Introduction I. Duty or Charity? A. Theoretical Arguments for Pro Bono as Charity B. Traditional Arguments for Pro Bono as Charity C. Traditional Arguments for Pro Bono as a Duty D. Theoretical Arguments for Pro Bono as a Duty 1. Law as a Higher Calling 2. The Idea of a Higher Calling and the Lawyer Statesman 3. Equal Justice Under Law E. Lawyers as Upholders of Human Dignity II. What Should Count? A. Economic Justice B. Who Deserves to Be Poor? C. Recommendation: Low Bono D. Racial Justice E. Recommendation: Immigration Law, Prisoner's Rights and Re-entry, and Racial Impact Statements F. The Lawyer's Role in Democracy 1. Democracy and the Lawyer-Statesman 2. Democratic Participation and Equal Justice Under Law G. Recommendation: Early Voting and Election Protection III. Will It Work? Conclusion: "The Mindful Assassin?" It is the legal profession's commitment to equal justice and to the practice of law as a higher calling that has made service to others an intrinsic part of our legal culture. (1) INTRODUCTION
Today in the United States, the richest country in the world, you can lose your home, your financial independence, and even your child as a result of a civil court hearing where you opponent has access to legal counsel and you do not. Astonishingly, it is not hyperbole to say that in New York courts this injustice happens almost every time. A 2010 study confirmed that ninety-nine percent of tenants are unrepresented in eviction cases in New York City, ninety-nine percent of borrowers are unrepresented in consumer credit cases, and ninety-seven percent of parents are unrepresented in child support matters. (2) In contrast, it is estimated that eighty-five percent of the landlords in New York Housing Court are represented by counsel. (3) One might surmise that an even higher percentage of financial institutions have lawyers representing them in consumer credit hearings. And if child welfare seeks to remove a parent's custody, the government always has representation. In these cases where lawyers litigate against laymen, Judges have reported that they have seen unrepresented litigants lose claims that were meritorious, and they would have won if they had understood the law or knew how to present the evidence correctly. (4)
In the context of this desperately unjust state of affairs, the Honorable Jonathan Lippman, Chief Judge of the New York Court of Appeals, announced on May 1, 2012 that New York would become the first state to require its bar applicants to complete fifty hours of pro bono service as a condition for bar admission. (5) Judge Lippman explained that this additional requirement would help the New York Bar reach multiple goals, helping the profession grapple with the continuing and growing gap in access to justice, preparing law students to enter the legal workforce with "practice ready" practical skill sets, and most importantly, according to Judge Lippman, instilling in new lawyers a more pro bono and public service oriented sense of professional identity:
If pro bono is a core value of our profession, and it is--and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should--these ideals ought to be instilled from the start, when one first aspires to be a member of the profession. (6) Judge Lippman certainly fits the definition of a "Cause Judge," his cause being the fight to close the gap in access to justice, and his strategy being the use all of the resources at his disposal to create a more just legal system. (7) With the introduction of Lippman's law, however, Judge Lippman finds himself in the curious position of advocating for altruism through self-interest--in other words, persuading law students to serve others in part because it will help them gain more "practice ready" skills for their own careers and improve the quality of their own sense of professional identity. This Article explores the problems that this contradiction creates, considering the bona fides of Lippman's law and the broader questions it raises.
These broader questions include the following: Is service to others actually an intrinsic part of our legal culture? Should it be? Why or why not? If pro bono is a duty, why enforce the duty only on law students and not on the practicing bar? How does Lippman's law define Pro Bono, and how should it, in order to meet the stated goals of the rule? In terms of reaching those stated goals, will any of this actually work?
