A colleage whom I like and respect takes a very different view of New York’s new mandatory pro bono requirement for bar appicants than I did yesterday. In the course of our email exchange, he made this point:
I have long believed that all lawyers – including law professors – should provide pro bono service to those unable to pay. This is obviously reflected in every state’s ethics code, although most lawyers treat these provisions as merely aspirational, and the vast majority of lawyers do not approach even a fraction of this number. I view this as highly problematic and not only for moral reasons. Part of being part of a largely self-regulating profession is to refrain from engaging in activities that reflect poorly on the profession but also to engage in activities that will help improve and maintain the image of the profession. Pro bono is obviously an example of the latter, but, like many things, most will choose to not participate in it unless they have some exposure to it early on.
This is a serious argument, but it’s one with which I fundamentally disagree. First, and least important, we are not a self-regulated profession. We are a government-regulated profession, same as barbers, plumbers, physicians, home remodelers, private detectives, truck drivers, airline pilots, and so forth. We are given licenses by a governmental body, and without that license we are forbidden to practice our profession and are subject to fines and even imprisonment for doing so. When the State of New York requires a license and sets the standards for obtaining that license, it is a government license, whichever branch of the government issues it.
Second, I find it fatally easy myself to decide that (a) something good needs to be done, and therefore (b) you should be the one to do it. Judge Lippman runs one of the most complex and expensive court systems in the history of the planet — one so complex that ordinary people are priced out of it. I suspect it’s much easier for him to compel other people to provide free services to those forced to work their way through a system run primarily for the benefit of judges and court employees, than it is to reform the system to allow people to dispense with some categories of legal services and allow others to get it from reasonably priced providers. We in the law schools are famous for this — faced with students who have far too much debt to allow them to succeed in ordinary law practice, we don’t choose to figure out how to slash costs, we argue that the government or somebody else should figure out how to make their debt go away.
Third, I’m dubious about the closing point, which is the “unless I make you eat broccoli as a child you’ll never eat it as an adult” argument that all parents wrestle with. I know others disgree, but I tend to believe that making people do things more often gives them an aversion to it than otherwise. I’m part of the generation that grew up standing at attention during the Pledge of Allegience, reciting the “under God,” getting stuffed full of the patriotism of the 1950s and early 1960s on the theory that “we must teach our children how great America is and how important our freedoms are.” It’s pretty easy to see how that turned out — maybe the most cynical, self-absorbed, corrupt, and least patriotic generation in U.S. history.
People do all sorts of rewarding things without being compelled by the government to do them. Almost by definition, if the government has to make you do it, it’s something you’d rather not do in the first place.
Fourth, I’m always dubious about the idea that there’s something particularly noble about working for those who can’t pay you. I like to use the example of a soup kitchen. It’s a wonderful thing, people volunteering their time to help serve the soup to the homeless. But who are the most important people in that process? It’s the farmers, the food processors, the distributors, and the truckers (all of whom make a living) who make the food possible in the first place. It makes you feel good to work a day at the soup kitchen. It’s much more valuable to society that you work hard as part of the economic system that makes the soup possible. Charity is a great thing. My Church teaches it as one of the cardinal virtues. But charity compelled by force isn’t charity, it’s simply taxation. I don’t think there’s any correlation between increasing taxation to fund welfare programs and increasing the amount of voluntary contributions to welfare programs.
Fifth, and finally, I don’t see why the fact that the government requires me to have a license requires me to care one way or another about the image of my licensed trade. I have an economic interest in doing so, to be sure — though more of an interest in having you do it — but why does the fact that I have a license to drive an 18-wheeler across state lines mean I have some social obligation to help ensure that truck drivers are held in high regard? I’m proud of being a lawyer, and think it’s the greatest of the secular professions, but if doing what I legitimately believe a client deserves brings the profession some disrepute, I’m sorry, but I can’t see how that should weigh on me. As a lawyer, I don’t represent other lawyers, I represent clients.
A long response to a fairly short point.