department between college and law school. I enjoyed it, except for the long periods of boring inactivity. Reasons? The weather, the union, general inefficiency.

    1. SHG Post author

      I always wanted to be one of the six guys standing there looking at the one guy working on the road. I wonder what college major preps you for the job?

  3. Ahcuah

    Ah, but lawyers are “Officers of the Court” and thus really part of the state, right? (Pfft.)

  4. R. K. Weaver

    As an attorney, I assume Justice Sotomayor takes pro bono cases to help meet the access to justice needs of the underserved population. Surely she would not be so hypocritical as to…. Oh, never mind.

  5. Ilya Somin

    I did not claim it was slavery, but that it was involuntary servitude (also banned by the Amendment). An important distinction. And, as I explain in greater detail in an update to my post, the fact that it is a condition of entering a profession does not make it permissible.

    1. SHG Post author

      I hadn’t seen your update until now. While most of Steve Lubet’s arguments seem directed to trivialize the burden of mandatory pro bono, I still agree that conditions of licensure are very different than involuntary servitude (and distinguish the judge “ordering” a lawyer to represent a litigant v. a systemic mandate). I don’t take the burden lightly, and have some ex post facto-type issues, but that said, still think it’s just one more cost of licensure.

      Edit: If I had to pick between CLE and pro bono, my choice would be the latter. It at least has some potential to provide a societal benefit.

  6. B. McLeod

    Hah. Writing checks on other people’s funds seems to be “part and parcel” of the do-gooder mentality. Sacrifices must be made, sure (but not by them).

  7. John Barleycorn

    ♡If you’re thinkin’ you’re too cool to boogie

    Boy oh boy have I got news for you

    Everybody here tonight must boogie

    Let me tell ya’ you are no exception to the rule…♧

    Taste the honey Sonia knows “legitimacy” requires some Boogie Oogie Oogie.

    In the meantime you CDLs best get your “organizing” together before the Supremes decide that the defense bar should become the only “right to work” niche of the guild in order to maintain an acceptable return on “society’s” capital investment.

    At which time Sonia will be on the cover of Forbes to explaine why she has decided against retiring in order to run for president in 2020.

    P.S. If disco had required licensure cocaine would be legal and people who can’t dance wouldn’t go to law school to compensate. I tried but nobody was hearing me.

  8. Elizabeth Ferguson

    Thank you for this article. It always bothers me when someone who will not be providing pro bono services decides that I should be required to do so, but doesn’t think about the logistics of how this is supposed to work or whether it actually will help the clients or potentially harm the attorney.

    I am a solo attorney in Michigan. I started my legal career in Legal Aid doing family law cases and the occasional landlord/tenant case. I have been in solo practice since 2013. I work with a couple of other attorneys hosting a pro se divorce clinic through our local domestic violence shelter. While we only put in about 4 hours per month, we help a lot of women prepare the paperwork and go through the process of getting a divorce on their own. Would it be nice if everyone could have their own personal attorney to handle everything for them? Sure. Is it practical? Probably not. I’ve encountered several who didn’t need an attorney but needed someone to just identify the right paperwork and explain what to expect at the courthouse. I’ve also run into some who look at the paperwork (we have it set up so it is just a fill in the blank or check the box complaint form) and can’t understand why we won’t just do it all for them. I do this type of pro bono because I know how the family court works and can actually provide valuable help. I also do court appointed criminal cases and have worked hard to get myself up to speed to provide appropriate representation to those clients.

    Michigan doesn’t have a requirement to provide pro bono work, although it is strongly encouraged that we take at least 3 pro bono cases each year or donate money to access to justice. I do what I can to help those who need access but can’t afford it, but I do it in a way that works best for me. The idea of someone deciding I should be required to do this, regardless of the impact on my practice and my ability to earn a living, really bothers me. I don’t have big money clients who can offset the costs of helping those who can’t pay. I also am not properly qualified to take on some of the cases that need coverage. While I’ve handled a few landlord/tenant cases (to use your example) I would need to do some work to brush up on those skills so that I don’t accidentally do more harm than good; I can’t imagine how bad it would be to force this requirement on someone who doesn’t even practice in court. Factoring that in, now not only would I need to provide the pro bono hours for the client, but now I would have to add in additional hours to learn an area that I specifically did not include in my own practice. I get the feeling that those who advocate on high for the rest of us to provide all of the pro bono necessary to allow everyone to have an attorney doesn’t realize that many of us just can’t afford to do it. I help where I can because I want to help. Forcing me to provide services to people I wouldn’t otherwise help takes away the whole purpose for me.

    Sorry this response is so long, but your post struck a chord with me. Feel free to ignore me or shoot me down. I’m not in it for the tummy rubs or hugs, but wanted to give a perspective from someone who is concerned about the idea of being required to do something that may not be in my or my potential client’s best interests.

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