Paul L. Caron
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Thursday, March 19, 2015

McGinnis: The California Bar’s Self-Serving Proposal to Require 50 Hours of Pro Bono Work by New Lawyers

California State Bar (2014)Following up on Sunday's post, California to Require 50 Hours of Pro Bono Work For Law Students to be Admitted to Bar:  John O. McGinnis (Northwestern), The California Bar’s Self-Serving Proposals:

Last week California followed New York in proposing a requirement of 50 hours of pro bono work for prospective lawyers.  Unlike New York’s existing rule, which requires lawyers to serve their time before admittance to the bar, the California proposal permits them to meet the requirement shortly afterwards as well.  California’s proposal also requires 15 “units” of “experiential learning,” within such activities as clinics or externships, that can be satisfied either during law school or separately in a private externship. This proposal is an unfortunate one–both protectionist and ideologically one-sided.

First, assuming that units translate to credits, the requirement of 15 credits of experiential learning —a significant proportion of law school coursework—will make some students’ legal education less valuable and likely make it more expensive for everyone.  Some students would benefit more from the additional course work crowded out by experiential learning. For instance, those interested in corporate and commercial law may get more from exhausting the business law curriculum than from taking available experiential learning in areas not directly relevant to their careers. Students are adults and can make such decisions for themselves. ...

Second, this regulation has ideological implications. Not all law school clinics have missions that can be characterized as ideological, but quite a few do, and essentially all of these clinics serve left-liberal causes. Thus, given the universe of clinics in law schools, the experiential learning requirement will provide more resources and free labor to the left-liberal legal agenda.

The requirement of 50 hours of pro bono time effectively levies an additional tax on becoming a lawyer, precisely at the time when law schools are having trouble attracting students. Its protectionist nature is clear, because it would apply only to those not already members of the bar. It is not being imposed on practicing lawyers, even though they would clearly be better at providing pro bono services than neophytes.

Update:  Clinical Law Prof Blog:  Teaching Pro Bono and Reclaiming the Virtue of Public Citizenship, by Jeff Baker (Pepperdine):

Some critics have leveled extraordinary indictments of the new rules.  For example, like Prof. John O. McGinnis of Northwestern here and like the commenters on Paul Caron’s blog here, these critics variously declare that these requirements (1) are protectionist rent seeking from the guild, (2) are schemes for leftist, socialist ideological indoctrination, (3) are too expensive, (4) are only useful to students interested in litigation or public interest, (5) are slavery or involuntary servitude, (6) are ineffective to address access to justice, and (7) are unconstitutional.  

At the heart of these complaints is a flawed conception of the policies.  That flawed conception flows from an impoverished perception of the profession and a diminished view of lawyers’ roles as public citizens.

To hear these complaints from conservative voices is puzzling, because the call for pro bono is a call for a basic good: access to justice and the expansion of the Rule of Law through the ancient institution of the bar, provided privately and locally by citizens in their own communities.   This is wholly consistent with the Catholic social teachings of subsidiarity and its Calvinist cousin, sphere sovereignty.  It is a conservative virtue that civil society ought to respond to these needs rather than leaving them to government preemption, but here are critics calling the bar’s policies some kind of shady, redistributive scheme. ...

Simply, it is the role of law schools to teach and train lawyers, and we legal educators are remiss if we do not teach our students the virtues of our profession and train them how to do exercise them.   We make law students do things against their will and inclination all the time, every day, because we have decided somewhere along the way that they need to know it.   We force them to take torts, contracts and property.   We force them to write long memos and briefs.  We require them to endure relentless reading assignments.  We subject them to stressful exams, and we cold call them to test their critical skills under pressure.   We do all of these things, and more, to prepare them to be lawyers.  We make them take a bar exam.  We erect barriers to the profession for good reasons. Why would we not require them to render service to the poor so that they learn about the great calling of lawyers and so that they learn how to do it well? ...

Some critics proclaim that pro bono programs or law school clinics are inherently liberal or politically ideological.  These critics either lack exposure to enough programs or lack imagination to see how these programs can be empowering to the communities they serve, regardless of politics.  Schools across the political spectrum - from Berkeley to St. Thomas, from Harvard to Pepperdine, from Vanderbilt to Faulkner, from American to Notre Dame - have clinics and programs committed to the professional formation of students, as lawyers of integrity, compassion, humanity and hope, led by teachers of diverse convictions and causes.  

Although my politics have evolved, primarily for reasons of faith, I was reared a conservative in conservative communities.  My people taught me that caring for the poor was indeed an obligation, just not the obligation of the government, that people should learn to fish for themselves to escape the “welfare mentality.”   In these new pro bono requirements, we see an effort to equip lawyers to take up the cause of the oppressed and the poor, the fatherless and the widow, the least of these, as a social and moral obligation of a privileged profession.  These pro bono requirements will promote better outcomes, better access to justice, and better service to clients, which will lead to less dependence, more stability, and more virtue in the commonweal. ...

