|The Report: Learning To Serve|
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Learning To Serve
In short, at the nation's law schools, lots is happening and little is happening.
We know that this is so because, in 1997, the Association of American Law Schools created a Commission on Pro Bono and Public Service Opportunities, and the Association, on behalf of the Commission, conducted a national survey of schools about their pro bono programs. One hundred twenty-three law school deans and 110 law school administrators answered questions about school programs and policies and gave us their opinions on a variety of issues. In addition, the deans were requested to ask an appropriate staff person to complete a form for each separate pro bono project in operation at the school. Four hundred twenty six program forms were returned. These forms have given us a treasury of information about an enormously diverse range of projects. To add depth and perspective, the Commission also held three day-long focus groups-in Washington, San Francisco and Chicago-attended by staff administrators of pro bono programs as well as law school deans, law students and clinical professors. The Commission held an additional meeting in Washington with representatives of eight national organizations involved in working with law school or practicing lawyers' pro bono projects. We have learned a great deal. The survey and all of the focus groups and meetings of the Commission were made possible by a generous grant from the Open Society Institute.
The Commission's Findings
and Proposed Actions
In this Report, we will dispense some specific advice, but the Commission's most important achievement will, we hope, be actions rather than words. We want to offer tangible assistance to schools. The assistance will principally take two forms. First, the Commission members have taken the necessary steps to create a new section on public service programs within the AALS as a forum for exchanging information and ideas. Our focus group meetings demonstrated some of the important potential uses of this new forum. Many of the project staff persons who were there learned new ideas from each other even as they were bringing ideas to the Commission.
Second, and of equal or greater significance, the Commission, with the encouragement of the AALS, has applied for and received a second large grant from the Open Society Institute, which permitted the addition of two new persons to the AALS staff for one year (and possibly for two years). The first task of the new staff members has been to launch the new section. The new staff is available to work with individual law schools that are creating or expanding pro bono programs. They plan and expect to develop printed materials and a matching website of information about model programs and policies. They are working with other groups, such as Public Service Law Network Worldwide (formerly Pro Bono Students America), the National Association for Public Interest Law and the ABA Standing Committee on Pro Bono and Public Service, that are also involved in promoting pro bono programs.
The Commission's overall goal is that, within a few years, with the help of the new section and the new staff, law schools will find ways to increase dramatically the numbers of law students and law faculty involved in pro bono work.
Law School Pro Bono Programs:
The Ethical Context
Our survey of pro bono programs reveals that the deans of American law schools share this belief about the social commitment of the good lawyer. They also believe that law schools have an important role in shaping the professional values of their students and in fostering a sense of responsibility for public service. On the survey, 95 percent of deans agreed with the proposition that "it is an important goal of law schools to instill in students a sense of obligation to perform pro bono work during their later careers." Nearly 60 percent agreed with this proposition "strongly." Deans rarely agree so nearly unanimously about any aspect of legal education. Our Commission agrees with the deans. We also agree with the American Bar Association, which, in 1996, amended its accreditation standards to provide that law schools should "encourage students to participate in pro bono activities and provide opportunities for them to do so."
The issue addressed by this Report is thus not whether law schools should seek to promote a sense of social obligation-but how schools should seek to do so and how the AALS can be of assistance.
We recognize, of course, that providing students opportunities to engage in pro bono work while they are in law school is not, by any means, the only way that schools might instill such a sense of public obligation. Students can also be moved to perform pro bono work later in their careers by faculty members who perform volunteer service and serve as models; by the urgings of a charismatic dean; by courses that reveal the unmet legal needs of lower income people; and by clinical programs that provide students with hands-on opportunities to serve. All of these are important. Indeed, a program of pro bono volunteer opportunities for students is unlikely to shape students' later behavior unless it is a part of a larger culture of service and commitment within the law school that includes all or most of these other components. (Later in this report, we make recommendations regarding pro bono work by faculty members and discuss the relationship between clinical and pro bono programs.) On the other hand, we believe that these other means of promoting a message of obligation are likely to be much more effective when coupled with providing students the opportunity to experience the satisfaction of service.
The Benefits of Pro Bono Programs
for Law Students
Projects in which students do law-related work can help students develop a sense that a responsible lawyer's professional responsibilities include giving back to the community. Pro bono work can also open students' eyes to the substantive needs of poor people, to the bureaucracies with which they have to deal, and to the courts that hear the matters in which they are involved. They can, if well planned, help the students learn the importance of high standards of performance. They can also affect the way that students perceive the substantive issues that they discuss in their courses. In addition, by establishing individual relationships with poor people and using the law to help them to resolve their problems, law students can begin to learn through experience the reach and the limits of law and the lawyer's role. Many students come to law school to help people. They often find that the pro bono experiences confirm their motivations and reconnect them to their idealism. Some will be inspired to consider a career in public service or public interest work.
A quite different additional educational goal is provided by pro bono projects that are run by the students themselves. The student directors of these programs learn through experience some important lawyer competencies related to developing a law practice and managing a law office.
Besides these evident educational benefits, there is another "plus," somewhat more subtle, but also more directly related to professional responsibility. For lawyers and law students, perhaps more than almost any other group, time is the coin of the realm, and it always seems that there is not enough. Once a student graduates from law school and is employed in the practice of the law, no matter where, the demands on her time are enormous. Without the actual experience of integrating volunteer pro bono work with the rest of her life, an experience which can be learned and reinforced during law school, the pressures to do nothing but her job may be overwhelming. Pro bono and public service opportunities in law school provide law students with a base from which they can learn the ability to juggle and make time for public service contributions as well as to do the work-whether studying law or practicing it-which is their primary occupation.
Students also derive more immediate and instrumental values from pro bono programs. They use them to meet local lawyers who can be helpful to them in finding later employment. They use them to add to a resume by demonstrating some experience in working as a lawyer. These goals may seem slightly distasteful to those who hope that pro bono work will deliver a message to students about putting the needs of others before their own, but motives for service are complex for all of us and we should support and embrace the students in their efforts to begin to build their own careers.
The Benefits of Pro Bono Programs
for the Law Schools Themselves
Sixty-nine percent of deans also believed that "the public service projects at [their] school have provided the school with valuable good will among our alumni." Alumni and alumnae are often members of the local community. They feel better about a school when it serves the community that they also serve. Some schools reinforce their connection with alumnae by pairing them with students in programs run through the law school. Such programs provide tangible benefits to the alumna in the assistance which she receives from student volunteers, a sense of professional satisfaction in the ability to mentor those who will follow her as graduates of her alma mater and as practitioners, and appreciation that the law school has made this happen through its commitment to such a program. The positive effects on students include additional mentoring, networking, and potential job assistance.
At the focus groups we held, many of the administrators who were present ran large pro bono programs, both mandatory and voluntary. They reported that, at their schools, the dean and admissions staff used the pro bono programs as a central part of selling the school to applicants. They believed that many applicants to law school have high ideals and that an extensive pro bono program is a credible way for a school to demonstrate its commitment to public service and to the needs of lower income people.
Our central recommendation is that law schools make available to all law students at least once during their law school careers a well-supervised law-related pro bono opportunity and either require the students' participation or find ways to attract the great majority of students to volunteer. What "Pro Bono" Projects Should Schools Foster?
All work that students do for the benefit of others has important values. At many schools responding to our survey, most student volunteer projects involved no work as a lawyer-students help build a house for Habitat for Humanity or organize a run to raise money for Breast Cancer research. These projects are valuable for both students and the people served. They are the communitarian activities of all good citizens. We believe that law schools should support student groups that develop such projects. But we also believe that whatever law schools do to foster such general good works, they should also seek to involve each student in a project that makes use of the special skills and knowledge that only lawyers hold. It is this distinctive lesson about professional service that students need to carry with them into practice.
