Balkinization  

Wednesday, May 02, 2012

For the Public Good

Jason Mazzone

New York's Chief Judge has announced that individuals seeking admission to the New York State Bar will be required to demonstrate they have performed 50 hours of pro bono work. The goal is to extend legal services to New Yorkers who cannot afford to pay for lawyers. Chief Judge Lippman estimates that the requirement will generate an impressive half million hours of legal work per year. In formulating regulations for this pro bono requirement, the Chief Judge would do well to think carefully and creatively about what kind of work counts towards the 50 hours. So far, the focus seems to be on traditional and predictable areas of pro bono activity such as domestic violence, employment problems, foreclosures, and issues of criminal law. A better approach would be to set aside assumptions and ask: if we have 500,000 hours of free legal work, what assignment of those hours will maximize the public good? Some uses of the 500,000 hours will produce mostly individual benefits. Other uses will produce larger public benefits. For example, most of the benefits that would come from assigning newbie lawyers to unemployment benefits cases or domestic violence issues will be captured by the individual clients who receive the free services--with little in the way of benefits to the public as a whole. By contrast, time spent counseling a technology start-up company (that cannot afford lawyers) benefits the company but it also also generates jobs for New Yorkers and tax revenues for the state. Likewise, helping a criminal defendant avoid conviction confers a large private benefit on the defendant. But given that virtually all criminal defendants committed the crimes with which they are charged, such an allocation of resources does not obviously benefit the public as a whole. On the other hand, working for a resource-strapped prosecutor's office to get dangerous people of the streets produces a public rather than a private good. Perhaps there will be plenty of hours to go around. Perhaps also some mix of allocations for private benefits and for public benefits is a desirable approach. The point is that in imposing the 50-hour requirement, the Chief Judge should weigh the costs and advantages of these choices because not all are equally for the public good.            

Comments:

Something like this:

"By contrast, time spent counseling a technology start-up company (that cannot afford lawyers) benefits the company but it also also generates jobs for New Yorkers and tax revenues for the state."

is what some attorneys have done historically without calling it pro bono that have resulted in generating jobs and tax revenues for the state and the federal government with the added bonus of the attorney ending up with a paying client. Sometimes doing good results in doing well.
 

This comment has been removed by the author.
 

Ah, judicially enforced slave labor.

FSU law had a similar mandate to graduate. Not being one to take abridgments of my liberty well, I searched for something my feminist supervisor would find particularly worthy - advising Operation Rescue on how to avoid legal problems. Since the law school did not limit our choices of forced servitude, there wasn't much she could do.
 

Bart, you don't have a constitutional right to be a lawyer. Mandatory pro bono is no more "slave labor" than mandatory attendance at an accredited law school or mandatory bar passage.

And far from making your point about how evil teh feminists are, the fact your work for Operation Rescue satisfied the requirement shows the requirement isn't some sort of leftist conspiracy.
 

It is amazing that a post on a New York requirement for bar admission has so stirred out yodeler, with his references to:

"judicially enforced slave labor"

"mandate to graduate"

"abridgments of my liberty"

"my feminist supervisor"

"forced servitude"

that serve to fill in his bio and perhaps explain how he has ended up as a DUI legal specialist. Sounds like the GOP "war against women" is being joined by libertarians, at least in CO. Perhaps our yodeler qualified for the "pro bonehead" award at FSU law for his advice to Operation Rescue, hands down.
 

Dilan:

"Bart, you don't have a constitutional right to be a lawyer. Mandatory pro bono is no more "slave labor" than mandatory attendance at an accredited law school or mandatory bar passage."

Actually, you do have a natural right to work at whatever you please so long as you do not harm another.

The purported reason for regulating attorney's is to ensure thry are qualified and thus do not harm their clients. Fair enough.

Involuntary servitude does not serve that puropse and is instead a shakedown for the privilege of belonging to a legal caste.

The fact that FSU Law allowed me to perform my servitude with Operation Rescue had nothing to do with their ideology or generosity. They simply neglected to define what they meant by public service and could not stop me. To eliminate that oversight is what the lead post suggests.
 

Query, was our yodeler's knowledge of ConLaw acquired at FSU law inadequate for him to challenge at the time what he now asserts:

"Involuntary servitude does not serve that puropse and is instead a shakedown for the privilege of belonging to a legal caste."

via the 13th Amendment?
 

The question isn't whether "virtually all criminal defendants committed the crimes with which they are charged," but whether the ones pro bono assistance helps avoid conviction did, and as to the rest, whether the system serves its larger social function better for having pro bono lawyers involved in it. I don't think it's really a close question whether the public as a whole benefits.
 

But given that virtually all criminal defendants committed the crimes with which they are charged, such an allocation of resources does not obviously benefit the public as a whole.

This is a rather limited view of things.

Being guilty, e.g., is not a reason to deny people rights. Equal justice under the law in general is furthered by public defenders, yes, even if the people are guilty.

As a previous comment suggested, it serves the system as a whole and society in general. Having a law student, e.g., help out a petty offender to get treatment or educational resources as part of a plea or alternate punishment scheme helps society as a whole get a more productive member.

Domestic violence help also doesn't only help "individual" clients but their families and communities (e.g., stopping other violence). You know, no man is an island and all that.

The start-up company idea is fine ... there is a place for that sort of thing, though that is the sort of thing that many would rather do than often more hard luck cases.

