By Deborah L. Rhode
Nowhere is the gap between professional ideals and professional practice more apparent than on issues of pro bono responsibility. Bar leaders, ethical codes, and judicial commissions have long proclaimed that all lawyers have obligations to assist individuals who cannot afford counsel. And lawyers who have assumed those obligations have made enormous contributions to the public interest. Yet the proportion of lawyers who contribute has remained dispiritingly small. Recent estimates suggest that most attorneys do not perform significant pro bono work, and that only between ten and twenty percent of those who do are assisting low-income clients. The average for the profession as a whole is less than half an hour per week. Few lawyers come close to satisfying the American Bar Association?s Model Rules, which provide that ?a lawyer should aspire to render at least 50 hours of pro bono public legal services per year,? primarily to ?persons of limited means or to organizations assisting such persons.?
A similar gap persists between law schools? formal policies and institutional practices. In 1996, the American Bar Association amended its accreditation standards to call on schools to ?encourage students to participate in pro bono activities and to provide opportunities for them to do so.? The revised ABA standards also encourage schools to address the obligations of faculty to the public, including participation in pro bono activities. Although a growing number of schools have made efforts to increase pro bono involvement, substantial challenges remain. Only about 10 per cent of schools require any service by students and only a handful impose specific requirements on faculty. At some of these schools, the amounts demanded are quite minimal: less than twenty hours by the time of graduation. Over 90% of institutions offer voluntary programs, but their scope and quality varies considerably. About a third of schools have no law-related pro bono projects or projects involving less than fifty participants per year.
What legal education could or should do to expand such public service commitments is subject to increasing debate. To encourage a more informed analysis of these issues, I have appointed an AALS Commission on Public Service and Pro Bono Opportunities in Law Schools, chaired by David Chambers of Michigan Law School. With financial support from the Open Society Foundation, the Commission has collected extensive questionnaire and interview data from law schools, and is in the process of preparing a report and recommendations. A preliminary summary should be available by the January 1999 annual meeting.
What follows here are certain key points that emerge from my own analysis of Commission research, as well as an extensive literature review concerning pro bono activity.1 My organizing premise is that both the public and the profession have much to gain from expanding pro bono involvement among lawyers and law students. Many of the nation?s landmark public interest cases have grown out of the bar?s voluntary contributions. And particularly over the last decade, the legal profession has provided less visible but no less critical assistance to the poor.
For lawyers and law students, such work is similarly important in giving purpose and meaning to their professional lives. A central mission of legal education should be to create cultures of commitment to pro bono involvement, an involvement that should persist throughout practitioners? legal careers. The American bar is, of course, divided about whether such involvement should be mandatory. But as the discussion below indicates, there are ample educational reasons to support pro bono programs in law school whatever one?s view about required service in practice.
I. The Rationale for Pro Bono Service
The primary rationale for pro bono contributions rests on two premises: first, that access to legal services is a fundamental need, and second, that lawyers have a responsibility to help make those services available. As the Supreme Court has recognized in other contexts, the right to sue and defend ?is the right conservative of all other rights.? Moreover, in a democratic social order, equality before the law is central to the rule of law and to the legitimacy of the state.
In most circumstances, access to justice is meaningless without access to legal assistance. Our legal processes are designed by and for lawyers, and lay participants who attempt to navigate without counsel are generally at a disadvantage. Those disadvantages are particularly great among the poor, who lack lawyers for well over three quarters of their legal needs and who also typically lack the education and experience necessary for effective self-representation. Inequalities in legal representation compound other social inequalities and undermine our commitments to procedural fairness and social justice.
While most lawyers acknowledge that access to legal assistance is a fundamental interest, they are divided over whether the profession has any special responsibility to provide that assistance, and if so, whether the responsibility should be mandatory. According to some attorneys, if equal justice under law is a societal value, society as a whole should bear its cost. The poor have fundamental needs for food and medical care, but we do not require grocers or physicians to donate their help in meeting those needs. Why should lawyers? responsibilities be greater?