At the same time, schools need not adopt a narrow view of what counts as a project that draws on lawyers' special skills and knowledge. Most students probably find most satisfying the opportunity to provide one-on-one legal services to a lower-income person. The sorts of matters that students are competent to handle in a pro bono project of limited duration almost never involve complex legal issues and are generally routinized in their processing. Still, these matters provide students with the satisfaction of helping a person in distress with a legal problem that they cannot deal with adequately on their own. At the same time, some of the most satisfying law-related projects currently in place do not involve individual legal representation at all. At many schools, students teach courses on law to high school students or work with high school students to put on a mock trial. At a few schools, students work on a pro bono basis on legislative proposals. Such projects draw on the students' developing knowledge and skills as an attorney and merit consideration.
Developing a School Plan
We believe that, after making such a review, many deans would be pleased by their school's best projects, but chagrined by the total numbers of students who become involved. Almost two-thirds of the deans who responded to our survey said that they were satisfied with "the amount of public service and pro bono work done by their students today." That was true, sad to say, even at many schools where administrators reported to us fewer than 50 students participating in pro bono projects each year. At some of those schools it may be that most other students take at least one clinical course, but at most schools we do not believe that this is the case. Many pro bono projects, we heard, attract a large number of students one year, and then, after a change in student directors, attract few the next. At schools where pro bono work is entirely voluntary, we believe that most deans would discover that fewer than 20 percent of their students perform any law-related pro bono work during their law school years.
After surveying their current pro bono activities, schools need to decide on the goals they wish to serve for their students and themselves and review the possibilities for projects available in the nearby area. As we learned from our focus groups, the kinds of programs that will seem appropriate will differ greatly among schools, depending particularly on the size of the city in which the school is located, the socio-economic conditions in the area, the financial resources available for programs, and the interests of students and faculty. We urge schools to consult with other schools that seem to be in like situations to learn about their pro bono programs. In an Appendix at the end of this report, we give examples of many quite different sorts of projects schools might want to consider, together with the names of schools where such programs are in operation and persons there to contact. In the following pages, we address some of the general issues that schools will want to consider in establishing pro bono programs:
1. Should Participation be Required or Voluntary?
On the other hand, not everyone favors a pro bono requirement. On our survey of schools, forty percent of deans agreed with the proposition that "it is inappropriate for schools to impose a mandatory requirement on students to participate in public service projects." We understand the deans' discomfort. "Compulsory volunteering" is an oxymoron. Will students learn the values of choosing to contribute their time when they are forced to contribute their time?
Despite these concerns, the Commission believes that schools would be wise to consider seriously adopting a required public service program. Law schools can justify adopting a required program of service for their students on a ground that is unavailable for justifying required pro bono service by members of the bar: law schools are, after all, responsible for the education of their students. At most schools, the entire first year of law school consists of required courses. Many schools continue requirements in the second and third year. Most schools require a course in professional responsibility. In an earlier section, we have discussed the educational values for students of participating in a well-run, law-related pro bono project. (See "The Benefits of Pro Bono Programs for Law Students," supra.) We believe that those values amply justify a requirement to do so.
Beyond the sound educational justification for establishing a required program, two additional pragmatic reasons exist for doing so. The first is that even among schools with well-staffed voluntary programs, only a few manage to attract more than half their students to participate in a law-related pro bono undertaking during law school. Our survey cannot tell us who the students are who never volunteer, but we suspect that the non-participants include a high proportion of those with the most to gain by taking part. Only a required program seems likely to reach these students.
A second strategic reason for seriously considering a required program is that, somewhat paradoxically, the school's adoption and maintenance of such a program is the strongest possible way for the school to convey the seriousness with which the school takes the message about the importance of volunteer service. A required program becomes a part of the fabric of the school. If supported by the dean and the faculty, it is a way of incorporating volunteer work into the students' core conception of the school and, we suspect, their conception of the profession.
2. The Location and Structure of Projects.
Under any of these approaches, students then work outside the law school-with local public defenders or legal services programs or test-case groups or with individual members of the bar in private practice who are doing pro bono work. When opportunities are provided in this way, the school leaves the supervision of the students' work almost entirely to the outside attorneys with whom the students work. From the law school's point of view, the attraction of these outside programs is that they give students the opportunity to get out of the law school and into the community to observe agencies and private attorneys in their day-to-day settings, they offer students a wide range of settings to choose from, they often help students establish a network of lawyers, and they typically entail few dollar costs to the law school beyond the staff person who helps match the students with opportunities.
