by Jan L. Jacobowitz and Judge Vance E. Salter
Over the past three years, the authors have spoken at length with groups of law students who have completed the first year of law school and spent the summer term in a public interest program underwritten by The Florida Bar Foundation.2 We asked the students to respond to a question raised by the comprehensive, but gloomy, report on public interest and pro bono legal services prepared in September 2008.3 What can law school faculty, practitioners, Bar leaders, legal service nonprofits, and judges do to encourage 1) greater interest in public interest legal jobs, and 2) habit-forming, early commitments to pro bono hours?
Once posed, the question became the catalyst for role reversal in the classroom. Every student had at least one suggestion, and several had many. The students became the teachers. We listened while the students instructed us how to modify the law school experience to increase interest and participation in public service. Initially, we thought that this group might be the proverbial “choir” — the students who had already chosen the Bar oath’s path of helping the defenseless and oppressed — and that for comprehensive answers, we needed to reach a group of their peers who went into law school for that other commodity that is given a passing mention in the oath — “lucre.”4 But, as usual, the truth was more complicated than any preconceived notion about venal motivations among their classmates (the clichés: BMWs, Rolexes, prime real estate, etc.). After providing the background for our discussion with the students, we will recount their suggestions and identify the persons and groups within the legal profession who might best turn the students’ thoughts and words into action.
Background: The 2008 Report and “Findings About Law Schools”
After charting the decline in pro bono legal services over a period of years, the 2008 report, “Pro Bono: Looking Back, Moving Forward,” prepared for the Florida Supreme Court and The Florida Bar’s Standing Committee on Pro Bono Legal Service by Carmody and Associates (2008 report), analyzed the causes of the decline and the steps that might be taken to reverse the trend. The predominant causes include:
• Family obligations. “With increasing numbers of female attorneys who are mothers or caretakers of aging parents, and male attorneys participating more in child-rearing, the work/family dynamics and times have changed. Less discretionary time is available for many attorneys.”5
• Increasing demands at work. More lawyers report that they are overworked. Solo and small firm practitioners are juggling substantive legal matters, billing, marketing, and administration. Large firm practitioners report increasing billable hour requirements. Public sector lawyers report increasing workloads after budget cutbacks.6
• Lack of skills or experience. Well-intentioned practitioners sometimes voice a concern that they are specialists with no experience in the practice areas that dominate in the poverty community — landlord/tenant, foreclosure, bankruptcy, immigration, family law, payday and used car loans, and public benefits, for example.7
• Other community service. Some attorneys report a preference for charitable work that does not involve “pro bono” (legal work for those unable to afford the assistance) — service through a church or temple, participation in children’s athletics or scouting; fundraising for nonprofits, etc.8
• Poor information regarding local legal aid programs. The 2008 report found significant communication gaps between legal aid programs and the practitioners who might take pro bono cases with or for the programs. Some practitioners were unaware that malpractice insurance is provided by the pro bono programs; others say they haven’t been asked to help the legal aid programs in the community.9
The 2008 report next compiled a number of recommendations calculated to strengthen the pro bono framework in Florida. Identifying law students as the best prospects for pro bono service in the future, one section recommended:
Law Students. The best time to begin pro bono service is early — in law school. The  law schools in Florida have a variety of pro bono policies — some that require pro bono legal services and some that promote voluntary opportunities. Law school pro bono programs can give law students a sense of professional responsibility about pro bono legal services and educate them about the legal needs of poor people, but most importantly, they give students their first pro bono experience, which may make pro bono legal services after graduation more attractive.
Programs can increase the number of law students experiencing pro bono legal services by coordinating current pro bono attorneys to speak at law schools about the personal satisfaction they derive from pro bono cases. Additionally, legal aid organizations in Florida have the most placements by law school pro bono programs of any public interest organizations. They must make sure that law students have the best pro bono legal services experience possible so they are more likely to volunteer once they become attorneys.
Finally, programs should systematically recruit new attorneys who have provided pro bono service as students. This is a lost opportunity for programs that do not do so.10
An attachment to the 2008 report11 compiled a series of “Findings About Law Schools.” The findings described the pro bono policy and awards or other recognition for pro bono work for each of the 10 law schools in Florida.12 In a nutshell, the schools are about evenly split between mandatory pro bono service requirements and voluntary requirements, and the required or aspirational hourly targets average about 30 hours. Many of the law schools also have “public interest fairs” at which the nonprofit legal services providers may recruit students for employment after graduation. Law school clinical programs and externship programs providing student placements with legal aid providers are also common and are considered effective.13
Thus, the report provided the impetus to ask the rising second-year students to suggest what can be done to increase participation in public interest employment and pro bono services both before and after graduation.
Tuition, Loans, and Deferred Gratification
The students repeatedly described the dismal economics confronting them as they approach graduation.14 The cost of three years of education drives a calculus that herds most students toward the highest starting salaries — typically offered to the big-firm or “boutique” firm associate. Working backwards, the perceived prerequisites for those jobs (though not necessarily in this order of priority) are felt to be law school and undergraduate pedigree, law school cumulative grade-point average, law review experience, and moot court experience.
This collection of comments encourages attention to three measures. First, what can the Florida legal community do to lessen the financial pressure that drives students away from the lower-paying jobs in the public interest sector? Second, what can law schools do to help students take a longer view of a career — to appreciate that a year or two of work with a legal aid provider is 1) life-changing, and 2) a greater opportunity to counsel clients, solve problems, and try cases in a real courtroom than that experienced by a peer in a big firm practice?15 Third, can the recruiting committees at the “high salary” firms be convinced to encourage their recruits to take a year or two in those public interest positions, much as they might encourage (or at least, allow) a prospective associate to accept a judicial clerkship?16
One promising development, and one that the students earnestly hope will continue, is the increase in law school loan repayment assistance programs (LRAPs) available to graduates in public service.17 The students also suggested that law firms could facilitate greater public interest and pro bono work by new graduates, at a relatively modest cost, by funding a graduating student’s law school debt payments during that year or two. This funding, said the students, would allow them to live on the lower salaries offered by most legal aid providers or while in a public interest fellowship, in the event they are not eligible for one of the LRAPs.
Early Exposure and Increased Clinical Opportunities in the Curriculum
The mantra among practitioners and judges for several years has been “professionalism,” a code of conduct intended to repair the dignity and honor of lawyers as a group. In September 2011, the Florida Supreme Court formally amended the Oath of Admission to The Florida Bar to include a pledge of “fairness, integrity, and civility” to opposing parties and their counsel. Commendably, many law schools now introduce core principles of professionalism during the first year (sometimes during the orientation sessions), before the overwhelming barrage of contracts, torts, property, civil procedure, and other foundational courses.
However, when we discussed our profession’s collective obligation to serve those who cannot afford legal assistance, the students revealed that their level of awareness and their exposure to information was much lower until they plunged into their public interest internships after the first year. Students are generally not given, or read, the Oath of Admission to The Florida Bar before they accept an offer of admission to a Florida law school.18 Should law schools, like a flight crew checking to be sure that all the boarding passengers are actually intending to go to Cleveland, tell applicants for admission or arriving first-year students what they’re signing on to do after they graduate? Should we “Mirandize” each student on day one by requiring her or him to acknowledge that as a new lawyer she or he will “never reject, from any consideration personal to myself, the cause of the defenseless or oppressed?”
In fairness, this consciousness-raising is a two-way street. According to the students, the public interest nonprofits, and the poster-partners for pro bono work in private law firms, need to market these legal values on campus. The nonprofits need to arrange field trips for classes of law students to visit their offices.19 While the “public interest fair” disseminates some of this information, at most law schools attendance at these fairs is voluntary, and, therefore, its impact is difficult to gauge.
The students indicated that not only do greater measures need to be taken by the local legal community to increase student awareness, but there also needs to be a dramatic expansion in the curriculum so that every student has an opportunity to participate in a school clinical program and/or externship program.20 The students believe that once a student is exposed to the extreme need in the community, the often troubling impact of personal awareness will encourage participation in either public interest or pro bono work after graduation.
Private Firms and Recruiting
Here is where the rubber meets the road. Private firm hiring partners and recruiting committees need an examination of conscience to ask this question: Are we marketing our pro bono opportunities to students because we know this is a checklist item or selling point for successfully recruiting them, or does our hiring record show that a student’s demonstrated commitment to public interest and pro bono work actually improves a student’s prospects for being interviewed and hired? Are we willing to allow, maybe even encourage, an academic “star,” a student we’d like to hire, to defer her or his start date for a year or two — and perhaps even to allow partial or full credit for that experience for purposes of the salary grid — so that the student can work for the defenseless or oppressed?
What about a partnership between some of the private firms and the legal service providers that allows associates to rotate from the firms to the legal service providers for six-month intervals? The firm supports the legal service provider, but different associates rotate through the program. It is a win-win that has succeeded in several cities21 because the legal service provider and its clients get much-needed assistance, and the associates develop not only an awareness of the community needs, but return to the firms with invaluable client and courtroom experience. The law firm has an associate with more experience, the associate has benefited without sacrificing his or her position or income, and the legal service provider has only the indirect financial cost of supervision. Are Florida’s private firms willing to participate in these types of programs? And why isn’t every private law firm in Florida signing on to one of our state’s best pro bono initiatives yet, the “One Campaign?”22
These questions are of great interest to the students. Like children watching parents, they reach conclusions based on what firms do, not what they say. The cynical view of law firm recruiting goals is reflected in the “recruiting” section of the satirical “Anonymous Law Firm” website: “We look for associates who have what it takes to succeed here: a hearty work ethic, a keen understanding of the law, an eye for detail, an ability to be influenced, a heart of stone, and a lack of outside interests and pursuits.”23
It’s that “heart of stone” that is so particularly troublesome. Law students typically are idealistic and caring, and as they are recruited they may be at the peak of their motivation and opportunity to make the world a better place.
Clinical Programs and the “Voluntary/Mandatory” Debate
Like The Florida Bar itself, law schools disagree on whether pro bono work and clinical experience should be voluntary or mandatory. A majority of the law students in our group felt that it should be mandatory; however, academic credit should be available for all students — otherwise, the public interest/pro bono work would just be another addition to an already-heavy schedule of classes, activities, and job-hunting.
The students said that more public interest/pro bono clinical opportunities are necessary and added two caveats. First, they said that such programs need to carry academic credits if they are to draw substantial numbers of students. Otherwise, the traditional academics will always command top, and possibly exclusive, priority. Second, they said that the programs need to have a palpable benefit in post-graduate employment and placement. If not — and this is why the law firms’ encouragement or silence is so important — the worry about long-term employment will outweigh the instinct to improve access to justice.
As noted, we polled the students for their views on whether public interest and pro bono hours in law school should be compulsory or voluntary. The vote was overwhelmingly in favor of mandatory requirements, with the dissenters arguing that compulsory service hours engender resentment, not internalize habits that will survive after graduation. “You can’t legislate morality,” seemed to summarize the latter view. Of course, the other fascinating question is whether faculty members should be required to lead by example and work on pro bono cases with their students.24 The students are in favor of such a requirement, and the authors certainly appreciate the merit of such a proposal.
Finally, the students thought that their first-year legal research and writing courses, already a mandatory requirement, could provide student awareness and increase interest by incorporating some real-life and gripping cases arising in the poverty community — say a foreclosure case, a public benefits case, or an immigration case — along with the existing hypotheticals presented to them for briefing and argument. One imagines that the legal aid and pro bono providers would be only too happy to provide an array of such fact patterns for research and analysis by the students.
Our sessions with the students have been instructive. The summer internships and externships have strengthened their intentions to provide legal assistance to those without the means to afford it. As they move into their second year, we hope that they will spread the word by telling their classmates what they saw, heard, and felt during those programs.
But we also think that their reflections and suggestions warrant consideration by those of us who lead and teach our profession. Some of these suggestions may represent, we hope, part of the solution to reverse the decline in public interest and pro bono services described in the 2008 report. As today’s law student is shaped, so is tomorrow’s practitioner inclined.
1 “’Tis education forms the common mind; Just as the twig is bent, the tree’s inclined.” — Alexander Pope, Moral Essays, Epistle I, to Lord Cobham.
2 The Foundation provided funding for a stipend, and the students also earned three academic credits. The students worked 40 hours per week for nine weeks in South Florida public interest law offices including the Office of the Public Defender; Legal Services of Greater Miami; Florida Legal Services; the Dade County Bar Association Legal Aid Society; Florida Immigrant Advocacy Center; Catholic Charities Legal Services; Broward Legal Aid; and the Children and Youth Law Clinic and The Health and Elder Law Clinic at the University of Miami School of Law. The program included a two-night per week seminar course and was administered by the Center for Ethics and Public Service at the University of Miami School of Law.
3 The report, Pro Bono: Looking Back, Moving Forward, was prepared for the Florida Supreme Court and The Florida Bar’s Standing Committee on Pro Bono Legal Service (2008 report) by a well-qualified outside consultant, Carmody and Associates. Kelly Carmody & Associates, Pro Bono: Looking Back, Moving Forward (2008), http://www.floridasupremecourt.org/pub_info/documents/2008_Pro_Bono_Report.pdf.
4 Webster’s New Collegiate Dictionary (1961) says it well: “lucre: gain in money or goods; profit; riches; — now in a bad sense.”
5 Carmody, 2008 report at 17.
7 Id. at 18.
8 Id. at 21-22.
9 Id. at 29-30.
10 Id. at 46-47.
11 Id. app. 10 at 88-89.
12 In August 2009, an 11th Florida law school began classes in Naples: the Ave Maria School of Law. The twelfth, Thomas M. Cooley Law School, is scheduled to begin offering courses in 2012 in the Tampa Bay area.
13 The clinical programs play a vital, growing role in a law school’s overall ability to interest students in pro bono and public interest work for their professional lifetimes. See William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond & Lee S. Shulman, Educating Lawyers: Preparation for the Profession of Law 4 (2007) (“Professional schools . . . are the place where the profession puts its defining values and exemplars on display . . . . That is the challenge of professional preparation for the law: linking the interests of educators with the needs of practitioners and the members of the public that the profession is pledged to serve — in other words, participating in civic professionalism.”).
14 Those economics have been particularly dismal, of course, in the years following the 2008 report. A nationwide recession has included unprecedented law firm layoffs and the “deferral” of incoming associates’ start-to-work dates. Some recent law graduates have even applied their newly acquired legal training to prosecute lawsuits against their law schools for allegedly luring them into a bad investment of time and effort. Patrick G. Lee, Law Grads Sue Over Tuition, The Wall St. J., Aug. 11, 2011.
15 The private law firms paying the highest salaries are not lauded for providing first- and second-year associates a chance to first-chair or even second-chair a jury trial, a bench trial, or an appellate argument. Anecdotally, these years and more are generally spent reviewing documents, doing research, writing memoranda, and working in the office. In contrast, the first- and second-year prosecutor, public defender, or legal services attorney may find himself or herself interviewing and advising clients, and presenting cases to a judge and jury, in very short order and regularly. Private law firms have recognized that pro bono cases and public interest service are a faster path to “real” lawyering, for the same reason that law school clinical programs have increased in size and reputation. David Segal, What They Don’t Teach Law Students: Lawyering, N.Y. Times, Nov. 19, 2011.
16 We do not mean to imply that a judicial clerkship is not a form of public service. Clearly it is. The issue seems to be one of perception and prestige, not comparative public good.
17 Equal Justice Works, www.equaljusticeworks.org/resources/student-debt-relief (description of these programs).
18 Here the authors disclose that they, too, started a three-year, very expensive journey through law school without having read the oath that they would be required to take before entering the profession.
19 A visit to a legal aid nonprofit benefits everyone. The students see real clients with real legal problems, and the contrast in legal resources available to those in the poverty community. “Access to justice” issues can’t be fully appreciated until one understands who isn’t being fully served. The legal aid group appreciates the interest, and of course the internships and help, from the law schools. The clients appreciate that they are at a “real” law firm that merits attention from law students and faculty.
20 A related concern in Florida, which is beyond the scope of this article, is the delay often encountered in obtaining authorization for a student to serve as a supervised legal intern in court proceedings.
21 See Kristin Choo, Pay Cut for Public Service, ABA J., June 2009, available at http://www.abajournal.com/magazine/pay_cut_for_public_service/; Ass’n of Pro Bono Counsel, Considerations for the Placement of Law Firm Attorneys into Public Interest Organizations (2009), available at http://apps.americanbar.org/legalservices/probono/downturn/docs/apbco_considerations.pdf. As the latter site describes, California, Chicago, New York City, and Washington, D.C., have local or regional clearinghouses to facilitate these placements.
22 Developed by The Florida Bar Foundation, the “One Campaign” (One Client, One Attorney, One Promise) asks every Florida lawyer to take a pro bono case and offers opportunity lists, training, and other resources to facilitate that promise. See One Promise Florida, http://onepromiseflorida.org, and a related site, Florida Pro Bono, http://www.floridaprobono.org.
23 Anonymous Law Firm, http://www.anonymouslawfirm.com. Another cynical excerpt, from the section on “The Meaning of Life,” includes this existential reflection on modern-day law firm life: “Our study has revealed, among other findings, that the meaning of life is hard work, performed without rest and without complaint, for purposes often vague and unclear, in concert with people you neither trust nor respect. And that those who seek meaning elsewhere are simply misguided, and in line for a life of failure and disappointment.”
24 Erwin Chemerinsky, A Pro Bono Requirement for Faculty Members, 37 Loy. L.A. L. Rev. 1235 (2004). As predicted by Professor Chemerinsky, the American Association of Law Schools has not yet adopted the mandatory requirement proposed in his article.
Jan L. Jacobowitz is the director of the Professional Responsibility & Ethics Program in the Center for Ethics and Public Service at the University of Miami School of Law. She received her J.D. from the George Washington University School of Law and a B.S. in speech from Northwestern University. She began her career as a legal aid attorney in the District of Columbia; prosecuted Nazi war criminals at the Office of Special Investigations of the U.S. Department of Justice; and was in private practice with general practice and commercial litigation firms in Washington and Miami. She was the 2006 recipient of the Florida Supreme Court Chief Justice Commendation for Leadership in Judicial Education.
Judge Vance E. Salter is a judge of the Third District Court of Appeal, Miami. He received his J.D. from the University of Virginia School of Law and a B.A. in American History from Brown University. He received an honorary doctor of laws degree from St. Thomas University School of Law. Judge Salter practiced commercial litigation in Miami for 30 years before his appointment to the court. While in practice, he served as board member and officer at Legal Services of Greater Miami, Inc., and Catholic Charities Legal Services, Inc. He was the 1998 recipient of the Florida Supreme Court Tobias Simon Award and the American Bar Association Pro Bono Publico Award.
This column is submitted on behalf of the Committee on Pro Bono Legal Services, Judge William N. VanNortwick, Jr., and Corali Lopez-Castro, co-chairs.