Law Schools and the Duty of Pro Bono Service

Chicago Appleseed, News

Recently, the Wall Street Journal ran a short piece commenting on The Imposition of Social Justice Morality in Legal Education by Julie D. Lawton in Volume 4, Issue 1 of the 2016 Indiana Journal of Law and Social Equity. Ms. Lawton is an associate Clinical Professor of Law and the Director of the Housing & Community Development Legal Clinic at DePaul University College of Law. The editorial says that Ms. Lawton “worries” clinical education in law schools (almost exclusively serving poor populations), post-graduate support for public interest careers (in the form of school-paid fellowships and loan repayment assistance), and a new trend toward pro bono requirements for graduation is a “form of indoctrination” which imposes morality on students and limits exposure to competing ideas in law schools.

In its entirety, The Imposition of Social Justice Morality in Legal Education is—unsurprisingly—more nuanced than the editorial but still characterizes the relationship of law schools with the pro bono community as improper and unbalanced.

While Lawton acknowledges that there is a significant failure in the U.S. where most people facing the court cannot afford an attorney to represent their interests, she believes it is improper for law schools to “indoctrinate” students with the notion that lawyers have a duty to the public interest. This is contrary to many rules of professional conduct across the nation which explicitly acknowledge the professional duty to legal aid.

American Bar Association Model Rule of Professional Conduct 6.1 advises that every lawyer should aspire to render at least 50 pro bono hours every year, emphasizing the professional consensus that lawyers have a responsibility to offer assistance to persons who can’t afford it. Forty-three states have adopted Model Rule 6.1 in some form, demonstrating the widespread acceptance of this principle within the profession. Additionally, eleven states currently give continuing legal education credit for pro bono work, including New York, Minnesota, Colorado and Louisiana. The substitution of pro bono work for continuing education demonstrates both that states value the experience of public interest work, as well as shows that attorney registration commissions have accepted a role in encouraging pro bono work. It follows that law schools have the same duty.

The Illinois Supreme Court Commission on Access to Justice offers stark figures about the demand for legal assistance and need for pro bono assistance in Illinois. Illinois has about 400 legal aid attorneys but 2.2 million residents who are considered low income (those living at 100% – 199% of the federal poverty level). A 2003 study found that low-income people in Illinois face more than 1.3 million civil legal problems per year. With only one full-time equivalent legal aid lawyer for every 4,752 legal problems faced by low-income individuals, people needing legal aid get it for only one out of every six legal problems they face. Roughly 1/3 of registered attorneys in Illinois report pro bono hours annually and nationwide, only about 1/3 of legal employers have a formal pro bono policy with only about ¼ of those employers counting pro bono work toward required billable hours (Pro Bono in Principle and in Practice: Public Service and the Professions, by Deborah L. Rhode).

Lawton’s article acknowledges the justice gap, calling it a “reflection of society’s choices and the failures of the practicing bar” (at p. 62). However, she argues that once we accept there is a justice gap and societal need for pro bono work by attorneys, we nonetheless have not justified placing that expectation on law students nor justified teaching law students it is the duty of practicing attorneys to fulfill that need with pro bono work. She characterizes the funding of legal clinics as the use of “scarce and valuable tuition dollars of all law students, regardless of the students’ support for social justice, to impose educators’ social justice morality on law students” (at p. 67). However, she glosses over the practical learning experience the clinics offer and does not explain what alternate practical learning experience exists within law schools. Clinic experience is increasingly viewed as a critical component of legal education but for law schools to enter into the private practice of law in competition with the private bar is unlikely and impractical. It does not make much sense for students to provide free legal service to clients who can afford to hire lawyers, while poor people are deprived of their day in court because they lack counsel. Nor would that serve justice.

Lawton believes an emphasis on public service in law school is incompatible with rising tuition costs and with the breadth of legal practice options available to students upon graduation. However, research has shown that law school pushes students away from an interest in public service as they progress through the curriculum and that career service offices at law schools offer insufficient support for students pursuing careers outside large law firms. (See a list of law review articles following this post for some references)

At Chicago Appleseed, we believe that teaching law students a duty to the public interest is compatible with allowing them the full range of career choice. The ABA recently revised its accreditation standards to require law schools to provide “substantial opportunities” for student participation in pro bono work (at p. 62). Currently, almost forty law schools require either pro bono or public service as a condition of graduation. While only New York now requires pro bono work as a condition of admittance to the bar, three other states (California, Montana, and New Jersey) are considering imposing a pro bono requirement on applicants to their bars (at p. 67).

That’s why we’re proposing a new rule in Illinois to award MCLE credit for pro bono work. Under the suggested rule, a lawyer could earn 1 hour of MCLE credit for every 5 hours of pro bono work, up to a maximum of 3 hours of MCLE credit. This is the same approach taken by most of the other states that give MCLE credit for pro bono work. To further encourage attorneys to perform meaningful amounts of pro bono hours, the rule would allow one of those hours earned through pro bono to satisfy the professional responsibility requirement, only if the maximum of 15 hours were performed.

Adoption of the proposed rule would increase public trust in the courts by improving access to justice through representation. The proposed rule promotes the ethical responsibility to serve our communities that is adopted in so many state codes of conduct for lawyers. Finally, the proposed rule serves the goal of continuing legal education requirements: to improve attorney performance through continued education and contact with more experienced attorneys.

Professor Lawton raises meaningful questions about how to address the justice gap and what role law schools should play in the formation of their graduates’ careers. But because the lawyer’s duty to serve the public interest through pro bono work is recognized by most attorney regulatory agencies, we must disagree that it is inappropriate for law schools to support public interest work through pro bono requirements and clinical programs which primarily serve persons unable to afford private counsel.

 

 

Law Review articles discussing how law schools alienate students from the public interest: