January 17, 2006

Illiberal Pro Bono?

by PG

I've heard complaints that the pro bono projects offered by law schools often don't mesh well with some students' preferred politics. For example, if you think that our justice system executes too few people, working on behalf of capital defendants and death row inmates is not going to be appealing. Nor is this a concern that applies only to law school, though it can be more galling in a period when such work is required for graduation rather than merely encouraged for PR. Some people choose their law firms based partly on the pro bono work the firms do. Much as one young associate will prefer a firm that is not only accepting of homosexuality but actively working to further sexual orientation equality, another might want to be at a place that will be defending the First Amendment rights of abortion clinic protestors.

The conservative farm system, though generous in providing students chances at well-funded summer internships and beautifully catered free dinners, has been somewhat slower in finding ways for such proteges to complete their required volunteer hours. A few years ago, the Federalist Society launched its Pro Bono Center, which "offers public interest firms a unique and exciting opportunity to provide the Society's lawyers with information about opportunities for pro bono service in the cause of individual liberty, traditional values, limited government, and the rule of law."

One of the basic difficulties of finding such opportunities that will meet the law schools' requirements is that pro bono clients must be so poor that, in the absence of free assistance, they would be without legal aid -- hence the lure of political refugees, low-income tenants and such. Even when conservatives are worrying about disadvantaged people, as in the Kelo dissents, the objects of pity tend to be people who are advantaged enough to hire a cheap lawyer even before the Institute for Justice shows up.

There is a solution, however: religious prisoners. The Becket Fund for Religious Liberty recently made available the following pro bono research opportunity:

A magistrate judge in one of our cases has suggested that monetary damages might not be available for a RLUIPA (Religious Land Use and Institutionalized Persons Act) claim. Since RLUIPA is directly modeled on RFRA (Religious Freedom Restoration Act), we are looking for all RFRA cases where damages have been awarded, with the goal of proving the magistrate judge wrong.
While the entities involved with religious land use, like those involved in takings claims, generally have enough money to pay their own attorney, the institutionalized persons rarely do, which is why they get the help of liberal do-gooders when they're on death row. For their religiously-motivated need to have long hair, segregationist literature and Satanic services, however, prisoners can turn to conservatives.

UPDATE: ambimb titles his post on the City Journal article discussed in comments with "Pity the downtrodden landlord"; theoretically, there must be some landlords who are operating so close to the edge of bankruptcy that they really can't afford to pay a lawyer, so perhaps they should start declaring their financial instability openly in hopes of getting 40 hours per Republican student.


The Becket Fund for Religious Liberty has contacted me with another pro bono project that looks interesting. As part of an effort to make sure state prison systems provide nutritionally adequate kosher meals to observant Jewish inmates, they need help researching the kosher meal programs in state prison systems. Cost is one of the defenses that non-compliant states are using to avoid providing kosher meals, so the project also needs some research on how much such programs cost to implement and run.

January 17, 2006 03:09 AM | TrackBack

One of the basic difficulties of finding such opportunities that will meet the law schools' requirements is that pro bono clients must be so poor that, in the absence of free assistance, they would be without legal aid -- hence the lure of political refugees, low-income tenants and such.

The problem is actually a little more structural. For instance, when a pro-bono project includes a blatant political component, that component gets called "outreach" for a liberal cause. I've yet to see anyone stretch the rules for a conservative one. (For instance, many small businesses should by all rights qualify for pro-bono, but might not if one looks at income instead of profit. A creative and conservative-friendly pro-bono outfit at a law school could push such ideas.)

Posted by: A. Rickey at January 17, 2006 06:07 AM

We are all familiar with: "There is no such thing as a free lunch." So how truly "pro bono" is "pro bono"? There are some lawyers in the trenches fighting needy causes at low pay against the tremendous odds of highly financed interests. Yes, some large law firms will provide attorneys to get involved, perhaps on a selected basis, in a worthy cause that cannot afford to pay its way, and sometimes successfully. But the law firm will surely find a way to make up for the lost compensation of the "pro bono" attorneys' time, but not with a salary cut taken by the latter; perhaps by charging deep pocket clients higher rates. Economics of the profession plays a powerful role in determining whether or not and to what extent a large law firm commits to "pro bono" work. Some cynics might think that such "pro bono" work can, or has, become a profit center for the firm, to which the response may be, "but what's wrong with doing good and well at the same time?". But what happens when a heavyweight client of the firm objects to a particular "pro bono" assignment taken on by the firm, for ideological or competitive reasons? How might the firm react? These concerns raised in advance of taking on the "pro bono" work may not surface if the firm declines the assignment. Don't get me wrong. I am all for "pro bono" work and the motivations for getting involved. But this is not a simple matter. There is no free lunch and there can be a cost to taking on "pro bono" work.

