Friday, September 16, 2016

Pro Bono Bill Veto Was a Shock

By Cindy Thomas Archer
Associate Dean, Clinics & Experiential Learning

This op-ed originally appeared in the Friday, Sept. 16, 2016 edition of the Daily Journal.

On Aug. 29, Gov. Jerry Brown vetoed Senate Bill 1257, which would have required those seeking admission to the California State Bar to complete 50 hours of free legal services for those who could not otherwise afford to pay a lawyer for her services.

I was shocked, as were most of the lawyers I knew, by Brown’s veto because for years there have been signs that such a requirement seemed inevitable.

Let’s go back a few years. In 2012, the State Bar Board of Trustees approved the appointment of the Task Force on Admissions Regulation Reform. For almost four years, TFARR studied proposed competency training requirements for admittees to the California Bar. The seemingly least controversial of its proposals was the requirement that those seeking admission complete 50 pro bono service hours. I spoke with law school public interest and pro bono project directors across the state and, while other aspects of the TFARR recommendations were hotly contested and debated, everyone thought this requirement would easily be instituted.

Further, I have spent the last 16 years at Loyola Law School, Los Angeles, the first ABA-approved law school in California with a pro bono legal service hours graduation requirement. It’s an extension of Loyola’s social justice mission from its founding. It is part of our identity and a tool for helping to address the access to justice gap in the community. In fact, many students choose Loyola recognizing and appreciating the school’s commitment to service. And our students annually contribute 60,000 hours or more in pro bono services. Similarly, as of Aug. 23, the ABA Standing Committee on Pro Bono and Public Service reported on its website that of the 184 law schools responding to the survey, 41 have a pro bono or public service requirement for graduation. Another 127 have formal voluntary pro bono programs; 16 others have independent student pro bono projects.

Then State Sen. Marty Block entered the conversation with SB 1257, an answer to the access to justice gap for the masses who cannot afford a lawyer. A no-brainer, right?
Despite an undisputed gap in access to justice, despite the fact that increasingly attorneys are graduating from schools that instilled the importance of public service, and despite the fact legislators and a State Bar Task Force support a pro bono requirement, Brown vetoed the legislation. Why? Brown has a reputation for compassion for the downtrodden, and he has himself acknowledged the significant access gap in the legal system. But Brown vetoed the bill reasoning that recent law graduates should not be burdened with providing free services when they are struggling with high debt and low employment.

He challenged the state to be more thoughtful about how to balance the need to provide access to legal services with the burden newly minted young lawyers carry.

While some were disappointed, Brown’s decision to veto the bill is an opportunity — an opportunity to avoid the “no-brainer,” a quick and easy new bar requirement that may have provided some relief, but would not have fundamentally solved our access to justice problem. Rather than seeing Brown’s veto as an end to the conversation, I see it as a new challenge to not only continue, but to possibly broaden and deepen the conversation about lawyers, legal education and access to justice. There is always that chance that if the bill had passed that some would have felt at least one issue had been resolved and the conversation about a very important topic might have stalled.

Pro bono service is not merely about free services but a recognition of why the legal profession exists.

“Pro bono” is short for “pro bono public,” meaning “for the public good.” As a professor of professional responsibility, one of my goals is to engage my students in the discussion of what makes attorneys professionals. I suggest to them, among other things, that professionals owe duties to society not inherent in other careers. In other words, it is not merely when lawyers are providing free or low bono services that we are providing for the public good, but our existence as a profession is for the public good. Our training often makes us gatekeepers to access to justice. Thus, acting for the public good is a part of a lawyer’s paid as well as uncompensated services.

The pro bono service requirement at Loyola and other California law school allows educators to continue that conversation about what makes us professionals in a practical, hands-on way. It is significant in helping young lawyers develop their professional identity in a supportive, supervised educational setting. While the implementation of SB 1257 would have ensured other area law schools would have instituted similar requirements, they would not have necessarily done so as a result of meaningful conversation by choice as a part of a reasoned approached with clear education goals. Choice and opportunity are important for the long-lasting impact such programs could have.

The governor’s veto at least temporarily, ensures providing a prescribed number of service hours does not become another box to check for admission to the bar. It also does not, however, provide any answers to the widening access-to-justice gap. It will require the conversation to continue in even more creative and thoughtful ways. A legal education can be expensive. It is true there is an ever-widening gap for access to justice for some. Also, law is a business as well as a profession. What are the answers? Strict admissions regulations alone, probably not. Maybe technology. Maybe certified, non-lawyers practicing in limited areas. Maybe education reforms. Probably a combination of all of them grounded in the fact that the law is a profession pro bono publico.

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