Is Forced Pro Bono a good idea? Is it even legal?

 

So the question that instills angst in my NYU law students is whether the state can require them to donate 20 hours of pro bono work as a condition of obtaining a license. The laudable motive is to supply additional assistance to indigent people who need lawyers but cannot afford them—a condition that often exists in good times as well.

The uneasiness stems, I think, from this proposition: there is no limiting condition to the idea, such that if 20 hours is a good idea then 100 hours is a truly great idea. Any principle that does not reveal its limitations is likely to be fundamentally flawed, as this one surely is. The flaws in my view have serious constitutional dimensions.

Let’s start at the beginning and note that the state, when it licenses, exercises a form of monopoly power. There is only one state, and there is no one else in the jurisdiction to whom the fledgling lawyer (or experienced lawyer from another jurisdiction) can turn. No private party is allowed to exercise that power as he or she sees fit. In all cases there are two obligations: nondiscrimination and reasonable terms. The former is likely satisfied, but the latter is not. The key question is why the state has the power to license in the first place. The correct answer is that the system of licensing is intended to protect individuals from those actions, which if completed, would give rise to a valid claim for redress. Fraud, incompetence and dishonesty fit that bill. But in a classical liberal society redistribution is not one such end, for it knows no limits. Hence the correct view tests all licenses against those permissible ends. There is much to say about modern licensing that indicates that it is pointless or overbroad. But this extension goes beyond the pale. The state is not a part owner of my labor or of any young attorney, but it is asserting that kind of lien over labor with this particular proposal.

Does this mean that there is nothing that the state can do to help the poor? Two answers are possible. One (which is actually more attractive than is commonly supposed) is no. Redistribution is not the function of the state, period. It leads to a system of beggar thy neighbor until the productive forces are overwhelmed by the redistributive ones. Think of health care.

The other is more modest. Yes it is permissible, but it is a social obligation — not one tied to this or that profession. On this view, those who vote for the restriction have to pay their fair share. They can vote a general fund to supply legal assistance, and then pay lawyers contract wages to help poor individuals. That is surely a better alternative, and it leads, of course, to efficiency gains. As John Yoo noted to me, why have a high powered lawyer do poverty work for which he or she is manifestly incompetent. I would never trust myself in any small claims matter. The implicit mismatch of labor to task is a real practical objection to this proposal. Indeed it is endless gimmicks like this one which has led to the implosion of the labor market in the first place.

There are 13 comments.

  1. Contributor

    Try practicing law in the Poeple’s Republic of New Jersey.

    20 hours is a problem? That’s a breeze. We have mandatory pro-bono – forever. No limit on hours. The Court sends you a client and you have to represent them for free, no matter how long it takes you.

    Also, I have to pay every year into a mandatory fund to compensate victims of other lawyers who stole from their clients. Talk about unfair redistribution! The fund can then go after the offending lawyer, but when they collect they don’t give any of the money back to me.

    • #1
    • September 25, 2010 at 5:25 am
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  2. Contributor

    Many public schools require a certain amount of community service hours for graduation. The theory (according to my daughter’s high school principal) is to encourage volunteerism. Only government could come up with a concept as contradictory as “compulsory volunteerism.”

    • #2
    • September 25, 2010 at 7:19 am
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  3. Inactive
    r r

    20 hours? I need to complete at least 200 hours of practice as a student and a year internship to attain licensure in my profession (clinical psychology)… that might be a bit beyond the pale. Our hours are logged in clinics that serve similar indigent populations.

    But, what about residency programs M.D.s must complete? That is a mandatory period in which doctors are paid much less than they could potentially earn and it is a tried and true practice. Is residency technically part of medical school or is it part of post graduate licensure and can comparisons be made?

    • #3
    • September 25, 2010 at 7:26 am
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  4. Inactive

    Hmm. If the Louisiana florists can have their exclusivity upheld, I don’t see much help for the Bar. Seems to be one of those matters in which the states have authoritah, and no Constitutional provision prevents them from exercising it. I have no legal training, but my dad does, so I assume I’m really good at it.

    While I agree that the provision is odious, burdensome and counterproductive (it is, after all, a gummint requirement for free stuff, which is deceptively off-budget), is it illegal?

    • #4
    • September 25, 2010 at 7:32 am
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  5. Member

    A tax by any other name.

    My university demanded community service as well, both as a degree requirement (for all majors) and a class requirement. The latter was a technical writing course that required us to participate in 501(c)(3)s. One of those charity cases involved grant writing — asking the government for your money.

    The first organization I requested to work for was a pro-life campaign. My teacher rejected that idea (a “Catholic” university, by the way), saying he didn’t want me working on “propoganda.” He had used a Planned Parenthood letter in a lesson the week before.

