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The California Bar’s Self-Serving Proposals

Last week California followed New York in proposing a requirement of 50 hours of pro bono work for prospective lawyers.  Unlike New York’s existing rule, which requires lawyers to serve their time before admittance to the bar, the California proposal permits them to meet the requirement shortly afterwards as well.  California’s proposal also requires 15 “units” of “experiential learning,” within such activities as clinics or externships, that can be satisfied either during law school or separately in a private externship. This proposal is an unfortunate one–both protectionist and ideologically one-sided.

First, assuming that units translate to credits, the requirement of 15 credits of experiential learning —a significant proportion of law school coursework—will make some students’ legal education less valuable and likely make it more expensive for everyone.  Some students would benefit more from the additional course work crowded out by experiential learning. For instance, those interested in corporate and commercial law may get more from exhausting the business law curriculum than from taking available experiential learning in areas not directly relevant to their careers. Students are adults and can make such decisions for themselves.

Moreover, the experiential learning requirement will create a dilemma for law schools. Clinical education is expensive as it is necessarily taught in small classes with instructors guiding students in intensive writing and projects that reflect the experience of law. Insofar as clinics are expanded, they will add to the cost of going to law schools. Insofar as the experiential leaning component is outsourced to practitioners, there will be monitoring and quality control issues.  While California’s proposal permits experiential learning unconnected to law school, the additional time required for such outside learning will create intense pressure for law schools to make it available to all students.

Second, this regulation has ideological implications. Not all law school clinics have missions that can be characterized as ideological, but quite a few do, and essentially all of these clinics serve left-liberal causes. Thus, given the universe of clinics in law schools, the experiential learning requirement will provide more resources and free labor to the left-liberal legal agenda.

The requirement of 50 hours of pro bono time effectively levies an additional tax on becoming a lawyer, precisely at the time when law schools are having trouble attracting students. Its protectionist nature is clear, because it would apply only to those not already members of the bar. It is not being imposed on practicing lawyers, even though they would clearly be better at providing pro bono services than neophytes.

The better way to serve the public, including those now underserved, is to deregulate law schools, permitting them to become cheaper, more accessible and more useful to prospective lawyers facing very different trajectories within our variegated legal profession. California’s proposal goes in exactly the wrong direction, adding costs, imposing uniformity, and erecting barriers to entry.

Reader Discussion

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on March 16, 2015 at 18:29:03 pm

Yep! As R. Richard says on occasion, this is something out of a medieval guild.

Why not impose the requirement on existing members of the bar; they can afford it and they should be better at it.
A family members firm has an expectation that staff lawyers will contribute some number of pro bono hours in the community. while it is not a requirement, it is certainly expected.

why make it harder for the student to enter the profession? Gee, I guess competition is pretty frightful!

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gabe
on March 17, 2015 at 09:14:52 am

[…] The California Bar’s Self-Serving Proposals […]

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Image of Ted Cruz: A Probable Natural-Born Citizen of the American Republic - Freedom's Floodgates
Ted Cruz: A Probable Natural-Born Citizen of the American Republic - Freedom's Floodgates
on March 17, 2015 at 11:56:19 am

In fairness, though, isn't California one of the few U.S. jurisdictions -- the only U.S. jurisdiction? -- that has (somewhat) deregulated legal education in that it does not require graduation from an ABA-accredited law school to take its bar?

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Michael R.
on March 18, 2015 at 18:42:47 pm

Prof. McGinnis,

I offer a longer response to your post over at the Clinical Law Prof blog: http://lawprofessors.typepad.com
/clinic_prof/2015/03/teaching-pro-bono-and-reclaiming-the-virtue-of-public-citizenship-.html.

I hope you find it interesting.

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Jeff Baker
on March 20, 2015 at 13:52:22 pm

[…] BARRIERS TO ENTRY: John McGinnis: The California Bar’s Self-Serving Proposals For Mandatory Pro Bono. […]

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Image of BARRIERS TO ENTRY: John McGinnis: The California Bar’s Self-Serving Proposals For Mandatory Pro … | CRAGIN MEDIA
BARRIERS TO ENTRY: John McGinnis: The California Bar’s Self-Serving Proposals For Mandatory Pro … | CRAGIN MEDIA
on March 20, 2015 at 13:53:17 pm

"California’s proposal goes in exactly the wrong direction, adding costs, imposing uniformity, and erecting barriers to entry."

That's the whole point of doing this.

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Brian
on March 20, 2015 at 15:04:20 pm

Some conservative and libertarian-leaning groups should set up clinics to make use of the free labor.

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MarkInFlorida
on March 20, 2015 at 15:56:06 pm

It is not "pro bono" if you are required to do it. It becomes "pro necessitas". It's not for the good of society anymore but for the state requirement.

This is just another liberal fantasy that they can deem something as "free". However, in reality, they are just shifting the cost onto law students. Law students are going to get plenty of experience when they get out and become attorneys. If it is so important for society, then it should be a government program and pay the students/attorneys for their services.

I also see this as a first step to making "pro bono" mandatory for attorneys.

