A Response to Ilya Somin on Justice Sotomayor's Endorsement of Mandatory Pro Bono Programs

[Cross-posted on Legal Ethics Forum]

Writing on the Volokh Conspiracy, Ilya Somin takes issue with Justice Sonya Sotomayor’s recent endorsement of mandatory pro bono by lawyers. (Reported here; non-paywalled summary here.)  Ilya was especially troubled by Justice Sotomayor’s comment that she believes in “forced labor” when it comes to providing legal access for the poor, even though the statement seems obviously intended as a wry metaphor.  Somin, however, took it seriously, comparing mandatory pro bono programs to slavery and communism.  

Missing entirely from Somin’s analysis is the fact that mandatory pro bono plans are always proposed as a condition of licensure – in other words, an exchange that is “forced” on no one except those who freely enter the profession.  That may not make mandatory pro bono a good idea, but it certainly takes it far out of the realm of involuntary servitude (unless, that is, you are among those who believe that taxation is presumptively theft).

Somin goes on to raise a slippery slope argument:

If we can impose [public service] on lawyers in order to provide legal services to underserved populations, why not on members of other professions, anytime we think forcing them to do additional work might benefit some underserved group or promote some other societal interest? (Emphasis added.)

But let’s look at actual proposals for pro bono obligations, which turn out to be incredibly modest.  The ones with which I am familiar call for 10-20 hours per year, to be performed at each lawyer’s convenience.  So it is not “anytime” and it is not much “additional work.”  In fact, the proposals typically call for something between 0.5% and 1.0% of a lawyer’s time, in exchange for the privilege of practicing law.  In concept, I see nothing wrong with extending a similar obligation to other professions, such as physicians, although our current system of public benefits – along with the medical profession’s long-standing tradition of volunteerism – makes that unnecessary.

Finally, Somin brings up the canard that “forced labor is unlikely to be a good way to improve legal services for the poor.”  Thus,

As experience in the communist world and elsewhere repeatedly demonstrates, forced laborers rarely do good work – especially if the task involves complex professional services where there are many corners that can potentially be cut. Here’s a piece of free (though not forced!) legal advice for my readers: if you are on trial for your life, your liberty, or even just a large sum of money, you probably do not want to be represented by a lawyer who only took the case because the government forced him to do so.

This is a complete red herring.  There are plenty of lawyering tasks that are helpful to the poor, but do not involve especially complex professional services.  No pro bono plan contemplates drafting unwilling lawyers to conduct trials in which life and liberty are at stake, and it is simply misleading to pose that in a parade of horribles.  Instead, lawyers would be given complete control over their pro bono caseload, with nobody required to step out of his or her comfort zone.

Pro bono work could include such matters as drafting simple wills, reviewing leases, handling uncontested divorces, and negotiating with welfare agencies.  Law school clinics regularly teach that stuff to second year students, who typically become quite capable by the end of the third semester.  Any lawyer who cannot do the same should not be practicing law.

Would lawyers nonetheless “cut corners” on pro bono cases?  I don’t think so.  There is such a thing as professional pride, and most lawyers of my acquaintance care about the quality of their work product, even in small matters.  Once a pro bono obligation became routine – something done every year, though only for a day or two – lawyers would certainly choose tasks that they can perform well and carefully.

Let me add one more consideration:  Ilya asserts that “If forced labor can be justified at all, it can only be in situations where it achieves some great good that cannot possibly be realized in other ways.”  The phrase “cannot possibly be achieved” does a lot of work in this argument, as Somin seems to contend that pro bono obligations can never be imposed so long as there is some other conceivable way to accomplish the same end.  Of course, there is always a “possible” alternative, even if it is economically unfeasible or politically impractical.  That is why judicial systems and bar associations (depending upon the jurisdiction) are empowered to select the most pragmatic solution to a problem, even if it is not the theoretically last resort.