    That’s another issue that comes up in mandatory service. You’re not free to choose who to serve and how. Like with any other tax, the elites know best how to spend your life.

    • #5
    • September 25, 2010 at 7:59 am
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  6. Inactive

    Richard Epstein:

    “So the question that instills angst in my NYU law students is whether the state can require them to donate 20 hours of pro bono work as a condition of obtaining a license.”

    Of course the state can. A state can require prospective lawyers to attend an accredited law school merely to take the bar, after all.

    “Any principle that does not reveal its limitations is likely to be fundamentally flawed, as this one surely is.”

    Of course the principle is flawed. The principle is that authorities want their kind of people in the field. It has zip to do with competence or credibility, posturing is the order of the day.

    “The key question is why the state has the power to license in the first place. The correct answer is that the system of licensing is intended to protect individuals from those actions, which if completed, would give rise to a valid claim for redress.”

    The key question, to my (admittedly amateur) mind is: why does the state waste its time demanding X hours of community service, and fail to pick aspects of the law to be exclusively pro bono. Divorce law comes to mind.

    • #6
    • September 25, 2010 at 8:03 am
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  7. Inactive
    r r

    Aaron Miller: The first organization I requested to work for was a pro-life campaign. My teacher rejected that idea (a “Catholic” university, by the way), saying he didn’t want me working on “propoganda.” He had used a Planned Parenthood letter in a lesson the week before.

    That is most unfortunate. I have friends who have had similar experiences at Loyola (Chicago) and Marquette (WI). That’s why my kids will never attend these “Catholyc” schools: they’re overpriced, the education is mediocre, and they work outright against the Church and mock her teachings. I recommend that others who have attended these schools immediately stop funding them as long as these types of experiences (and they are abundant) continue.

    Do you think it’s time for bishops to strip these schools of their name? … I do…. start with Notre Dame.

    Aaron Miller: You’re not free to choose who to serve and how. Like with any other tax, the elites know best how to spend your life. ·

    Good point!

    • #7
    • September 25, 2010 at 8:14 am
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  8. Member

    A monopoly on exclusivity of licensure- for any profession, be it the ABA, AMA, ANA, APA, or any other group- is the culprit. If they can 1) restrict those who practice on any basis other than pure mechanical competence, and 2) establish their own standards, effectively unencumbered by outside scrutiny, the behavior will eventually become abusive.

    There should be a pure competence exam for every licensed profession, with all standards openly available. A person should be able to practice law in any state by passing an objective exam, whether she graduated from Yale or Oak Brook correspondence college (a very good school, BTW), practice medicine whether she went to Johns Hopkins or Grenada (an antibody is an antibody, a disease is a disease, no matter where you learned about it, if you indeed actually learned).

    Nursing may be the cleanest and least subject to monopolistic behavior propping up prices, due to the NCLE (National Council on Licensure by Examination) where the school is irrelevant and the results are accepted in virtually every state.

    “Professional” monopolistic behavior by licensure may well soon be gone, due to the impending health care debacle.

    Fine by me.

    • #8
    • September 25, 2010 at 9:41 am
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  9. Member

    Gee, my heart bleeds. I’m an ER physician and I am forced to give about 1/3 of my labor for free thanks to EMTALA (Emergency Treatment and Labor Act). 1/3rd of the patients who present to the ER pay us nothing for our labor ( AND interestingly enough thats the 1/3 most likely to sue us). I think the same law should apply to any lawyer. Anyone who shows up at your office should be given legal representation, whether they pay you or not.

    • #9
    • September 25, 2010 at 11:00 am
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  10. Member
    • #10
    • September 25, 2010 at 11:02 am
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  11. Inactive

    A cursory scan across this posting, led me to believe it was about forcing Bono from U2 to shut up for once, alas it’s about lawyers working for free.

    On that idea, it may be useful to have some volunteering by trainees to the bar to engender a sense of community involvement. Then again, the compulsory nature of this service sticks in the craw of this libertarian.

    • #11
    • September 26, 2010 at 12:06 pm
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  12. Inactive

    Can one simultaneously argue against a lawyer being forced to perform pro-bono services on the one hand and in favor of a doctor being forced to accept reduced payments for his services on the other? I wonder how long it will take for the masses demanding “bread and circuses” to discover a “right” to legal services. If one has an argument against the “right” to legal services at government fiat, isn’t this essentially the same argument against collectivist health care? A government that can give you whatever you desire can take from you whatever it desires.

    • #12
    • September 29, 2010 at 10:58 am
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  13. Inactive

    Dele double post

    • #13
    • September 29, 2010 at 10:58 am
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