Mandatory Service as an Abuse of Regulatory Power

To great public fanfare, Chief Judge of the New York State Court of Appeals Jonathan Lippman announced earlier this week that from this time forward all applicants for the New York State Bar will have to demonstrate that they have performed 50 hours of pro bono work in order to be admitted to the bar. 

I regard this action as a dangerous abuse of licensing power.  The purpose of a license is (if it has any purpose at all) to assure that individuals in question have the ability to perform various kinds of tasks. The standard tests that have been used for this purpose, most notably the bar examinations, are at best a poor proxy for this result. The chief demerit of that system is that it excludes people who might well be able to practice law, and it does so on the implicit assumption that individual clients are unable to sort out the wheat from the chaff when it comes to hiring new clients. That approach is in general a mistake, for even if individual consumers cannot make the best choice, all sorts of intermediate institutions can fill that gap, free of any involvement from the state.

The conditions imposed in this case are said to relate to competence to practice law. But the insistence that the work be done to stop foreclosures and evictions, instead of to facilitate them, puts an ideological thumb on the scale, which at the very least calls into question the impartiality of the bench that has decided that one side of dispute counts as service in the public interest whereas the other does not. A requirement that just asked for 50 hours of legal work, paid or unpaid, in any direction, might be acceptable. Yet even here I am most uneasy because there is nothing which prevents 50 hours from becoming 500 hours, until the established bar has developed a de facto entry requirement against new admits.

The precedent here is also dangerous because it can be so easily extended to other professions on the ground that the same crying need for free assistance can be demonstrated.  What is to prevent the state from requiring that doctors give 50 hours of public service before they are licensed to practice medicine? Worse, there is nothing that says that the brunt of these new regulations must fall on new members of the profession. Why not require that all partners in major law firms devote 50 hours to pro bono work, which would mark a huge underutilization of their talents?

 It is in general wholly illegitimate to tie wealth redistribution to licensing, no matter how great the claims for public need. The correct process in all cases is to rely on two different strategies to attack this problem.  The first is to let various law firms run their own pro bono programs, which they do in response to strong lawyer demand.  The second is to publicly fund these services—assuming that the electorate can be made to go along.  The effort to sidestep the political process may sound high-minded. But in practice it is a form of extortion. The general doctrine of unconstitutional conditions is intended to make sure that the conditions imposed on the use of the government’s licensing power do not allow it to extend its authority into areas to which it should not run.  This recent announcement is a good reason to recall its  importance in an age of ever greater regulatory overreach, a process from which the New York State Court of Appeal is not exempt.

  1. EJHill

    Available at the door after the meeting:

    Bar2.jpg

    Bar1.jpg

  2. Paul Kingsbery

    The legal profession is unique in that admitted attorneys are given special access to represent individuals before state institutions (courts, administrative agencies, etc.).  Because of this privilege, and because attorneys are in a sense public citizens, they are often charged with duties not expected of private citizens.  If anything, Judge Lippman’s proposal represents a return to earlier principles about the public obligations of attorneys, rather than a novel abuse of regulatory power. 

    I think the historical roots of the courts’ supervision of the legal profession are sufficient to distinguish this licensing issue from Professor Epstein’s hypotheticals. 

  3. Fake John Galt

    So to help those people that can not afford lawyers the state bar is requiring lawyers that it has yet deemed to be competent must help them? So if the case fails can the client appeal on the grounds the did not have competent legal representation? Their attorney after all did not yet pass the bar.

  4. radicalbiochemist
    EJHill: Available at the door after the meeting:

    Yep.  That pretty much nails it.  What it means to “volunteer” in the mind of a statist.

  5. Bulldawg

    When I first joined the State Bar of Georgia (1996), in my home circuit, we were required to give five years of public defender work.  It wasn’t actually pro bono, because we did get paid, maybe fifty dollars an hour, albeit a good bit less than our regular hourly rates.  Anyway, I thought then that it was a good idea and had no problm with it.  We were forced to get in front of judges early in our career, get to know other lawyers, policemen, criminals, etc. which has a positive function in one’s career as an attorney, whether one practices criminal law or not.

    Lawyers are entrusted with a special privilege and along with that privilege, I believe, comes the duty to serve pro bono publico.

  6. John Murdoch

    When an engineering major graduates from college, he or she has to demonstrate several (five, in the case of electrical engineers) years of professional responsibility before even being able to take the P.E. exam. 

