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.