On Monday, May 17, 2016, Justice Sonia Sotomayor spoke at the national convention of the American Law Institute. She engagingly walked around the huge conference room, answered questions, and made observations. Cameras in the courts? Well, “It is a much more complex question than I thought,” she said, while suggesting that cameras in the Senate were responsible for the Senators’ lack of collegiality.
She also volunteered that she favored mandatory pro bono—requiring lawyers to perform legal services for reduced or no fee to help people of modest means in civil cases. (The government already provides free counsel in criminal cases, as required by the Sixth Amendment.)
Sotomayor said, “I believe in forced labor,” and. “If I had my way, I would make pro bono service a requirement.” If the government required lawyers to work for no pay, she said that there is no risk that they “may not give their best effort,” because the ethics rules require them to give their best effort. She cited approvingly a New York bar rule, instituted in 2012, that requires applicants for admission to the New York State bar to perform 50 hours of pro bono services. Like many rules, this one grandfathers in those already admitted to the New York Bar, so that financially secure law partners do not have to worry about this burden.
Lawyers should perform pro bono services, just as we all should donate to charity and perform good works. Speaking from personal experience, I know that helping those who truly need legal services is immensely satisfying. It is difficult to quantify the personal pleasure one receives from helping those in need. Yet, voluntarily choosing to perform pro bono work is quite different from the state requiring “forced labor.”
Most of us believe in charity. Hence, we are surprised when the well-to-do give virtually nothing to charity. For example, when Vice President Biden and his wife, who holds a doctorate in education, periodically disclose their tax returns, the news reports how stingy they are. They have given, over the last decade an average of $369 per year! That’s 0.2% of their income. The average yearly donations from people with incomes from $200,000 per year to $500,000 per year, is $40,746. Biden’s giving is below par, and unlike golf, being below par in this area is not a good thing.
Yet, while some may criticize the vice president for emulating Ebenezer Scrooge, we would not think that the government should require Biden to donate to charity. That would be the same as imposing a tax. The government does allow a person to deduct their charitable contributions, which gives a form of subsidy to charitable giving. However, each individual, not the government, decides whether to give and whom shall receive the benefit of his or her largess.
Justice Sotomayor’s proposal to require lawyers to perform pro bono work (“forced labor” in her words) is akin to a tax. However, it is not a tax that one can avoid by donating an equivalent amount of money to charity. Indeed, it is regressive tax because it imposes greater burdens on the younger lawyer.
Notice, first, that the New York version of mandatory pro bono (the version that Justice Sotomayor cited with approval) applies only to young lawyers, as they start out in their profession. New York specifically requires that “pro bono work must be completed before you submit your Application for Admission” (emphasis added). These recent law graduates have just finished law school, often with a six-figure debt. They are searching for a job. Surprise! New York tells them that they must first work for free before they can work for pay.
What if we extend mandatory pro bono to lawyers already members of the bar? Solo lawyers would have no choice except to take time off from paying clients to work for nonpaying clients. In large firms, the partners can delegate most or all of this work to young associates, whom they pay by the year, not by the hour. The actual marginal cost of pro bono for larger law firms may be close to zero.
Granted, lawyers have a monopoly: only licensed lawyers can practice law. If that monopoly is necessary (to keep up standards), then we keep it. If it is not necessary, we should remove it rather than “tax” it by attaching restrictions it.
We can compare mandatory pro bono to food stamps. We obviously believe that poorer people should eat, so the government disperses food stamps. However, we do not require the green grocer to give away food to the indigent. Instead, we all support the government taxing us and using that money to buy food stamps for the less fortunate. The law does not require the grocer to provide free food out of her own pocket.
Yet, when it comes to lawyers, it is quite respectable for distinguished jurists like Justice Sotomayor, to “believe in forced labor.” New York Attorney General Eric Schneiderman called the New York mandatory pro bono rule, “brilliant and innovative.” Whether or not it is brilliant, it is hardly innovative. Various states and the American Bar Association have considered such proposals for years, and rejected them. The American Bar Association, when its members debated the issue, rejected forced pro bono, while approving ABA Model Rule 6.1, which advises lawyers that they “should aspire to render at least 50 hours of pro bono publico legal services per year.”
Lawyers already perform a lot of pro bono work, and they do it voluntarily. Mandatory pro bono, like mandatory charitable giving, is an oxymoron. Some lawyers donate money to pro bono organizations to hire lawyers who become experts in their area and really want to do it. If a mergers and acquisitions tax specialist from Illinois wants to move her practice to New York, requiring her to spend 50 hours to learn about landlord and tenant law wastes her talent.
Some lawyers are active in county bar associations (raising funds to support volunteer legal services) or the bar’s Judicial Evaluation Committee (which evaluates the judicial candidates who will preside over cases involving unrepresented persons). Some lawyers coach mock trial teams to help young people learn about the legal system. Others do free legal work for the local opera. Still others help the local church or animal shelters, work in hospices, are big brothers to troubled teens, or give to United Way.
The New York Rule does not count any of these activities, although they may be the most productive use of a lawyer’s charitable time. The one thing that most lawyers uniformly lack is time. What lawyers do with this limited resource should be their own affair. The New York Rule is less about helping poor people and more about liberty: how we choose to spend our time.
Engaging in pro bono work can be very rewarding. The smile I see the smile on a client’s face after I have helped them is priceless. That smile means so much less when the government compels the work.