  7. Guruforhire

    It is the official position of the US Government that one does not own one’s own labor, and has been since 1916.  The (state) government can make you do any work it wants you to within reason, without compensation.

    Nor is involuntary servitude, involuntary servitude if its compulsary service to a public end.  Nor does the 14th amendment’s due process clause entitle you to being fairly compensated for your time.

    Butler v. Perry is an interesting read.

  8. Douglas
    DocJay

    John Yoo: I don’t have much of a problem with it.  I don’t like the bar’s control over the legal profession, which prevents competition in the legal markets, and should be done away with.  But if we are to have state bars controlling who may enter the profession, I don’t have a great objection to the requirement for pro bono services.  What bothers me more often is the ideological slant of many pro bono opportunities, which are often slanted toward engineering “social change” through advocacy lawyering.  I would like to see more pro bono opportunities to advance free markets, such as representing small businesses and individuals who want to challenge irrational, wasteful regulations. · 9 minutes ago

    What can they mandate next? · 1 hour ago

    No residency for doctors until X amount of free clinic work is done? The possibilities are endless.

  9. Douglas
    Matthew Lawrence: 

    Lawyers are entrusted with a special privilege and along with that privilege, I believe, comes the duty to serve pro bono publico. · 26 minutes ago

    Except that it’s not really public service if you’re forced to do it. It’s public servitude. I don’t know about lawyers, but in virtually every other sphere, nothing kills the spirit of service like mandates.

  10. Dramman

    Assuming I pass my Sales law final (fingers crossed), I am due to sit for the NY Bar in a couple months. I am so unbelievably thankful I am likely to get in just under the wire.

    What I find the most amusing is in a response to the implicit lack of lawyers (if there ever was one), NY decides to make it harder to become a lawyer. I take it “law and economics” is not a theme of the NY Bar.

    I also share Prof. Yoo’s views about the slant of most “pro bono” groups. In my past three years I have been all but forced to work for some of these groups. They all promise of “experience”, which I turn down, partly, because the root of the cause is something I cannot hold my nose and perform under (now if they were paying….). The current economy has made it even worse, with even the Dean of my school speculating openly a new grad may have to do unpaid work for these “social change” vehicles a while.

  11. Dramman

    That all said, I am not a pessimistic about the proposal on general terms. Law Schools, universally, seem famed for their inability to teach lawyer-ing skills. Perhaps this might bridge the gap. I am rather interested in seeing the details before passing judgement. Might any source of pro bono work do (i.e. any unpaid internships)?

    There is the other problem a appreciable percent of NY Bar takers are from out of state, or even out of the US. Would they accept pro bono outside NY? Or will the examinee need to take off two weeks and do the pro bono requirement? When will this be done? A summer in the middle of school? (1L? 2l?) Some time within graduation, May, bar exam review, June, and exam, July? Who is going to pay for this, especially considering the direction implies living in a city with high temp-rents? What about admitted lawyers moving to NY?

    Finally, Prof. Epstien’s point about crossing the line is well taken. What is stopping 100 hours? 200 hours? If the requirement is specific (e.g. home foreclosures), the NY bench could unleash thousands of pawns on whatever cause fancies them.

  12. Foxfier

    Logical progression.  I had to do many hours of volinteer work to graduate in Washington State. (high school)

    I was told I’d have to do a lot of hours to get into “a good college.”

    Now, those who have gotten through high school, through a good college, are now being told to volinteer.’

    Next, it will be a fairness thing that everyone ”volunteer.”  Maybe one weekend a month, two weeks a year…. (Reserves joke, sorry.)

  13. Pilli

    You guys are late to the party.  Many Florida high schools have been requiring  20 or more hours of “community” “volunteer” work in order for a student to graduate from high school for many years now.  The school gets to decide what is “community” and what isn’t.

  14. Foxfier

    All military vets in the last decade or two should know all about “mandatory fun days.”

    Usually scheduled after a physical readiness test, it means “everyone will be there, preferably with their families, smiling and being inoffensive for the photo shoots.”