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Josh
on March 20, 2015 at 15:59:07 pm

I love it - hoist 'em on their own petard!!!

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gabe
on March 20, 2015 at 15:59:32 pm

Who, if anyone, is presently challenging the Constitutionality of such mandatory pro bono requirements in the courts?

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geTaylor
on March 20, 2015 at 19:35:54 pm

Isn't this involuntary servitude? Isn't that ... unconstitutional? Even in California.

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30-yearProf
on March 20, 2015 at 22:33:25 pm

I thought unpaid labor was illegal under wage and hour laws.

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Skip
on March 21, 2015 at 11:22:45 am

Unless one is *fortunate* enough to be employed in pursuit of liberal causes!

Then all is permitted, you foolish little interns!!!!

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gabe
on March 21, 2015 at 15:47:48 pm

What I find interesting in the reportage about these mandatory public service requirements is that law students, Bar applicants, and established lawyers infrequently bring court cases to challenge the "facial" and/or "as applied" constitutionality and legality of such schemes. (Is this seeming aversion to "self-advocacy" litigation a sign that these persons hold catholic or calvinist values as to the requirements of "human decency necessary to sustain the republic" see, http://lawprofessors.typepad.com/clinic_prof/2015/03/teaching-pro-bono-and-reclaiming-the-virtue-of-public-citizenship-.html ; or is that a misperception shaped by my lack of access to a computerized legal research service (e.g., Lexis or Westlaw)? Perhaps the recent FCC jurisdictional changes should include the power to set "affordable" rates for such services that are vital to systems supporting human decency?

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geTaylor
on June 17, 2015 at 00:23:09 am

[…] California, following New York, proposes 50 hours of mandatory pro bono work for prospective lawyers [John McGinnis] […]

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June 17 roundup | Internet Tax Lawyers
on June 02, 2016 at 23:39:12 pm

Get ready, it's a long one, lol. As some of you know, I lived in Fontana for a short while. Had a LOT of issues with the property management company. After a short while working, well TRYING to work with them, just got me all riled up, constantly. So, contacted the parent company who I was actually leasing from and they didn't really help at all. Was really tired of the situation and needed to vent, went on Yelp and gave 1 star and proceeded to vent. Now, I had been wiring my payments to them and they were accepting and processing them appropriately. I was behind on the payments but was making an effort to catch up. When I moved in, had 2 jobs and the 2nd job cut hours tremendously and was searching. So, I try to pay again, same way, by wire transfer so I have an electronic record. Time goes by, they don't post it. I call, they say I could get a refund and give them a little time. Time goes on again, still not accepted. Call again, oh you'll have to go to your bank and get your money back and try again. By the time I get my money, it's the end of the month and the process goes on. Happened a total of at least 3 times by then and I make another call and the guy says "oh, your the one" quickly shuts his mouth and then goes on with a different subject. 3 weeks later, nope, not served with that 3 day pay or quit letter, eviction papers. The server knocked and left, I opened the door and there's a package on the front door, the guy that left it, TOTALLY lied on his documentation, and I mean ALL of it. So, I follow a companies advice and file a demurrer to try and buy some time, didn't help. My 2nd response I sent included proof that I had attempted to make the payments, had all them included with my response. So, get to court for trial and this lawyer lady calls me, she says that she heard I was willing to pay and I said yes. So she presents me a paper telling me it's an agreement to pay that could be filed by the court, for records. She quickly showed me the numbers flipped the page and had me sign. I know, dummy shoulda known better. We go in to trial and the judge was surprised, she never said judgement but asked if I had agreed to this and I said yes. She was a little hesitant to say ok. Now, months down the road, I find out I have a judgement from Home Partners on my credit report. . My first thought was what the heck and then I realized what happened. So, I contact a lawyer, he says there is a 6 month timeframe you have to fight these but requested information. I gave him the info. While I waited for him to get back to me. I looked up the lawyer firm this lady had come from and oh my, no, oh my my. They are apparently a pretty strong firm but with a MESS of complaints. Some of the previous people that had dealt with them said they were deceitful, manipulative, they accused them of forging signatures, harassed, and used unfair debt collections activities to make these people afraid of them. There are comments online that the whole office is rude, people would try and call to work something out and almost immediately wages would be garnished or something like it. They would send letters to old addresses but found where the person was , which they apparently had his correct address already on file, but notified him at that address to go on to legal action, according to that guy anyways. The law firm has been taken to court multiple times but getting out of the law suit. Finally, my lawyer gets back to me and says this woman is tough, she's a shark, and sorry but I can't help you. Something needs to be done about this. I was conned in to signing my papers because I had proof that would have helped my case, lawyer told me I probably would have won. That kind of treatment, by three different companies, to take advantage of people like that should be illegal!!!!!!

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Sherri
on November 08, 2018 at 08:07:28 am

[…] John McGinnis frequently points out the leftist domination of legal academia (e.g., here, here, and here), but the same is true of the judiciary, the organized bar (not just the American Bar […]

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The Pro Bono Hoax: Part II

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.