Are Unpaid Law Firm Internships Illegal?

Professor Eric M. Fink thinks so.

No Money, Mo’ Problems: Why Unpaid Law Firm Internships are Illegal & What to Do about It

Abstract: Unpaid internships for law students appear to be on the rise in law firms, as in other sectors of the economy. I argue that such unpaid internships are illegal under the Fair Labor Standards Act, and raise ethical questions under the Model Rules of Professional Conduct. Moreover, the practice of law firms offering unpaid internships in lieu of paid employment substantially harms law students and law school graduates, who face an increasingly tight market for paid legal employment.

While law students collectively have an interest in ending this illegal and exploitative practice, they have a disincentive against taking action themselves, lest they hurt their prospects in the already perilous postgraduate job market. To address this collective action problem, I propose a three-pronged institutional response.

First, the U.S. Department of Labor should investigate the practice of law firms using unpaid student interns, and take legal action against FLSA violators. Second, state bar authorities should investigate and take disciplinary action against lawyers and firms whose practices regarding unpaid law student interns violate ethics rules. Finally, the American Bar Association and the American Association of Law Schools should educate lawyers and law schools about the legal and ethical problems with unpaid private law firm internships, and adopt and enforce standards to discourage the practice.

(Scott Fruehwald)