California’s new rules are good and worthy.  They may be disruptive to old models of legal education, but that disruption is righteous and useful.  The requirement for pro bono will promote and sustain the profession as class after class of law students better understand the public virtue of the profession.  The requirements will promote access to justice by expanding and improving the capacity of pro bono lawyers to do more with law student help, then preparing those students to take on the work themselves when they enter their rich practices.

https://taxprof.typepad.com/taxprof_blog/2015/03/mcginnis-the-california-bars-self-serving-proposal-.html

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Comments

Here's the problem: state bars seem to recognize that clinical experience is a necessary component of training lawyers, but these proposals are insufficiently radical to achieve this goal. The legal profession is nearly the only profession (and perhaps the only profession) that requires a higher education component, examination, continuing education, and a fitness for practice requirement for licensing that does not also have a significant clinical experience requirement that must be completed before the practitioner obtains a license.

Medical professionals (doctors, dentists, nurses, etc), certified public accountants, teachers, engineers, etc. all must complete experience requirements before they qualify for a full license. Medical professionals have residency requirements, accountants must complete 1800 hours of working experience after passing the CPA license before they are licensed, teachers have to get classroom experience. The legal profession is somehow different from nearly every other similar profession: lawyers simply pass the bar exam and are licensed.

This model worked in the past when most law school graduates could secure employment at graduation and worked in firms with intensive early career mentorship and clients that were willing to pay the cost of training new lawyers. That era has now passed, and state bars should modify licensing requirements for new lawyers to include significantly more clinical experience than 50 hours but perhaps without regard to compensation. Medical residents and new accountants are compensated, for example. Why not use a similar model for attorneys?

Posted by: Chris | Mar 19, 2015 6:57:26 AM

"First, assuming that units translate to credits, the requirement of 15 credits of experiential learning —a significant proportion of law school coursework—will make some students’ legal education less valuable and likely make it more expensive for everyone. Some students would benefit more from the additional course work crowded out by experiential learning. For instance, those interested in corporate and commercial law may get more from exhausting the business law curriculum than from taking available experiential learning in areas not directly relevant to their careers."

Why can't there be experiential courses in corporate and commercial law? I think students would get more out of a practical course in secured transactions than a purely theoretical one.

Posted by: Scott Fruehwald | Mar 19, 2015 9:05:19 AM

I agree with Jeff Baker (Pepperdine). Loyola-LA has had a 40-hour pro bono requirement as a condition of graduation for more than a decade. I was instrumental in getting it passed. My argument was that working for real clients before graduating would give students a reality check and help ground the remainder of their doctrinal education in the real world of legal practice. It has done so. Along with other unique features of our program, it has given Loyola graduates the reputation of being billable from Day 1. Law firms love our grads.

Prof. McGinnis' left-wing conspiracy theory is simply wrong. At Loyola-LA, students may meet the requirement by performing work that is legal in nature for a 501(c)(3) organization under the supervision of an attorney. Work for the Pacific Legal Foundation, for example, would generally qualify. The fact that most students choose less conservative organizations with which to work may reflect America's current generational divide. (Most actually choose organizations that provide direct client services, not cause-oriented oriented organizations.)

Posted by: Theodore Seto | Mar 19, 2015 9:16:38 AM

" We erect barriers to the profession for good reasons. Why would we not require them to render service to the poor so that they learn about the great calling of lawyers and so that they learn how to do it well? "
Because we do so at the expense of the poor. It is like telling the poor, you get a medical intern instead of a resident or attending.
I am a conservative law professor, one of a few. I am out numbered at my school at a ratio of 10:1. And I don't support this idea of the State Bar of California. Why I do acknowledge that I have a personal responsibility to the poor, widowed, fatherless, etc, it is MY personal responsibility and it should not be mandated by anyone. While my God tells me to do this, my state bar should not. Perhaps someone else's god or lack there of tells them something different in reference to the poor etc. Additionally if I am required to do something then I lose out on the blessing I would receive if I did it without compulsion.

Posted by: Cheyanna Jaffke | Mar 19, 2015 1:31:35 PM

@Prof. Seto, Evidently firms don't love your grads that much, as only 60% of your school's 2013 class found full time, long term bar passage required or JD advantage jobs within nine months of graduation. 20% your grads were employed in short term and/or part time positions and an additional 20% were completely unemployed.

http://www.lstscorereports.com/schools/loyola-la/jobs/2013/

Posted by: Lonnie | Mar 19, 2015 2:23:49 PM