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.