The attraction of this approach is that it typically offers students an opportunity to participate in the management of the project, it often includes tailored training programs for the students, and the work is typically physically convenient for the students. For these reasons, on our survey, these programs were typically described as highly popular with students. A challenge of such programs is that, unless faculty member or local lawyers volunteer their time, they may involve an expenditure of law school funds (or require a continuing search for outside funds) to pay for student supervision. Moreover, each single specialized program typically attracts (or can accommodate) in any given year only a fairly limited number of students. Few of the 178 programs of this sort reported to us had more than 40 student participants in a school year. Nearly 60 percent had fewer than 20. Of course, by comparison to the "outside" programs, where students typically work individually at a lawyer's office or legal service office, the ten or twenty students in an "inside" program often form close collegial relationships and have a healthy sense of ownership in their project.
The two approaches are not mutually exclusive. Many schools employ both. One big-city private school, for example, requires all students to perform 40 hours of pro bono work in their second or third year. To assure sufficient opportunities, the school runs several in-house projects (including, for example, one in which students represent parents and children in hearings on special education placements and another in which students work on domestic violence cases), but also draws upon the database of Pro Bono Students America and its own contacts to maintain links with a wide range of placements available for students outside the law school (in prosecutors' and defenders' offices, in legal services offices, and in law reform public interest groups).
A middle approach: midternships
A more simple, and equally effective, blending can occur when a project operated by students within a law school forms a partnership with an outside legal services project, which provides supervision for students. Some highly effective domestic violence projects work in this manner, with the students interviewing at-risk women and children, preparing protective order petitions and helping the legal services attorneys represent the clients in court.
3. Relationships between Clinical Courses and Pro Bono Projects.
Both clinics and pro bono programs serve important educational values. They each provide students an opportunity to learn about the legal needs of people who are poor. They each provide an opportunity to learn about the satisfactions of serving a client. But the principal goal of most clinics is to teach students lawyering skills and sensitivity to ethical issues through structured practice experiences and opportunities to think about and analyze those experiences. By contrast, the most important single function of pro bono projects is to open students' eyes to the ethical responsibility of lawyers to contribute their services. Most clinical programs are intense and extended. Most pro bono experiences are intense but brief. A pro bono project typically involves a student in a routine legal matter that provides a first taste of handling a legal problem for another person. A clinical case is often quite complex.
The survey information provided to the Commission nonetheless includes a number of examples of exciting collaborative ventures that recognize and build on the strengths and differences between the two sets of programs. We strongly encourage clinical faculty and pro bono project administrators to work closely together. We believe cooperation will make each set of programs more effective.
For example, clinical teachers and pro bono project administrators can construct informal sequences. The introductory experiences of a student in a pro bono project may increase the student's interest in taking a clinical course. Conversely, a student who has taken a clinical course in which she has represented several individual clients, might be motivated and better qualified to participate or direct a major student-run pro bono project.
When the goals and methods of clinics and pro bono projects merge, clinical teachers and pro bono project staff can create functional partnerships that allow some students to work for credit and others to do pro bono work of a less demanding sort. In a few clinics, for example, students not enrolled for credit volunteer to do investigative work on the credit student's cases.
There are reciprocal benefits of collaboration for clinics, in addition to increased student interest in the clinical courses. Student-directed pro bono projects may reveal new unmet legal needs and thus potential practice areas for clinics. In addition, students involved in pro bono projects may be able to provide types and forms of legal services that clinics are unwilling to provide either because the services are not within their established practice areas or because the repetitive nature of the services is not adequate to support the diversified educational goals of a multi-credit clinical course.
We do have a warning, however, about collaboration of clinics and pro bono programs. Collaboration should not be permitted to lead to the overburdening of clinical faculty members. Because of their skills and their contacts with local agencies and courts, clinicians are an inviting group to ask to oversee pro bono projects. Some schools have done so without providing the clinical faculty member an offsetting reduction of her clinical teaching responsibilities. This seems to us a serious mistake. Clinical teachers typically work long hours as it is. Imposing supervision of a pro bono project as an additional responsibility is likely to impair a teacher's effectiveness in her clinical teaching.