And in any case, mandatory pro bono programs do offer a public benefit that cannot be achieved in any other way.  As we have seen over and over again, poor people are often confronted by local courts that abuse or disregard their rights in areas such as juvenile law, housing and eviction, consumer collections, civil forfeitures, and imprisonment for non-payment of fines.  For the most part, these practices flourish when they take place out of the public eye.  They are more likely to be exposed, and therefore remedied, when private lawyers regularly show up in those same courts. 

There are, as Somin points out, other ways to increase the provision of legal services to the poor and middle classes.  I agree with him that they should be tried.  A modest pro bono requirement, however, would be good for everyone.

Comments

[anon]

"A modest pro bono requirement, however, would be good for everyone."

Lubet repeatedly refers to imposing this requirement on "lawyers." ONe wonders if he thinks there should be an exception for law professors.

Although law profs tend to label as a "miscreant" anyone who says so, the dirty truth is that law professors are a particularly underworked bunch. Many spend way too much time fiddling around on the internet, and just plain goofing off, under the pretext of being "scholars," while producing nothing much of value, year after year, decade after decade.

Sorry, folks, teaching a couple of courses per semester (if that) and producing a piece of mediocre scholarship every three to five years (if that) is a part time job. Think not? Ask yourself how many times you've said the same of an adjunct teaching just as many courses as you do and producing more scholarship to boot: part-time faculty, no? Oh gee: I forgot going to committee meetings and eating every free lunch one can. Tough. So tough.

In this pages, one can see a long standing proposal (in the comments, of course) to require all law professors to do pro bono. This would reduce the haughty way that profs look down their noses at practitioners, force them to confront the inadequacy of their knowledge of the subjects they teach, and impel many to realize that if they truly hate the practice of law so much then perhaps they shouldn't be pretending to train practitioners.

[Doug Richmond]

I found Justice Sotomayor's endorsement of mandatory pro bono to be arrogant, elitist, and offensive. Nobody in America works less than a Supreme Court Justice, yet my guess is that she will not be turning down speaking invitations or part-time summer teaching gigs in exotic locations to serve the poor any time soon. Pro bono service should be voluntary, not mandatory. Ilya Somin's opposition to mandatory pro bono may be hyperbolic, but not by much.

[Eric Muller]

"Nobody in America works less than a Supreme Court Justice."

What on earth are you talking about?

[Eric Muller]

Steve, my dad and my in-laws are all refugees from Nazi Germany and my grandfather spent time in Buchenwald in '38. One of the intergenerational effects this has had on me is to tempt me to analogize things to fascism too quickly. In the line of work I do -- studying Japanese American removal and imprisonment -- this can be an occupational hazard, and over the years I have had to work (with varying degrees of success, no doubt) to pay attention to this in myself and try to see things through an historian's eye rather than the frightened eyes of my father and grandparents.

This is how I understand the occasional postings by a few Soviet/Russian-emigre law professors (not just Ilya) that analogize this or that American policy or policy proposal to communism. Given what I imagine their family experiences to have been under communist rule, I can understand why state-mandated labor would, at least on first impression, be very alarming.

[Doug Richmond]

What on earth am I talking about? Look at the Supreme Court's ever-declining caseload to start.

[Former Editor]

Doug,

Eric is right. Anyone with even a passing familiarity with the work a schedule of a justice knows just how hard they all work (very, very), declining number of cert grants notwithstanding.

[Captain Hruska Carswell, Continuance King]

Many of us Solos have been representing the so called "underserved" for years. It's called a neighborhood law office. Often times, I will schlepp to court for $150.00 on uncontested matters. I have resolved cases through plea agreements for as low as $67.50 as an "In-Court Lawyer" in my county. I am not complaining. I enjoy my work. It's something out of "Night Court," or lately, the lawyer James McGill in "Better Call Saul." The problem as I see it, is not the lack of availability of legal services to the underserved, it's that folks REFUSE to pay for it. They want it FREE. They would rather take a Public Defender, claim indigence and if they don't like the deal, magically come up with the money for a "Private." The folks I observe going Pro Se are typically insolent and suffer from Oppositional Defiant Disorder or worse, Anti-Social. Some are adherents of the Sovereign Citizen Movement. They want FREE and EXPECT FREE. Think Walmart, everyday low prices.

