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.
This isn’t a particularly original thought, others have phrased it better, but access to justice is a very overrated problem. That people can’t afford a lawyer is just another facet of being poor, which sucks. Being able to afford a lawyer to represent you in a case where the underlying problem is that you don’t have money, doesn’t really do anything. Being able to afford a lawyer to represent you in housing court when you’re being evicted because you don’t have money to pay the rent- what’s the help? Sure, lawyers can forestall certain harsh realities, and of course, society tends to run roughshod over the most vulnerable, but poor people need money way more than they need lawyers.
You’ve been evicted from your home with full due process and competent representation and are now living in a homeless shelter- happy? Not likely.
The significance of the poverty connection varies based on the legal issue at stake. Eviction for failure to pay the rent, point taken. What about divorce/custody for a borderline poor working couple, with meager assets and two kids? What about breach of contract for an amount that exceeds small claims jurisdiction but doesn’t rise to the level that makes legal fees worthwhile?
You’re right, the poverty connection does vary with the type of matter, and the custody battle for the working poor is a good example. But I don’t know that access to legal services for those people is any different than their difficulty accessing dental care, medical care, good schools and adequate nutrition. For many of those, society has found a solution (however bad it may be) that doesn’t put the problem on the equivalent of the lawyer. The grocer doesn’t have to give groceries away for free. He can take food stamps and the doctor takes medicaid. So I suppose we’re in agreement that this is a societal problem.
Why do lawyers feel guilty for getting paid?
One problem, and divorce/custody is a perfect example, is that we require people to use legal services to accomplish non-legal purposes of dubious value. Who wants to spend money on divorce, especially if you don’t have enough to eat?
One additional problem is that there is very little in the law that can be accomplished, soup to nuts, in the course of a semester, or year, or more. That’s a separate problem, that things take far too long, but to give people a lawyer for a few months, when a few years may be needed, is another layer to the problem.
My fear with these programs is that they won’t effectively screen cases. If they don’t, then they are not providing access to “justice,” just access to the legal system. If CALI forms are used to file frivilous lawsuits, or if a law student is unknowingly helping someone to fraudently get government benefits, then justice isn’t served.
These programs often state that the forms and law students will help with intake. But that is when an experienced attorney is needed to get rid of the bad cases fast. Hopefully there will be enough experienced oversight in this program to do that.
That’s only one small bit of the problem, and frankly a tangential aspect. Forget frivolous suits, which are outliers, and think meritorious suits and defenses, non-litigation, big picture.
In law school, one licensed attorney-prof, one “Rule 16” student (clinical law pro hac admittee) and two junior law students (among them myself) worked hard to keep a pregnant, drug-addicted woman and her two kids from getting evicted from the worst human residence I have ever seen, two blocks from Baltimore’s Eastside District Court. This is a strong statement given my age and the unkempt quality of legacy housing stock in poor neighborhoods in Baltimore City. No power on the first floor, hole in the ceiling, cooking done on hot plates in the bedroom upstairs, front door didn’t actually close, let alone lock properly. We worked hard against an infamous mega-slumlord in Baltimore City (won’t name him but Baltimoreans know his name.)
I recall on my final exam for that clinical law course in 1992 noting my sense of futility, wondering whether the same amount of effort and expense (funded by tuition and grants) outside of lawyering could have helped her and her children far more. Had she been taught Excel or Microsoft Word for the same number of human hours, instead of getting a legal clinic tag team, or gotten some other kind of non-law support and care, would it have profited her much more for much longer?
The entire pro bono/access to justice effort may suffer a fatal conceit, namely, that in the name of increasing “access to justice” we are deceiving ourselves. Maybe there’s some calculus, backed up by whatever ethically necessary informed consent, by which newbies can be better than no lawyer at all for some limited-scope, subset of legal work. Maybe not, likely not, but let’s grant the Rule 12(b)(6) favorable inferences and construction. Is it actually better than solving the core problems? Is the entire enterprise “drawing dead” – even if it “works” somehow, does it still not “work” better than wiser deployments of resources? Most people who have access to justice problems have bigger macro-problems than access to justice. Even if they are “right” it’s still likely “wrong”, and they may not even be “right.” To risk worsening a poor client’s condition when the chance of real, material improvement is zero seems just ridiculous.