One answer is that the legal profession has a monopoly on the provision of esential services. The American bar has guarded those privileges and its success in restricting lay competition has helped to price services out of the reach of many consumers. Under these circumstances, it is not unreasonable to expect lawyers to make some pro bono contributions in return for their protected status. Nor would it be inappropriate to expect comparable contributions from other professionals who have similar monopolies over provision of critical services.
A second objection to pro bono responsibilities, particularly those that are mandatory, is that many attorneys will be unable or unwilling to provide cost-effective services. Having corporate attorneys dabble in poverty law is an inefficient way of assisting the poor. Yet we lack adequate experience and research concerning various types of pro bono programs to provide an accurate assessment of that objection. Many bar and law school pro bono programs have developed training and placement strategies designed to minimize quality problems. In any event, the question is always, ?Compared to what?? For most indigent clients, some access to legal assistance is preferable to none, which is their current alternative.
There are, moreover, other benefits from pro bono programs that critics fail to acknowledge, and those benefits extend to law students as well as lawyers. For example, these programs provide many participants with their only direct knowledge of how the system functions, or fails to function, for the have nots. To give broad segments of the bar some experience with what passes for justice among the poor may lay foundations for constructive social change.
Pro bono work also offers lawyers and law students a range of practical benefits, such as training, trial experience, and professional contacts. Involvement in community groups, charitable organizations, and public interest activities is a way for individuals to expand their perspectives, enhance their reputations, explore alternative work options, and build problem-solving skills. Pro bono work also benefits participants collectively as well as individually. According to public opinion polls, providing free legal services is one of the best ways to improve the public standing of lawyers. And according to AALS survey data from law school deans, pro bono activity generates valuable good will with alumni and with the broader community.
There is also one final justification for law school pro bono programs beyond the educational and practical benefits noted above. That justification involves the effect of public service by students on public service by practitioners. As former Tulane dean John Kramer has noted, the hope is that pro bono experience in law school will inspire long-term commitments that will ?trickle up? to the profession generally. That hope is widely shared. Ninety-five percent of deans responding to the AALS survey agreed that it is an important goal of law schools to instill in students a sense of obligation to perform pro bono service.
Although we lack systematic studies about the effectiveness of law school programs in accomplishing that goal, the limited available data points in positive directions. Surveys at several schools with pro bono requirements find that most students report that public service experience has increased their willingness to contribute pro bono services after graduation. Other research on American volunteer activity similarly suggests that youthful involvement in public service increases the likelihood of adult participation.
Given this range of benefits, it is hard to find anyone who opposes law school pro bono programs, at least in principle. But in practice, there is considerably less consensus about the form that these programs should take and the priority that they should assume in a world of scarce institutional resources.
II. The Structure of Law School Pro Bono Programs
Law schools offer a broad variety of pro bono activities. They range from highly structured mandatory service requirements of up to 70 hours in law-related work to occasional contributions to soup kitchens, food drives, and similar charitable programs. As AALS data makes clear, this public service activity serves multiple goals that have different educational and resource implications. To identify an appropriate pro bono strategy, schools need to determine which goals have priority and how they fit with other institutional capacities and constraints.
For most law schools, the primary objectives of pro bono programs are to encourage future public service and to provide an effective eductional experience for students. The difficulties in designing programs arise from the absence of consensus on how to achieve the first of these objectives, and on the conflicts involved in trying to achieve both.
According to some educators, if the principal goal of law school pro bono programs is to maximize future contributions by lawyers, then we should maximize contributions by students through required service. Such requirements send the message that pro bono work is a professional obligation, and often convert individuals who would not voluntarily participate. Yet we lack sufficient research to determine whether mandatory programs in fact yield greater long term pro bono contributions than well-supported optional alternatives. Some law school administrators also are concerned that required participation fails to insure quality services by unmotivated students, and undermines the voluntary ethic that is necessary to sustain commitment after graduation. Further difficulties arise in communities where current public interest legal opportunities cannot adequately accommodate all graduating students? skills, schedules, and time constraints.