[No, breh]

I think that the underlying assumption that's the most problematic here is that all lawyers either do or should have the means (money and time) for this sort of thing. Anyone actually consider that others might be a little bitter about working for free when they can barely afford rent themselves? Or missing more time with their family on top of their normal 50 or 60 hour work week? Look, if you want to do pro bono work, then that's absolutely wonderful. But just about everyone in this profession already works like a dog, quite often for very modest pay given the debt obligations that go along with entering our ranks these days. Whether "forced labor" or not, mandatory pro bono is a terrible idea.

But let's not kid ourselves. Requiring people to work for free to acquire or maintain a professional license is still requiring them to work for free.

[anon]

The reason often heard from the professoriate to excuse them from pro bono legal services is amazing: they claim that they don't know how to provide legal services!

And this, with respect to what is usually the lowest rung in terms of demands on knowledge, training and experience: the property prof who can't handle an eviction, the estates and trusts prof who can't prepare an estate plan, the criminal law prof who couldn't handle the most simple defense, the torts prof who wouldn't have a clue about how to handle a slip and fall, the contract prof who couldn't competently draft a purchase agreement, etc, etc.

Think this is fantasy? If it isn't, let's get those folks, especially during the summer when most are loafing or enjoying their ever so bourgeois lives (oh, excuse me, working on "knowledge generation" on the cutting edge of critical issues in law), out there paying back for the lives of privilege most have led.

[Steve Lubet]

Mandatory pro bono requirements should not apply to lawyers for whom it would be a hardship. I will say more about this in a later post.

Law professors should definitely be subject to any pro bono requirements, and should do more pro bono work with or without a requirement.

[Lawyer, Interrupted]

You claim a slippery slope argument. But what about being a lawyer makes the job so different from every other job that we need to impose a pro bono requirement. Many jobs require a professional license, including Barber, Locksmith, Electrician, Plumber, Accountant, Engineer, Physician, Nurse, and Teacher. Many of these professionals earn substantial incomes far in excess of the average lawyer. You can very reasonably argue that requiring pro bono services from them would achieve a public benefit that could not be achieved in any other way.

But I sense the pro bono requirement is an ideal espoused by people who think of the law as a calling, who believe lawyers have a special place in society, and who believe lawyers should repay society for the privilege of being a lawyer. It's easy to think that way when you're a judge, a law school professor, or otherwise have a successful legal career. For most lawyers, it's just a hard job. For most law school graduates of the past decade, it's been a poisoned chalice. ABA law schools only produced 22,342 graduates in 1973, so older lawyers had salad days that younger lawyers will never experience.

There's also the issue of the large number of non-practicing lawyers. Over 1.5 million people graduated from ABA law schools in the past 40 years, but only about half that number are actually working as lawyers according to the Labor Department. The overwhelming majority of ABA law school graduates pass the bar exam eventually, so there are several hundred thousand non-practicing lawyers. Many even pay the registration fee to maintain their license. I suspect many would retire their license rather than submit to a pro bono requirement. I think state bars would be upset to lose that revenue since it generally goes to administrative costs and the Lawyers’ Fund For Client Protection.

[law talking guy]

Fwiw, I find Justice Sotomayor's suggestion to be out of step with how the legal profession works these days. For that reason, it's not surprising to me that most of these proposals come from judges and professors.

We'd be better off if we (1) reformed the rules about who gets to provide legal services, and (2) reformed legal process in basic matters (eviction, divorce, etc.) so that pro se representation was less of a disadvantage.

