Friday, September 20, 2013
On September 12, 2013, the Solicitor of Labor, M. Patricia Smith, issued a letter to the American Bar Association responding to the ABA’s request for confirmation that law students interning at for-profit law firms and working on pro bono matters need not be paid. The Solicitor concluded that such internship programs would fall under the FLSA’s narrow “intern exclusion.” In so finding, she noted:
Where the program is designed to provide a law student with professional practice in the furtherance of his or her education and the experience is academically oriented for the benefit of the student, the student may be considered a trainee and not an employee. Accordingly, where a law student works only on pro bono matters that do not involve potential fee-generating activities, and does not participate in a law firm’s billable work or free up staff resources for billable work that would otherwise be utilized for pro bono work, the firm will not derive any immediate advantage from the student’s activities, although it may derive intangible, long-term benefits such as general reputational benefits associated with pro bono activities.
While the need to have our students gain practical experience while in law school is of growing importance, the DOL’s position too quickly discounts the benefits accruing to these law firms from this source of unpaid labor. The ABA’s own Model Rule of Professional Conduct 6.1 makes clear that “every lawyer has a professional responsibility to provide legal services to those unable to pay” and “should aspire to render at least (50) hours of pro bono publico legal services per year.” It would seem that these firms are discharging their ethical obligation under Rule 6.1 by using these unpaid interns. Further, unless the firm was providing more than 50 hours of pro bono services prior to the internship, the pressence of the unpaid intern doing pro bono work is always freeing up staff resources for billable work. The Solicitor never explains why that is not “an immediate advantage” from the intern’s activities which would make the unpaid internship unlawful. Nor is the more basic question addressed: Is paying a law student $7.25 per hour too much to ask?
Washburn University School of Law