If you are pregnant, drug-addicted and broke with children, your eviction problem isn’t your core life problem. It may be your core legal momentary problem, and your liberal-minded law clinic team will pat itself on the back and feel good from a high liberal perch in the suburbs or nice downtown housing about what a nice thing they did for you; your capital-P Problem persists unsolved. Your lawyers and the entirety of Pro Bono, Inc., will pat themselves on their backs, though from a safe distance in the suburbs or the “nice parts” of town with locks and electricity. They got their “practice”, though without the wisdom or character to realize that their liberal law education benefited from their practice while their client really didn’t benefit.
There is an awful lot of back-patting going on behind all these schemes. We can’t save everyone or solve every problem, as people and life seem to have a never-ending supply of new intractable ones. But too many people focus on the problems they want to solve within the means they have available and substitute that for solutions that provide meaningful relief.
And then they go home and feel very good about themselves, while their client goes back to a life of misery.
Actually, in some ways I feel a lot better about this than I do about the prospect of the students doing criminal defense work. Although you didn’t really help the lady in question, you arguably didn’t make her worse off, and arguably couldn’t even have possibly made her worse off. You cost the bad guy some time and energy, got your practice in, and apparently did, in fact have the wisdom to realize that your value to your client was worth approximately what she was paying you.
I couldn’t agree with you more, Scott. Speaking of the civil side, so many issues (name change, uncontested divorce, etc) could be dealt with administratively (and electronically) rather than judicially. The problem is that our legal system has not grown but rather accreted over the years. Legal archaeologists can tell us how things came to be, but that begs the question why they should remain so. Judge Lippmann once called state courts “society’s emergency room.” Why put scalpels in the hands of pre-meds?
As long as the statement — the practice of law is “a privilege not a right” remains the sine qua non of high-handed bureaucratic legal elites, just about any liberty imposition or practice burden is deemed defensible — even oxymoronic mandatory pro bono. See “Membership in the bar is a privilege burdened with conditions.” In re Rouss, 221 N.Y. 81, 84 (1917)
Judge Lipmann’s latest wrinkle on mandated magnanimity and coerced compassion is as equally breathtaking in its audacity as was his first iteration. Too bad the wisdom of Ambrose Clement is so often forgotten by those whose noblesse oblige is so gladly dispensed so long as the obligations are imposed on others. Clement maintained charity’s a virtue only when it’s “free and spontaneous.” Otherwise, “State and, therefore, forced, charity is not a virtue, it is a tax.“ And likewise, Thomas Jefferson who in “Notes on the State of Virginia,” said “What has been the effect of coercion? To make one half of the world fools and the other half hypocrites.”
Sure, there may be justifiable worry about pro bono 3-Ls providing legal assistance to the poor as their hapless clients. But I don’t see how that’s any worse and more likely it’s better than that other favorite ‘access-to-justice’ quick fix, which is to unleash more and more non-lawyer zero-L document preparers on the same under-served and unserved communities. At least the 3-Ls will be providing services for free.
[Ed. Note: Name changed because it isn’t an opportunity to promote your blog.]
An awful lot of words murdered to say “me too.” Except this iteration doesn’t involve mandatory pro bono, but a voluntary trade-off of early bar for a semester of pro bono. Not what I obviously think is a grand idea, but by no means is it compulsory.
And the practice of law is a privilege, not a right.
Little off topic, but only slightly so as it’s in line with your Talmudic scholar line.
A former good buddy, and roommate from the military, ended up deployed in the Philippines with his Marine unit. (We were both USN Corpsmen at the time). I knew him to be a bit of an Alabama redneck, but our friendship abrubtly ended when he found I was marrying a Filipina med student doing her clinical rotation at the US Naval Hospital in Sunic Bay, Philippines. His comment was ” why would you marry one of those? They are for *********. Don’t you know that P(Philippine) I(slands) stands for “practice intercourse”. Good thing friends are easier to drop than wives. Still married 27 years later……he remains single. I wonder why?
It’s a good story. Short, funny and to the point.