Yesterday I read a blog post by New York Law School professor and associate dean Stephen J. Ellmann that discussed the question of whether to consider law school clinical and externship participation toward New York’s new 50 hour pro bono requirement for admission to the bar. The article was quite interesting and highlighted many questions surrounding the issue. When people think of pro bono, most would consider it to be service provided for the public good without expectation of fee. Many debate whether work for the public good should be considered pro bono if any compensation is given in exchange for those services. ABA Model Rule 6.1(b)(2) includes some pro bono service “at a substantially reduced fee to persons of limited means.” (Emphasis added). The question of when compensation pushes service outside of the definition of pro bono is a particularly murky issue in relation to law students and clinical or externship participation.
The ABA Standards and Rules of Procedure for Approval of Law Schools makes a distinction between law schools offering supervised live-client or other real-life practice experience (302(b)(1)) and participation in pro bono activities (302(b)(2)) but makes no mention of compensation. One view is that the credits received for this work would be similar to monetary compensation received by practicing attorneys. The question raised in the context of Ellmann’s blog post is whether there should be an exception when the pro bono hours are necessary to gain admission to the local bar.
Professor Ellmann makes four arguments in support of his suggestion that clinical and externship hours should count toward the New York requirement:
- Student service for credit is comparable to pro bono provided by practicing attorneys who are allowed to count their service toward billable hours or who are given paid time off to participate in pro bono activities. As this is widely accepted as pro bono, so should clinical and externship participation;
- The reward that students receive for participating in clinical and externship programs, namely credit toward their law degree, is not only modest, but students actually have to pay for it with tuition;
- The central purpose of most clinics is to provide representation to those who can not afford it, or service for the public good. To disregard this work seems to miss the point; and
- Clinical work provides a supervised setting for students to represent and advise those in need in a way that pro bono service outside of the clinical or externship context may not. Not counting these hours toward the requirement may discourage participation in clinics and externships going forward.
What are your thoughts? Does including clinical and externship hours in the calculation for bar admission undermine the spirit of pro bono? Is there value in instilling the importance of providing pro bono without expectation of benefit, but primarily as a responsibility of being an attorney?
Share your thoughts in the comments below.
~ Adrienne Packard