Mandatory pro bono programs for students also raise awkward issues for professors, who generally resist required service for themselves. Of course, as they argue, these programs serve educational values apart from reinforcing a service ethic and such values provide some basis for including only students. But if law schools? primary goal is to create a culture of commitment to public service, then exempting faculty role models is counterproductive. As research on giving behavior makes clear, individuals learn more by example than exhortation. Unless and until faculty are willing to include themselves in any mandatory program, a voluntary alternative has certain obvious advantages.
But it has obvious limitations as well. At most schools, voluntary programs attract relatively small numbers of participants, modest institutional resources, and few efforts at quality control. Unless and until more institutions make support for volunteer work a priority, a culture of commitment will be impossible to sustain.
In short, the single most important insight from law school pro bono efforts is that no single model is clearly preferable. Different approaches create different tradeoffs, which vary at different institutions. Commission research does, however, suggest some strategies that are likely to prove beneficial, no matter what kind of program is in place.
III. Strategies for Change
Effective pro bono programs require three primary strategies. Schools need to provide adequate resources, recognition, and rewards for public service. The appropriate level of resources will, of course, vary, depending on the forms and amount of service that a school aims to promote, and on its own institutional constraints and commitments. Ideally, however, every institution should have a central pro bono administrator or office to coordinate efforts.
These administrators should work with other law school constituencies to insure adequate recognition of pro bono contributions. To that end, schools can note students? public service on transcripts, diplomas, or honor rolls. Special awards and ceremonial occasions can honor outstanding pro bono contributions by students, faculty, and alumni. These contributions also can be showcased in school publications such as brochures, alumni magazines, student newspapers, deans? annual reports, and first-year orientation materials. Faculty and distinguished practitioners can discuss their cases both in informal settings and at major public events. Student pledge drives can ask individuals to commit themselves to specified levels of pro bono work.
Law schools should provide similar encouragement for faculty public service by developing appropriate policies and incentive structures. Professors should report on their annual pro bono activities, and should receive adequate institutional credit for their involvement. Curricular development funds could supply further incentives by underwriting new course preparation that includes public service placements.
Law school pro bono programs also should reach out to other community networks. Partnerships with bar associations and community groups can help identify appropriate placements, and provide representation on matters that legal aid programs are unable to handle. Much more could and should be done through collaboration with public interest organizations like Pro Bono Students America and the National Association for Public Interest Law, which support opportunities for student public interest work. Such organizations could collect information on current programs, and make comparative data available to law school applicants.
For its part, the Association of American Law Schools should do more to promote pro bono activities. By creating a section on public service, the AALS could encourage sharing of information through newsletters, workshops, and annual meetings. The Association could also adopt a membership requirement that would call on schools to include specific information on pro bono efforts as part of the membership review process. Creation of a clearinghouse and team of consultants could assist law schools in developing and evaluating public service initiatives. Such a clearinghouse could similarly aid individual law professors in finding pro bono opportunities related to their interests and expertise.
In addition, an AALS Statement of Good Practices on Pro Bono and Public Service could highlight promising strategies. For example, one such practice might be for schools to provide law-related pro bono placements for every student who desires one. Another appropriate practice could be to require employers who use law school placement facilities to provide detailed information on their pro bono programs.
Finally, and most important, pro bono strategies need to be part of broader efforts to encourage a sense of professional responsibility for the public interest. Issues of access to justice need to become higher curricular priorities. Support for clinics and loan forgiveness programs should similarly assume greater significance. And scholars should address more attention to strategies for sustaining public service commitments in legal practice.
Improvements in law school pro bono efforts are only a modest part of the reform agenda facing legal education. And increases in lawyers? pro bono work are an equally modest part of the answer to the nation?s unmet legal needs. Yet while we should not overstate the value of public service initiatives, neither should we overlook their potential. As CUNY Dean Kristin Glen notes, ?exposing students to pro bono and public interest opportunities reinforces their best instincts and highest aspirations.? By making those opportunities a priority, legal educators can reinforce the same aspirations in themselves.
1A more extended discussion of these issues will appear in a forthcoming article, ?Cultures of Commitment: Pro Bono for Lawyers and Law Students,? in a symposium on the Delivery of Legal Services in Fordham Law Review. (Back to Article)
* This article appeared in the November 1998 AALS Newsletter