[Captain Hruska Carswell, Continuance King]

Lawyer Interrupted:

You point is well taken about 1973 being the "salad days" of law practice. Lawyers for the middle class and below were scarce. If you didn't attend a Big Law feeder or didn't want firm life, you worked for the gub'mint or hung a shingle and did well....50K or better when Upper Middle Class executives in manufacturing earned 20-35K with a new "company" Caprice or Electra 225. The Practice was a ticket to a sustainable Upper Middle Class lifestyle. The one or two lawyers in town were the big Cheeses. Imagine getting a thousand dollars back then for a simple plea. I would kill to have that opportunity.

Within that context, we had decisions like Gideon and Arginsinger that mandated free attorneys for the indigent. I believe its time to revisit Gideon. Quite a lot of us Solos in this grotesquely oversaturated legal market, compared with 1973 "salad days," will accept "limited means" clients. Frankly, with my 4 bill Bronze Level Obama Care plan and student loan coming due, I have no choice and no other work. Today, I find myself competing with the Public Defender's office. I have had folks tell me that they will not sign over their bond money as my fee because they want a Public Defender. It's not that their indigent, they just want a FREE LAWYER. Many of my struggling colleagues will accept those cases and civil matters for a few hundred dollars. We have no choice because there is some other desperate Solo (from even Harvard or Chicago) who would like the fee and work as well on every single corner.

[George Gray]

I agree that law profs ought to do pro bono work where feasible. What about a law prof at a law school located in a state in which the prof is not admitted? Ideas?

[Steve Lubet]

"What about a law prof at a law school located in a state in which the prof is not admitted? Ideas?"

Federal court. Amicus briefs. Pro had vice. Working with a local lawyer. Research for a legal services organization.

[Lonnie]

Typical limousine liberalism in action. It's certainly very easy for the profession's elites to foist an additional burden on the solo practitioner struggling to keep the lights on, or the first year associate working 60 hour weeks to hit his billing requirement so he can keep his job and pay off his student loans.

Forcing someone else to work a few extra evenings and weekends is a small price to pay to feel good about your profession, right?

[twbb]

"I agree that law profs ought to do pro bono work where feasible. What about a law prof at a law school located in a state in which the prof is not admitted? Ideas?"

Get admitted. I think an ABA mandate that all law professors with JDs be required to be licensed in the state in which they teach would be a good idea.

[[M][@][c][K]]

"What about a law prof at a law school located in a state in which the prof is not admitted? Ideas?"

Take the state bar exam - and hey, since your students will presumably have to, think of it as a practical teaching experience.

The last time this came up I also suggested that it be mandatory that law professors and especially law deans be admitted in the jurisdiction where their state was located, in part to put them under state bar discipline. This kick of a protracted amount of whining about the burden on the poor law professors, the cost of the bar dues and worst of all the CLE.

Law schools and law professors and deans objecting to having to take CLE is particularly ironic. When mandatory CLE was being introduced law schools, profs and deans were at the frontline pushing for it - lawyers saw this as transparent rent-seeking - the schools and profs expected to be giving the CLE courses for fun and profit. Interestingly an exception is found in many CLE rules, that teaching certain law courses or seminars, or some legal writing can get you CLE credit too (and I have availed of it.) So to be clear many in the very group that pushed imho hardest for CLE sees it as an undue hardship, and "horrors" one they'd have to endure if were they obliged to do pro-bono work that they too are otherwise enthusiastic for.

[anon]

Is the suggestion here that bar admission and a continuing CLE obligation obviates the need for faculty to have practice experience? If so, I disagree with it. Bar admission and CLE classes are helpful but simply not substitutes for actual legal practice.

[[M][a][c][K]]

That is certainly not my suggestion. I think it is of major importance that the gulf in experience and professional life between academic lawyers and practicing lawyers be narrowed, and certainly pro bono offers a significant opportunity for professors to experience aspects of legal practice - and since CLE and bar admission is part of the life of practicing lawyers, they should have to deal with that too.

One thing that is very apparent to anyone reading posts on this blog is the enormous gulf that exists between legal practitioners and law professors, bot in terms of their working lives, their professional experiences, economic pressures and practical knowledge. If one recognises that as a problem (and many professors do) then it needs to be addressed.