Do lawyers slip the surly bonds of self interest when they work for free? Does the logic of agency and agency cost evaporate? Chief Judge Jacobs of the Court of Appeals for the Second Circuit thinks not. (Download 20081023_DJProBonoSpeech.pdf).
Dean Irwin Chemerinsky of the UCI School of Law disagrees. He thinks Jacobs's claims "a slap in the face from a person of enormous power and influence." Presumably he will issue a challenge and we may repair to Weehawken to sort this out.
Judge Jacobs makes some good points it would be better to acknowledge than to disparage as an insult. Dean Chemerinsky's reply makes some good points of its own that qualify Jacobs's thesis in important ways. Scorecard beneath the fold.
Here is Judge Jacobs's nutshell summary of his thesis:
"much of what we call legal work for the public interest is essentially self-serving: Lawyers use public interest litigation to promote their own agendas, social and political--and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting--to confer glamor on their work, and to give solace to overworked law associates."
A lot of what Judge Jacobs says here is true. "Self-serving" seems a poor choice of words in the sense that "impact" litigation (a very unfortunate term) affects many people beyond the lawyer pursuing it. That is the whole point. But why deny that many people do pro bono work because they personally care a lot about some issue? Are they more virtuous if they don't care? Dean Chemerinsky's list of his own pro bono work evinces an obvious (and, in my view, laudable) concern for prisoners and Guantanamo detainees. Good for him.
It is also true that law reform efforts may turn to the courts because of dissatisfaction with the political process and that a predictable effect of such efforts is to increase the power of courts relative to other government institutions. I don't see the point of denying that, much less of denying the true points that firms use pro bono as recruiting and (to a lesser extent, I think) training tools.
Dean Chemerinsky thinks Judge Jacobs is wrong to point out these facts because doing so might give solace to lawyers uninterested in doing pro bono work. But it does not follow that what Judge Jacobs said is wrong, and that is more important. I do not think he should be condemned for telling the truth on these points on the ground that someone might believe it. Indeed, his speech reminded me of an article by Edgar and Jean Camper Cahn, important figures in anti-poverty lawyering in the 1960s and 1970s, entitled "Power to the People or to the Profession?—The Public Interest in Public Interest Law," 9 YALE L.J. 1005 (1970). At least Judge Jacobs didn't question whether there would be as many public interest lawyers if the VISTA draft deferment were repealed.
Having said that I also don't see why Judge Jacobs' remarks should dampen enthusiasm for such work. For one thing, what's so bad about acknowledging that you might personally enjoy pro bono work? Since when is "There's Nothing In It For You" an effective recruiting slogan? (Note to the ACS: distribute this speech at your next meeting as a way to fire people up about pro bono work.) For another, Judge Jacobs praises certain types of pro bono work--what would be called casework in the old casework vs. law reform debate. He favors:
"wills for the sick, corporate work for non-profit schools and hospitals, and the representation of pro se litigants whose claims have likely merit. (Perhaps less is done in the way of assistance to small businesses and individuals who could use help in coping with the web of regulation they encounter.) My colleague, Judge Robert A. Katzmann, has called for lawyers to step forward to assist aliens who are working their way through our immigration system, and I subscribe entirely"
What's not to like?
Part of this debate is about the traditional casework vs law reform. On that debate both Judge Jacobs and Dean Chemerinsky have something useful to say. As I recall, anti-poverty law reform efforts were not durable successes. Judges tended not to try to force assistance payments and when they struck down particular restrictions they often prompted backlash. Lots of transaction costs with no payoff is not a recipe for success anywhere.
But not all such efforts are wasteful. The claim that law reform efforts are antidemocratic loses much of its force on topics where democratic processes work poorly. Where that is the case and where the relevant institutions are likely to implement judicial decrees faithfully (without having to impose taxes) law reform effort can produce net gains. Litigation over prison conditions, an example Professor Chemerinsky offers from his own work, probably fits this bill.
Perhaps the debate offers some ground for agreement: Pro Bono work is not inherently good or bad; it can be invaluable or wasteful. The trick is to direct efforts to areas where the work is likely to pay off both for the lawyers involved and, on a net basis, for society. I would like to think Judge Jacobs and Dean Chemerinsky would agree.