Monday, July 23, 2012

Are law students who take clinics doing "pro bono" work?

New York's Chief Judge, Jonathan Lippmann, has recently announced a new requirement for admission to the NY bar: that each applicant first complete 50 hours of pro bono legal work.

As a step to find legal resources to meet the massive need for legal service for people who cannot otherwise obtain it, this proposal has a lot to recommend it. But it raises surprisingly difficult questions of definition. Many of these have recently been discussed among clinicians, and this post grows out of that discussion (in which I participated and from which I learned a lot).

"Pro bono" work, in its purest sense, is work done purely for the sake of the good -- the "public good," pro bono publico -- that it does. Generally, such work is truly admirable. (Generally, but not always: some people's understanding of the public good may be horrendously flawed; some people may do perfectly good work but harmfully disregard their loved ones in the process; and so on.)

But the more important problem is that a great deal of pro bono work probably isn't done just for the sake of the public good.  A lawyer may take pro bono cases in part to gain valuable experience, or to put his or her name in the public eye. A law firm may make itself a more attractive place to work by allowing its members to do pro bono cases; the firm's motive then is at least partly to prosper in the hiring market. As part of this strategy, firms may  (as others have pointed out) count lawyers' pro bono hours towards the annual targets each attorney needs to achieve (and may pay the lawyer's salary while she does her pro bono work). Here the "pro bono" work actually counts toward the lawyer's employment success, and compensation, at the firm.

It's worth pausing here to think a bit about the logic of defining pro bono work as solely for the public good in the first place. We might compare the work of two imaginary lawyers, unusually named Lawyers A and B.

Lawyer A is a partner in a private firm, earning $500,000 per year. Every year she devotes 40 hours to pro bono work, which we can assume (in her favor) is in no way credited to her work for the firm. It is true, and admirable, pro bono service.

Meanwhile Lawyer B is a staff attorney at a legal services clinic. She works full-time representing poor clients who cannot afford to pay for a lawyer. But she is paid, say, $50,000 per year. As another commenter pointed out, the fact that she is paid for her work means that -- if pro bono work must be done solely for the public good -- she is doing no pro bono work at all. Yet she is spending her entire working life representing poor people, and makes one tenth the income of Lawyer A.

As a general matter (leaving aside special cases of individual psychology), It's clear, isn't it, that of these two lawyers, it is lawyer B who has made a more profound commitment to public service?  And that points to a general proposition: while working without reward is certainly morally relevant, it's not the only measure of what we ultimately are concerned with: contribution to the public good. We value such contributions when they are made, and we value experiences which tend to encourage people to make such contributions over their lives.

Meanwhile, and most clearly, pro bono work isn't purely for the public good if it is required. If a lawyer must do 50 hours of pro bono work to keep her law license, or if a bar applicant must do 50 hours of pro bono work to be admitted, it is very likely that for their 50 hours they are not working solely for the public good -- because they are also working to meet the requirements for being a lawyer and having all the possibilities of income, status and power that a law degree can support.

Now I'm definitely not saying that the presence of mixed or multiple motivations makes "impure" pro bono work valueless. I really mean the opposite: most work of any kind is done for multiple reasons, and mixed-motive pro bono work can be very valuable.

All of this brings us to the question of whether students' work in for-credit law school classes should count towards New York's soon-to-be-instituted requirement of 50 hours of pro bono work as a condition of admission to the bar. I think the answer is yes, for several reasons, partly of definition and partly of underlying purpose.

First, while it's true that clinic students get a reward for their work, that doesn't distinguish them from many other lawyers whose pro bono work, as I’ve just argued, is in some way rewarded. In particular, it doesn't distinguish them from all the other applicants to the NY bar who will be rewarded for their 50 hours of pro bono work with eligibility for admission. "Pure" motivation is rare, and is not the central issue anyway; public service, and a commitment to it, are the key points.

Second, the reward clinic students receive is notably modest. Most strikingly, as a colleague pointed out to me, clinic students have to pay to get it -- because clinic courses are part of the very expensive law school education they are paying for. Moreover, students who choose to take clinics generally must forego taking equivalent numbers of credits of other courses (though to be sure some of them may be eager to make this trade-off). The paradigm case of pro bono work is work for a good cause without remuneration; typical clinic students fit all of that plus they pay out of pocket (or from loan indebtedness) for the privilege. Their work is, in this sense, the most pro bono of all.
It's worth adding, as others have pointed out, that the 50-hour requirement will fall on a group -- new law graduates -- who are already very stretched economically. We ought to avoid adding further economic burdens if we can, and one way to do that is to let students earn their pro bono hours as part of the law school study they are already paying for.

Third (and the points in this paragraph are ones others emphasized), a central purpose of most clinics is to provide effective representation to people who cannot afford to hire a lawyer. To do this is not easy; clinical teaching and learning are intense. To disregard the contribution this work makes to meeting the needs of underserved people -- to, literally, not count it -- seems to miss the value of this work towards meeting the pro bono program's goals.

Or the impact may be worse than that: not counting clinical work may actually hurt the overall pro bono effort law students make. If students cannot count their clinical work towards their pro bono requirement, presumably the result will be to discourage students, to some degree, from allocating their scarce time toward clinics -- and to push them, to that same degree, into forms of pro bono work that are not so carefully structured and guided.

In short, "pure" pro bono should not be our touchstone: pro bono work purer than clinic students' work does not often exist, and seeking it may undercut our achievement of the real goals at issue: helping underserved people, and encouraging future lawyers to commit themselves to providing such help in the many years of their legal careers.

All of this doesn't answer all the definitional questions. In making this argument, I've meant to use  the term "clinic" broadly, to include not only the classic "live-client clinic" taught at the law school by full-time faculty, but also other experiential learning such as "externship" placements in outside law offices, and other forms of guided law-related experience as well. There are many in-house clinics, externships and related programs, and it's possible that some of them -- not many -- do not involve public service work but instead involve students doing the tasks of private practice. If so, this work may not be "pro bono" (which is not a critique of its educational value). There may be other such lines to be drawn, and certainly insight to be gained from those who've focused on such issues over many years. My point is only to advocate one part of the answer to the problem of definition -- namely, that students' work in clinics, broadly understood, should count as pro bono hours.

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