    Douglas

    Matthew Lawrence: 

    Lawyers are entrusted with a special privilege and along with that privilege, I believe, comes the duty to serve pro bono publico. · 26 minutes ago

    Except that it’s not really public serviceif you’re forced to do it. It’s public servitude. I don’t know about lawyers, but in virtually every other sphere, nothing kills the spirit of service like mandates. · 2 hours ago

  15. BlueAnt
    Pilli: You guys are late to the party.  Many Florida high schools have been requiring  20 or more hours of “community” “volunteer” work in order for a student to graduate from high school for many years now.  The school gets to decide what is “community” and what isn’t.

    I got hit with that requirement.  The irony is, once I found out about it in senior year, I did not have a problem with the actual hours; I had been volunteering through a youth group at my church since 9th grade (the state only accepted volunteer work done in 9th-12th grades), so I had about 200-250 hours racked up.

    But I couldn’t prove I was such a benefit to the community, because for 3 years I failed to document this work on the stupid little forms you were supposed to fill out.  I wound up documenting the last few hours I worked in senior year, plus an official letter from our youth group leader which the state accepted as a one-off.  They let me graduate with the minimum number of hours “officially” on the record.

  16. Larry3435

    Every time I see a list of “pro bono opportunities” circulated by my local bar association, I want to volunteer my time — to work for the other side. 

    Next, I suppose, the IRS will decide what charitable contributions should be tax deductible on the basis of whether the charity serves leftist interests (ACORN, good; churches, bad!). 

    However, the comparison with doctors is an unpersuasive way to make the point.  Residency is simply another way to say “three years of treating poor patients who can’t afford real doctors.”  But at least you don’t have to prove the patient voted Democrat in order for the treatment to count.  Except at Cook County General, of course.  But at Cook County General, all the patients are Democrats by definition.  Same as at the Chicago morgues. 

  17. Retail Lawyer

    I must disagree with Professors Epstein and Yoo regarding the utility of a state bar regulating lawyers.  The purpose of the requirements of admission is to insure a minimum level of competence is available to the public.  Apple and Safeway and the professors could locate competent representation on their own, but the general public really could not be expected to separate the good from the bad.  Then there are the ethical issues that the state bars discipline. . .   I don’t know how often either professor goes into a state court and observes  law & motion arguments, but I often think that the state is not doing an adequate job protecting the public from semi-competent attorneys.

    I agree with Professor Epstein and again disagree with Professor Yoo regarding the utility of New York’s new pro bono requirement.  It does nothing to protect the public, it merely purports to transfer something to the public from select individuals.  And what sort of pro bono work can an almost admitted attorney do, anyway?   Maybe this is why I’m “Retail Lawyer”.  My client isn’t the President of the U.S.A., he’s just some guy who needs a lawyer.

  18. Aaron Miller

    Is there any profession in which experience is not helpful and competence is not expected?

    Architects and construction managers, accountants and investment managers, teachers and coaches, electricians, truck drivers, etc, etc. There are countless professions in which incompetence can ruin someone’s life. So what? As long as professionals are held accountable for their mistakes and misdeeds.

    Rookies should start with simple, low-paying jobs… but they should be paid. The rise in mandatory community service in schools and professions is part of the same corruption that has led to nanny state regulation and licensing. Society can function without guilds and constant bureaucratic oversight.

  19. Robert E. Lee
    Aaron Miller:  The rise in mandatory community service in schools and professions is part of the same corruption that has led to nanny state regulation and licensing. Society can function without guilds and constant bureaucratic oversight. · 29 minutes ago

    I’m unsure what you mean by this.  Do you think mandatory community service is wrong?  Or that the way it’s being carried out is wrong?

    I’m a fan of mandatory community service as a means of making one aware that he is part of something bigger than himself, like saying the pledge of allegiance.  But I agree with the professors that the way the NY bar seems to be going about it is ill-considered.

  20. Howellis
    Retail Lawyer: The purpose of the requirements of admission is to insure a minimum level of competence is available to the public.  

    That must be why no one ever complains about incompetent or dishonest or lazy lawyers.  

    But seriously, graduating from an accredited law school and passing the bar exam, by themselves, do not guarantee competence or honesty.  If you want a good lawyer, ask for a referral from someone you trust.  

    The idea of mandatory service seems to have caught fire, with high schools, colleges, and now professions requiring it.  I predict that after a few years the general public will come to realize that “mandatory volunteering” tends to be unproductive, that gaming the system will be the prevailing approach to satisfying such requirements, which will then die out.