This is an important week for the issue of mandatory law student pro bono, and also for the moral status of the bar.
As David Udell and Deborah Rhode explain in a National Law Journal article, The ABA body responsible for law school accreditation has to decide whether to include a requirement for law student pro bono in law school graduation requirements. So far the omens are not good:
Back in November 2012, when we asked the ABA’s Standards Review Committee to include the 50-hour requirement in the revised accreditation standards that it was then developing for consideration by the Council of the ABA Section on Legal Education and Bar Admission, the Committee rejected the idea, noting in its minutes that it “did not agree that such a requirement was correctly placed in the accreditation standards.”
Years earlier, however, the dialogue had already moved beyond the baseline question of whether the ABA’s standards should cover pro bono service.
They do, at Section 302(b)(2), which directs law schools to provide “substantial opportunities” to students to perform pro bono service. The real problem is that “substantial” has never been defined. It’s that vagueness that requires correction, as was underscored in May 2012 when New York moved to create its own 50-hour pro bono service requirement as a condition of admission to the New York bar.
Perhaps the ABA will find it informative that the Conference of Chief Justices passed,on July 31, a Resolution encouraging the concept at the state level. The key language:
NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices encourages the Chief Justice of each state to discuss with the Deans of their law schools a proposal that students perform pro bono service prior to law school graduation as a condition of admittance to the State bar.
The whereas clauses make the case really well:
WHEREAS, it is vital to the state courts that lawyers commencing their legal careers be qualified to engage in the practice of law; and
WHEREAS, pro bono services performed by law students during law school are a form of essential training which provide students with a real opportunity to learn about the law, the courts, and the students’ own professional responsibility for helping to assure access to justice; and
WHEREAS, it is a matter of concern that not all law schools currently assure that all students participate in experiential learning opportunities that would enhance their education in the skills necessary to practice law; and
WHEREAS, the American Bar Association Standards for Legal Education presently only state that law schools shall provide a substantial opportunity to students for experiential learning; and
WHEREAS, in order to assure that new lawyers will emerge from law school with a real world understanding of litigants and courts, the New York Unified Court System has adopted a new fifty-hour pro bono service requirement for applicants seeking admission to the New York bar; and
WHEREAS, courts and legislatures across the country will likely give serious consideration to the adoption of statewide experiential learning requirements, the modification of the ABA Council of the Section of Legal Education and Admission to the Bar Standards for Legal Education offers an especially effective manner to achieve the goal of more capable practitioners while also providing enormous value to the individuals in our justice system who will be the direct beneficiaries of these services[.]
What the opponents seem to forget is that this is about far more than getting a few more pro bono hours out of law students, or even impacting the long term views of young lawyers. It is about whether the institutions of the bar recognize that they are organizations with a responsibility to support and facilitate access.
Unless they do so, the bar will be at increasing risk of loosing the moral authority that is the only ultimate justification for the highly privileged position as self-regulators that it enjoys in many states. Moreover, at even greater risk will be the lawyers professional monopoly. If a monopoly self-regulated bar puts self-protection first, then why keep it?