Part I of this Article reviews the longstanding debate as to whether pro bono is a duty or charity. If lawyers do have a duty to engage in public service and bridge the access to justice gap, it seems practical for the profession to go beyond triage and instead to focus on the root causes of the access to justice gap. More could be accomplished by focusing on the crises of economic injustice, racial justice, and democratic participation that brought us here. Part II more specifically articulates why these are the crisis areas, and offers some recommendations for addressing them. Part III explores the question of whether this requirement will meet its stated goals, particularly its most prominent goal of instilling in bar applicants a sense of professionalism that values public service. Ultimately, while a strong argument can be made for a pro bono duty, in practice the rule as currently formulated does not go far enough to achieve its stated goals. Only a more targeted program with more supervision, oversight, and feedback--and ultimately, mandatory pro bono for practicing lawyers--would do that.
DUTY OR CHARITY?
Soon after Lippman's Law Day speech, he appointed an advisory committee that issued a report in September of 2012 further articulating this vision. (8) Later that month. Judge Lippman entered an order to amend the Rules of the Court of Appeals to add, "[section] 520.16 Pro Bono Requirement for Bar Admission," and the requirement went into effect on January 1, 2013. (9) As a result, beginning January 1, 2015, no one will be admitted to the New York Bar unless they have completed fifty hours of pro bono service. (11)
This rule has already had an impact extending beyond the nearly 10,000 annual bar applicants in New York. Courts and state bar associations in California, Connecticut, Montana, and New Jersey have already begun formal inquiries into the possibility of adopting the requirement, and it seems inevitable that eventually every state in the country will have to take a position on this issue." It has sparked a national conversation--and a national controversy.
Although the highly passionate nature of the debate would suggest that the idea of pro bono as an enforceable requirement for bar admission is unprecedented and cataclysmic, that is not so. Of the 176 law schools that offer pro bono opportunities, thirty-nine already make pro bono service a requirement for graduation. (12) And graduation remains a requirement for bar admission in most states in the country, meaning for law students at these schools, pro bono is already an admission requirement.
The real clash of worldviews here lies hidden beneath the surface. Literally hidden--the minutes of the meetings that would constitute the legislative history of rule have been sealed from the public, and will remain so for an indefinite time. (13) But we can glean the positions of the stakeholders here from public statements and from the decades of debate that has raged over the related question of whether pro bono should be mandatory for practicing lawyers. Those who oppose the requirement most vociferously believe, either on principled theoretical grounds or on the grounds of tradition, that pro bono is charity--a public service donation that one should choose whether or not to provide based on the ruminations of one's own conscience. (14) To the contrary, by issuing this mandate Judge Lippman has firmly taken the opposing position that lawyers have a mandatory duty to engage in pro bono, whether they like it or not. Which side is right?
Theoretical Arguments for Pro Bono as Charity
Upon the announcement of the rule, University of Colorado law professor Paul Campos called it "preposterous" and "the platonic form of limousine liberal idiocy." (15) He argued that Judge Lippman was "using professional licensing requirements to enforce [his] political desires," specifically his desire to force "rich people to transfer wealth to poor people." (16) Campos wasn't alone in his passionate critique of the rule. Ronald Rotunda, author of one of the most prominent textbooks on legal ethics, argued that the large gap in access to justice did not justify the creation of this requirement. (17) According to Rotunda, "When the government deems the poor in need of food stamps, it provides food stamps; it doesn't order the grocer to give them food as a condition of his business license. Why should legal services be different?" (18) Additionally, Susan Cartier Liebel, Founder and CEO of Solo Practice University, argued that Lippman's law "definitely does not fit the description of pro bono. It is classic indentured servitude." (19)
These criticisms rest on arguments made by past opponents of mandatory pro bono for practicing lawyers. Campos' argument echoes the arguments of critics who believe mandatory pro bono coerces lawyers into representing the poor in a project of the political left. (20) If law practice is political speech, so the argument goes, then pro bono legal representation itself is leftist political speech, and it would follow that forcing a lawyer to engage in political speech against their will would violate their First Amendment rights. (21) On the extreme end, some have argued that, because legal work is labor, if pro bono becomes mandatory it would be a violation of individual liberty and would constitute involuntary servitude in violation of the Thirteenth Amendment. (22) It would be slavery.