Posted by: Shag from Brookline at January 17, 2006 06:17 AM

The law schools could add clinics on assistance with VA claims, or assistance with the legal problems faced by impoverished families of active-duty military personnel.

More broadly, though, "the law schools' requirements is that pro bono clients must be so poor that, in the absence of free assistance, they would be without legal aid" is the whole point of the dispute, isn't it? As the FedSoc list shows, law firms define pro bono much more broadly than just indigent individuals. Many of the organizations on that list are extremely well-funded, but free legal work on their behalf is counted as a public good because the organizations are non-profits working for various social causes. Working from that definition, it's easy to find conservative outlets for pro bono work as well as liberal ones. By contrast, a decision by the law schools to restrict their definition of pro bono to a subset of legal work that tends to follow liberal causes stacks the deck somewhat.

Posted by: Tom T. at January 18, 2006 07:46 AM

Moreover, the City Journal article that may have prompted this post argues that the law school pro bono clinics are not limiting themselves to the representation of indigent individuals anyway.

Posted by: Tom T. at January 18, 2006 08:03 AM

Tom T.,
Aren't JAGs supposed to be the attorneys for active-duty military personnel's families? This is not to say that these families should not receive additional legal help, but they don't meet the "would otherwise be unrepresented" standard. As for assistance with VA claims, because such claims involve litigation against the federal government, clinics that receive federal funding may be precluded from such work. For other clinics, however, that's a very good suggestion; VA claims would be a great hands-on training in administrative law.

I don't read City Journal regularly, and the post was prompted by receiving the above-quoted message from the Becket Fund. However, as most of my knowledge of clinics comes from those available at my own law school -- which MacDonald specifically derides -- I find her article undescriptive of my own situation. She describes small-business clinics as a rarity, but my school has one (and it's quite selective, preferring students who have taken tax and corporations).

She also has some common conservative contradictions: she condemns lawyers for lobbying for educational and abortion access, saying that these have no connection to the alleged purpose of helping the poor, then declares dropping out of high school and bearing illegitimate children to be causes of poverty. Obviously she would declare the problem to be the individual's failure of responsibility in getting pregnant and leaving school, but as legal skills can't really be applied to that area, I don't think the purported subject of her piece, i.e. law school clinics, would be of much help for her preferred solutions.

She also conflates the well-funded organizations for which law students work with the clients that those organizations serve. For example, she assails clinics for giving their labor to the San Francisco AIDS Foundation, because the Foundation has money. But so does the Becket Fund -- the point is that the clients, whether they be AIDS-infected individuals discriminated against in housing and medical care, or prisoners prevented from exercising their freedom of religion, are indigent.

Finally, for a piece of law school clinics not to contain a single quote from a law student in the clinics that MacDonald disfavors, and quotes from only two students in the business clinics she supports, is bad reporting. MacDonald seems to have done most of her research by looking at the clinics' websites and occasionally talking to a clinic director, and fails to evince much idea of what being a law student actually is like. For example, she wants clinics to be more pedagogically useful for the students' future careers by offering transactional experience in securities registration -- exactly the work one does as a summer associate anyway.

Posted by: PG at January 18, 2006 02:08 PM

Good points, and I'd forgotten about the JAGs.

Posted by: Tom T. at January 20, 2006 09:02 AM

There is lots of work to be done helping poor folks protect their property from state aggression.
If you are poor, you are at much higher risk of the state taking your house or your car or your children or your garden or your job. IJ's the proverbial example of finding poor clients with economic liberties issues.

Posted by: arbitrary aardvark at January 25, 2006 02:58 AM
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