Wednesday, May 02, 2012
Signing Off, With a Parting Shot at Legal Education
Thanks to Dan and the rest of the Prawfs community for welcoming me here this past month. Although my stint is up, and I'm signing off today, I can't help taking one last shot at some important legal education news that has just broken. Chief Judge Jonathan Lippman of the New York Court of Appeals has just announced that all candidates for admission to the Bar of the State of New York will soon be required to prove that they have performed at least 50 hours of law-related pro bono service prior to being admitted. I'm a firm believer in the value of pro bono service, and did quite a bit of pro bono work in my past life as an associate at Cravath. And as Jason Mazzone notes over at Balkinization, all these person-hours could well produce some serious social good. But this new rule strikes me as seriously problematic, particularly in light of the challenges facing legal education and the prevailing economic climate, both of which are the topic of so much current discussion and angst.
The current recession has not been kind to the young, particularly those without a broad support network. The deck is stacked against them in a contractionary economy, both because they haven't yet had the chance to acquire sufficient resources to see them through hard times, and because in periods of scarcity (like the current one), those who do have such resources guard them ever more jealously, making it difficult for those just starting out to get on their feet. Chief Judge Lippman's proposal notably declines to impose pro bono requirements on current members of the bar on grounds that it would not be "workable," in part because there are "lawyers who can't make a living on what they are doing now." This special pleading seems to be of a piece with the current trend of muddling through hard times by demanding more sacrifice from those who have less, while failing to make comparable demands of otherwise similarly situated people who are fortunate enough--often due to nothing more than the historical accident of having been born at the right time--to have more.
As my former colleague Brian Tamanaha and others have argued at length, law school is an increasingly bad deal for many students. The looming spectre of unmanageable debt and the fierce competition for legal employment have created all sorts of opportunities for incumbents in the legal profession to take advantage of those who seek to enter the profession as a means to a better life. I'm sure I'm not alone in having been somewhat concerned at the contortions that law schools and legal employers alike are willing to go through to steer a course between the ABA's Standard 305 (governing externships) and the recently reinvigorated enforcement of the Fair Labor Standards Act. Even federal judges and US Attorneys Offices appear to be hungry for free labor from those who are desperate to get a foot on the ladder to a successful legal career. The fact that we incumbents are increasingly demanding these types of sacrifices of those who seek to climb up the ladder behind us strikes me as at best uncharitable and at worst venal. Certainly it strikes me as inconsistent with the values underlying a commitment to pro bono service. If the stewards of the legal profession really think pro bono service is important enough to be made mandatory--and I'm not opposed to that idea--then we should be mandating it across the board, not singling out already disadvantaged new entrants for treatment we don't have the stomach to impose on ourselves.
I hate to be leaving on such a down note, but that's all the time I have this go-round. Thanks again for listening.
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Jeremy, this complaint of yours makes good sense. The flip side is that by imposing it on only new lawyers admitted to the NY bar, it provides fair notice and doesn't disrupt any extant reliance interests. I'm not saying those issues deserve to supersede all other considerations. Indeed, I wouldn't say those points are adequate to address the distributive justice considerations implicit in your comments but it does seem like it's a plus in its favor.
Posted by: Dan Markel | May 2, 2012 2:38:43 PM
Dan, I might be inclined to agree with you if CJ Lippman proposed to apply this requirement beginning in, say, 2017. But as I read the statement in the NYLJ (I couldn't find any more formal statement on the Court of Appeals website), he doesn't. Maybe I'm misunderstanding, but it seems to me that he proposes to apply this new requirement to applicants for admission in 2013. Those applicants have already invested tremendous resources in their legal education, and the Court of Appeals is proposing to move the goalposts on them just as they're graduating from law school. Surely they have reliance interests too?
Posted by: Jeremy Sheff | May 2, 2012 3:22:09 PM
One thing that slightly mitigates the proposed NY rule is that bar admission tends to happen much later than in other states. From what I've seen, most states require you to submit all of your paperwork before sitting for the bar exam, and successful applicants are quickly admitted upon receiving favorable results. NY, on the other hand, does not accept paperwork until after you've passed the bar exam. If you are completely on top of things, that means you submit in the first week of December at the earliest. If you are a little slow, or if you have trouble getting one of your affidavits, it could take a few months longer. Regardless, you have up to two years after taking the bar exam to submit everything. All of which is to say that the "50 hours before admission" does not equal "50 hours during law school"—it could mean 50 hours during your first year of practice, or some split between law school and practice.
Still, I recognize this is going to hit hardest on graduates from lower ranked schools who are already having trouble finding jobs, and that it will be easiest on graduate from elite schools who are working for large law firms with institutionalize pro bono programs. It's just not quite as egregious as it would be in a state requiring very early submission of bar application materials (as is the case in Illinois, I believe).
Posted by: Charles Paul Hoffman | May 2, 2012 3:31:00 PM
Jeremy, you're right that law students who choose, say, St. John's or BLS over FSU or UF, have reliance interests that are being somewhat disrupted, but I guess if they've not taken the NY Bar yet, they can still go somewhere else. Admittedly, their exit costs from NY (especially if they now want to go to Florida) are not zero by any stretch, and they will, ceteris paribus, have a harder time taking up in a new state than people who were educated in that state, but those costs/reliance interests are still lower than those of people who are already enmeshed in practice in the NY. Ultimately, however, my sense is that a requirement of 50 hours of pro bono work is a net gain to the least disadvantaged, and the fact that it, in this case, is a requirement that putatively hurts some future lawyers more than present others, doesn't strike me as so terrible. Would it be better to have spread the "sacrifice"? Yes. But, sometimes the good but not perfect is better than no good at all, and it's possible the better option you prefer (and probably me) would have been impossible or very difficult to achieve. I have vague recollections from my clerking year (or some other time) that these impositions on extant lawyers are challenged as regulatory takings, etc.
Posted by: Dan Markel | May 2, 2012 4:18:54 PM
Challenged as a regulatory taking: see DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987) ("[A] court appointment compelling an attorney to represent an indigent criminal defendant is a taking of property for which just compensation is required.")
Posted by: Mark Regan | May 2, 2012 4:50:50 PM
Who is going to supervise these unlicensed law school graduates in their pro bono work? Are the members of the organized bar going to step up to do it? If they don't care to, who will make them? Doubtless this task, like so many others proposed by well-meaning people who think something ought to be done by someone, somewhere, will get shifted onto law schools. In New York especially, the politics of legal reform is completely bizarre. The bar, which ought to be the primary site of reform, is politically strong, and defends itself quite successfully. It also does a great job of defending (for reasons I can't understand) a front-end status quo of a largely worthless bar exam and a fundamentally pro forma process of bar admission, along with a back-end system of virtually zero professional ethical enforcement (which is more understandable, if deplorable). As a result, all reform efforts get focused on the law schools, which are politically weak.
Posted by: NY prof | May 2, 2012 9:02:24 PM
Do law school clinics count toward that 50 h number?
Also, condsidering that NY is the one and only state admitting foreign LLM students to its bar, I wonder: how are LL.M. students supposed to fulfill this requirement? Most of them cram for the bar, then go back to their home countries. Does pro bono work outside the US count?
Posted by: Positroll | May 4, 2012 9:17:49 AM