4. The importance of adequate staffing
Among the important tasks for a staff person are the following: continuously identifying pro bono opportunities in the community; promoting pro bono opportunities within the law school; matching interested students with appropriate placements; working to entice faculty members to become involved in pro bono projects; and weeding out placements that haven't worked well. Many schools, particularly smaller ones, find that these tasks can be performed by a staff person on a half-time basis (often someone within student services or the placement office). Some of this work can be done by an energetic student paid with Work Study moneys, but a staff person is needed to provide continuity and supervision. To succeed fully, we urge schools to consider hiring a full-time person for this purpose.
5. Assuring Adequacy of Supervision: the importance of evaluation.
First, to the extent that schools place students with attorneys outside the law school, the school should seek an understanding with each attorney or agency with whom the student is placed about the supervision that is expected from them. Since agencies and outside attorneys are typically providing the supervision without compensation, the law school may find it awkward to ask for a high level of interaction, but both the supervisor and the student are likely to be grateful for having reasonably clear expectations.
Second, at the end of their time on a project, each student should be asked to complete a form describing the work done and reporting their degree of satisfaction with the project and the supervision they received. These forms should be used to provide guidance in matching future students with the same placement and can alert the school to placements that are so unsatisfactory that they should be discontinued. Pro Bono Students America has a model evaluation form they are glad to supply.
6. The importance of the enthusiasm of deans and faculty and of rewards for the efforts of student leaders.
By much the same token, we also frequently heard in our focus groups that student enthusiasm for pro bono work is greatly enhanced by appropriate forms of recognition. Even selflessness needs applause. Some schools give a certificate to any student who performs more than a stated number of pro bono hours. One school, for example, that requires 40 hours of pro bono work during the second or third year, gives a certificate to any student who performs more than 75 hours. Others make a notation on the students' transcripts that a certain number of hours of pro bono work have been completed. Some schools give a special award or awards to students who have provided noteworthy leadership. Some schools hold a special recognition reception or dinner with a guest speaker-often a graduate of the school with a distinguished record of pro bono work or public service. Whatever they do, schools should find some way to recognize pro bono work by students in a manner that matches in seriousness the awards the school gives for academic achievement or the honor that comes with law review status.
7. Finding the necessary funds.
Where can these funds be found? We have no simple answer. We believe schools need to make a decision that the learning experience for students through pro bono work is an important part of the overall academic experience of the student and deserves to be treated as a part of the school's core academic budget. At the same time, we also believe that, unlike most other parts of a law school's academic program, outside funds may well be available to meet at least part of the costs. Slightly over half of the administrators responding to our survey reported that their school "had obtained or attempted to obtain outside funding for public service activities for students while they are in law school." In their comments accompanying this question, it was clear that most of these attempts to obtain funding were successful and that a wide variety of sources for funds had been exploited. Local and state bar associations and state Interest on Lawyer Account programs have contributed support to many schools. Local and state governments have provided support for some programs, private foundations for others. Some schools have found that pro bono projects can attract direct contributions from alumni. A few have created a special fund for this purpose. We urge schools to look into all of these possibilities. One of the responsibilities of the new person who will join the AALS staff will be to work with schools to identify possible sources of funding.
Pro Bono Work By Faculty Members
The Commission did not attempt to survey deans regarding the amount of pro bono work performed by their faculties, but we did ask some questions that provide indirect indications. About sixty percent of the deans who responded to the survey said that they were satisfied with the amount of pro bono work done by their faculties today, but about a third of deans admitted that they were dissatisfied. That a third of deans are willing to register disappointment with their faculty along any dimension is noteworthy. Similarly, while half the administrators we surveyed said that "many of the faculty at my school provide good role models to the students by engaging in uncompensated public service work themselves," the remaining half of administrators disagreed or were unsure.
