Wednesday, March 18, 2015
The State Bar of California has approved new admission rules that require applicants to perform 50 hours of pro bono and to complete 15 academic units of experiential courses. (These rules are pending before the California Supreme Court and the State Assembly before they are finally in effect.)
Some critics have leveled extraordinary indictments of the new rules. For example, like Prof. John O. McGinnis of Northwestern here and like the commenters on Paul Caron’s blog here, these critics variously declare that these requirements (1) are protectionist rent seeking from the guild, (2) are schemes for leftist, socialist ideological indoctrination, (3) are too expensive, (4) are only useful to students interested in litigation or public interest, (5) are slavery or involuntary servitude, (6) are ineffective to address access to justice, and (7) are unconstitutional.
At the heart of these complaints is a flawed conception of the policies. That flawed conception flows from an impoverished perception of the profession and a diminished view of lawyers’ roles as public citizens.
To hear these complaints from conservative voices is puzzling, because the call for pro bono is a call for a basic good: access to justice and the expansion of the Rule of Law through the ancient institution of the bar, provided privately and locally by citizens in their own communities. This is wholly consistent with the Catholic social teachings of subsidiarity and its Calvinist cousin, sphere sovereignty. It is a conservative virtue that civil society ought to respond to these needs rather than leaving them to government preemption, but here are critics calling the bar’s policies some kind of shady, redistributive scheme.
For centuries, our profession has embraced its calling for pro bono work, as its deepest cultural and social obligation. Pro bono draws the marginalized into the Rule of Law and the justice system, to expand republican order and to extinguish self-help, vigilantism and anarchy. Lawyers should instill trust in the system, thereby promoting the credibility of its institutions and working to ensure that the institutions of law and order sustain themselves by including everyone in the land. If lawyers live up their reputation as cynical, mercenary parasites, bent on lucre and avarice, then the Rule of Law fails when the people opt out. These moral and social obligations appear in every lawyer’s oath upon admission to the bar, in various forms.
In California, lawyers swear “to faithfully discharge the duties of an attorney and counsel at law,” which includes the duty “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” Calif. Business and Professions Code §6068 (h).
In 2005, the Supreme Court of Mississippi, my home and the bar of my first admission (and no liberal bastion), imposed aspirational rules and mandatory reporting of pro bono when it adopted a new rule that “[e]ach member of the Mississippi Bar . . . should (1) render pro bono legal services to the poor and (2) participate, to the extent possible, in other pro bono service activities that directly relate to the legal needs of the poor.” Miss. R. Prof. Conduct 6.1. The Court provided this comment:
Every lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. All lawyers are urged to provide a minimum of 20 hours of pro bono services to the poor annually. Pro bono legal service to the poor is an integral and particular part of a lawyer's pro bono public service responsibility. As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance. This is true for all people, be they rich, poor, or of moderate means. However, because the legal problems of the poor often involve areas of basic need, their inability to obtain legal services can have dire consequences. The vast unmet legal needs of the poor in Mississippi have been recognized by the Supreme Court of Mississippi. The Supreme Court has further recognized the necessity of finding a solution to the problem of providing the poor greater access to legal service and the unique role of lawyers in our adversarial system of representing and defending persons against the actions and conduct of governmental entities, individuals, and non-governmental entities. As an officer of the court, each member of The Mississippi Bar in good standing has a professional responsibility to provide pro bono legal service to the poor.
The ABA Model Rules of Professional Conduct, in the Preamble, call us “public citizens.” Public does not mean governmental. Public refers to what we do together within our social order to take care of each other. It’s not socialism. It’s human decency necessary to sustain the republic.
Now the critics may say that these merely are aspirational, not mandatory, obligations and that no authority on earth can compel someone to be moral, generous or charitable against their will. Perhaps this is so, and perhaps this is why pro bono is not mandatory anywhere for licensed lawyers. But if pro bono service is a central virtue of the profession – and it is – then it is wholly appropriate for law schools and the bar to make it mandatory for students entering the profession, to teach them how, to inculcate the virtue and value of our vocation, to transmit our common, cultural norms, and to prepare them to do it well.
Simply, it is the role of law schools to teach and train lawyers, and we legal educators are remiss if we do not teach our students the virtues of our profession and train them how to do exercise them. We make law students do things against their will and inclination all the time, every day, because we have decided somewhere along the way that they need to know it. We force them to take torts, contracts and property. We force them to write long memos and briefs. We require them to endure relentless reading assignments. We subject them to stressful exams, and we cold call them to test their critical skills under pressure. We do all of these things, and more, to prepare them to be lawyers. We make them take a bar exam. We erect barriers to the profession for good reasons. Why would we not require them to render service to the poor so that they learn about the great calling of lawyers and so that they learn how to do it well?
(Remember, these students are not free-lancing on a street corner. All of the pro bono required by the California and New York rules must be supervised by licensed attorneys who bear the professional responsibility for the client they engage, either in full or limited-scope representation. The only real criticism here is that 50 hours is not enough.)
Pro bono requirements are not slavery; they are pedagogical assignments to teach and show students how to be good lawyers. Pro bono is as essential to our profession as are zealous advocacy and confidentiality. It is fundamental to our work. It also gives the students more experience with lawyers and client, more contacts in the bar, resume enhancement, perspective on the application of law, practice interviewing and counseling, a deeper understanding of professional responsibility, and good stories to tell.
Some critics proclaim that pro bono programs or law school clinics are inherently liberal or politically ideological. These critics either lack exposure to enough programs or lack imagination to see how these programs can be empowering to the communities they serve, regardless of politics. Schools across the political spectrum - from Berkeley to St. Thomas, from Harvard to Pepperdine, from Vanderbilt to Faulkner, from American to Notre Dame - have clinics and programs committed to the professional formation of students, as lawyers of integrity, compassion, humanity and hope, led by teachers of diverse convictions and causes.
Although my politics have evolved, primarily for reasons of faith, I was reared a conservative in conservative communities. My people taught me that caring for the poor was indeed an obligation, just not the obligation of the government, that people should learn to fish for themselves to escape the “welfare mentality.” In these new pro bono requirements, we see an effort to equip lawyers to take up the cause of the oppressed and the poor, the fatherless and the widow, the least of these, as a social and moral obligation of a privileged profession. These pro bono requirements will promote better outcomes, better access to justice, and better service to clients, which will lead to less dependence, more stability, and more virtue in the commonweal.
These are not just traditional poverty law, litigation or legal aid cases either. Just this week, I have approved a pro bono project in the legal department of a nonprofit film studio producing films for children's education for a student interested in entertainment and corporate work. I have approved a pro bono project for students conducting research for international human rights policies and law reform efforts in south Asia. Lawyers are doing great work in every field of practice, and our students will learn from them.
Indeed, the call for pro bono is a call for a community of local professionals to take care of our neighbors as a mark of civil society, to address our neighbors within the system of law and to not render them up to the state (and to call the state to account). To prepare law students to do this work, so integral to the profession, is a rising tide to lift all ships. This effect is multiplied as law students become lawyers who know the responsibility of pro bono and have experience in the field.
California’s new rules are good and worthy. They may be disruptive to old models of legal education, but that disruption is righteous and useful. The requirement for pro bono will promote and sustain the profession as class after class of law students better understand the public virtue of the profession. The requirements will promote access to justice by expanding and improving the capacity of pro bono lawyers to do more with law student help, then preparing those students to take on the work themselves when they enter their rich practices.