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.
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Dec '11
Re: Mandatory Service as an Abuse of Regulatory Power
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.
Aug '11
Re: Mandatory Service as an Abuse of Regulatory Power
Rather provocative. If you accept your assertion that "law & motion arguments" are the foundation of a competent attorney, I can see how the program would be of scant utility.
It may be true that the public may not be able to evaluate the quality of a lawyer. However, I think the choice of counsel is not just based on some objective ranking. My personal experience prior to school showed effective representation is not from a test score, but the ability to understand clients, identify or drag out the details, and synthesize into goals that concur with the clients wishes. To this end, I can see the utility of the envisioned program, as it could ensure face-to-face interactions that are not possible in the average law school curriculum.
Edited on May 4, 2012 at 5:14amJul '11
Re: Mandatory Service as an Abuse of Regulatory Power
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.
May '10
Re: Mandatory Service as an Abuse of Regulatory Power
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.
Jun '10
Re: Mandatory Service as an Abuse of Regulatory Power
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.
Apr '12
Re: Mandatory Service as an Abuse of Regulatory Power
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.
May '10
Re: Mandatory Service as an Abuse of Regulatory Power
Robert E. Lee
I'm unsure what you mean by this. Do you think mandatory community service is wrong? ...
Yes. Free will is the core of human existence. Only military service should be mandatory (when needed — the draft) because we have no freedoms without it.
Robert E. Lee
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.
Absolutely, charitable service is good. But wisdom and good character cannot be forced. And charity should be a choice.
When individual employers and universities include unpaid service requirements in their contracts with employees and students, that's fine. People can go elsewhere if they don't like the terms. But the modern guilds we call "associations" like the ABA and AMA have the force of government to enforce such demands on anyone in the profession. Like government regulators, they are trying to force a better world by denying the free will of individuals.
Dec '10
Re: Mandatory Service as an Abuse of Regulatory Power
I always find it hard to disagree with Professor Epstein. On the other hand, my understanding of the term "pro bono" means without charging the client for your services. Could not an aspiring lawyer volunteer his services to landlords seeking to evict professional tenants?
The larger issue is, as Professor Epstein says; more state intrusion for ostensibly ideological purposes that do not enhance the quality of the services provided to the public.