The Commission believes that active faculty participation in pro bono work is highly important for the sake of their students. Law teachers teach as much about professional responsibility by what they do as by what they say. If our conduct and actions are inconsistent with the principles and rules that we teach, we undermine both our credibility as teachers and the legitimacy of the ethical principles and rules themselves. If we appear to be insincere about our pro bono responsibilities, we also will encourage law students to be skeptical, indeed cynical, about the many other moral principles that distinguish our profession from a trade.
We emphasize that it is not just professional responsibility teachers, but all law teachers, who teach (or fail to teach) the responsibility for public service through their actions (or inactions). In this respect, legal ethics education truly is "pervasive," whether or not the law school has formally adopted and implemented this proposed pedagogy.
For this reason, we recommend that all law schools adopt a formal policy to encourage and support faculty members to perform pro bono work. Most schools do not have such policies today. More than half the deans who responded to our survey said that their school had no policy "with regard to requiring or encouraging faculty members to participate in public service or pro bono activities." At most of the schools that did have policies, the policy simply took the form of a highly general statement that "service" is considered along with scholarship and teaching in decisions about promotion or salaries.
We urge schools to do more. In particular, we suggest that schools adopt a policy regarding faculty participation in pro bono work with these six components:
* An annual expectation. The faculty of the school should agree to impose on itself an expectation that all members of the faculty will do some pro bono service each year.
* Universality. The policy should apply to all full-time or substantially full-time law teachers. Status, title and the source of the teacher's salary should be irrelevant. Deans and associate deans should be included. Although whether a teacher is licensed to practice law certainly will influence the nature of the pro bono work that he or she can do, the absence of a license should not exempt a faculty member from the policy.
* Beyond teaching and institutional service. What "counts" as pro bono work should be in addition to the teaching, research and writing, and institutional service that the teacher is expected to provide.
* Institutional support. The school should support the teacher's pro bono work, for example, by providing reasonable secretarial and other tangible support services, allowing the teachers to use legal research assistants to help them in their pro bono work, making reasonable uses of leaves and summer (and other) faculty research grants, and encouraging new partnerships between clinical and non-clinical teachers, external lawyers and supervisors, and others.
* Faculty autonomy. Faculty members should be entirely free to choose the sort of pro bono work they perform, consistent with their political beliefs and their capacities. At some schools, there are restrictions on school support for faculty work of a political nature, but faculty should be permitted to choose whatever sorts of work they wish, so long as they carry out the work in a manner consistent with school policies.
* Annual reporting. Each faculty member should be expected to report annually to the dean the pro bono work she has performed and the report of this work should be made available, with pride, to the faculty, staff and students.
First, the Commission members have taken the steps necessary to create a new section of the AALS on pro bono and public service opportunities. The intention is to create a forum for the faculty and administrators who are involved in pro bono work. The section will, we hope, develop its own newsletter and sponsor panel sessions and conduct business meetings at the time of the AALS Annual Meeting.
Second, with a grant from the Open Society Institute, the Association has added two new persons to its staff for a year, beginning this summer-Cynthia Adcock, Pro Bono Project Director, and Alison Keegan, Assistant to the Pro Bono Project Director. Ms. Adcock comes to AALS from Duke University School of Law where she was the Director of Pro Bono. She and Ms. Keegan are working with the new Section to help insure that it is successfully launched; developing materials on successful pro bono projects and on approaches to funding; providing direct advice to law schools that are trying to set up new or expand existing programs; and working with other organizations that are involved in promoting pro bono activities. The Association intends to seek a second year of funding under this grant.
In addition, in order to encourage schools to appraise their pro bono programs, the Commission has recommended to the AALS Executive Committee that its membership review process be altered to include inquiries about pro bono programs. Similarly, the Commission joined the American Bar Associations Standing Committee on Pro Bono and Public Service Opportunities to encourage the Consultant on Legal Education to add to their accreditation review materials questions that bear on the new ABA standards concerning pro bono opportunities for law students. The results of these efforts remain uncertain at present.
Organizations other than the AALS
Public Service Law Network Worldwide
The National Association for Law Placement
National Association for Public Interest Law
ABA Standing Committee on Pro Bono and Public Service