The overall idea that you should spread the resource around is a good one but the weighing involved is different somewhat.

[Also, pro bono work requirements to obtain licenses is overall a good idea and should be spread out beyond lawyers.]
 

Shag:

You have a fundamental right to work as you please guaranteed by the Ninth Amendment. Holding your license hostage to providing free labor infringes on this right.

Then you have a taking without compensation.

Finally, the prohibition against involuntary servitude should apply, but one court disagreed.
 

"The purported reason for regulating attorney's is to ensure thry are qualified"

And why can't the bar think that to be fully qualified you should have performed some form of "service learning?"

Of course I'm not sure your premises should be accepted. A law license has long been seen as a privilige granted, lawyers are "officers of the court", so why not ask for them to do public good in exchange for the license to practice?

"You have a fundamental right to work as you please guaranteed by the Ninth Amendment."

Hm, I don't see that part in my text. Is like those computer generated pictures with the hidden images you have to look at just right to see?
 

"The purported reason for regulating attorney's is to ensure thry are qualified"

And why can't the bar think that to be fully qualified you should have performed some form of "service learning?"

Of course I'm not sure your premises should be accepted. A law license has long been seen as a privilige granted, lawyers are "officers of the court", so why not ask for them to do public good in exchange for the license to practice?

"You have a fundamental right to work as you please guaranteed by the Ninth Amendment."

Hm, I don't see that part in my text. Is like those computer generated pictures with the hidden images you have to look at just right to see?
 

BD: "The purported reason for regulating attorney's is to ensure they are qualified"

Mr. W: And why can't the bar think that to be fully qualified you should have performed some form of "service learning?"


No one claims that compelled pro bono is for training purposes as if it were some sort of apprenticeship.

Of course I'm not sure your premises should be accepted. A law license has long been seen as a privilige granted, lawyers are "officers of the court", so why not ask for them to do public good in exchange for the license to practice?

I have a right to work in whatever field I wish so long as I do not harm anyone else. My right to work is not subject to acceptance into a caste or guild and I am not subject to involuntary servitude to the state to exercise that right.

BD: "You have a fundamental right to work as you please guaranteed by the Ninth Amendment."

Hm, I don't see that part in my text. Is like those computer generated pictures with the hidden images you have to look at just right to see?


Given that the Ninth Amendment is a default provision protecting unenumerated rights, I would be surprised to see a right to work enumerated there.
 

I certainly do not agree with this post, which fails to take into consideration negative impacts on the public when the legal problems of private individuals are not addressed.

Representing a tech company (which lacks funding to pay for its own lawyers) confers more benefits to the public than representing a victim of domestic violence or someone who is eligible for unemployment benefits but is denied them?

I strongly disagree. First of all, it is far from clear that representation of the tech company will be critical to its success. Plus, a tech company that has yet to attract enough funding to pay for its own lawyers is still in a very experimental stage.

But more significantly, the benefits from preventing domestic violence or denial of unemployment benefits can effect the larger community. What happens to children to witness domestic violence? How do they end up handling their future relationships? What happens to someone who is wrongly denied unemployment benefits and therefore cannot afford to pay rent? How does this impact the rest of society? What if it is more than a single person that is evicted, but an entire family?

I do not really think that representing victims of domestic violence or people who are eligible for unemployment benefits by are denied confers just an individual benefit. The negative consequences of continued domestic violence or lack of funding to pay for rent can have larger and longer term social implications.
 

"No one claims that compelled pro bono is for training purposes as if it were some sort of apprenticeship."

No one? Are you sure?

Besides, apprenticeship type things are not the only things service learning might be thought desirable of. State bars routinely profess to wider values than "we are competent" they also tout public servic components of their professional standards. So service learning would be ideal for that.

"I would be surprised to see a right to work enumerated there."

So its in the list of unenumerated rights. Gotcha.
 

Positive law may not be natural and natural rights may not be positive.

I'd be interested in the cite for this:

" ... the prohibition against involuntary servitude should apply, but one court disagreed."

As for unenumerated rights, they may be in the imagination of the beholder.
 

It is not necessary to dispute the basic idea that we have a right to lawful employment. One can, if one wishes, of course, but it isn't really necessary.

Employment, particularly involving licenses and officers of the court, come with regulations. The debate here is over the legitimacy of them.

This general principle was accepted in Dent v. West Virginia, written by Justice Field, libertarian as things go.
 

From FDR's "The Economic Bill of Rights" set forth in 1944:

"In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for all our citizens.

For unless there is security here at home there cannot be lasting peace in the world."

Hear, Hear!
 

Does anyone here truly believe that the freedom to work at what you will is not a fundamental right in the Land of Opportunity?
 

"The Second Bill of Rights: FDR'S Unfinished Revolution and Why We Need It More than Ever" by Cass R. Sunstein is recommended but I'm not necessarily talking about positive rights here.

See also, "A New Birth of Freedom: Human Rights, Named and Unnamed" by
Charles Black Jr.
 

50 hours of being stuck in a stress position isn't torture, but 50 hours of helping people in need is slavery.

That worldview is double plus ungood.
 

Our yodeler, with this:

"Does anyone here truly believe that the freedom to work at what you will is not a fundamental right in the Land of Opportunity?"

confirms that he is a closet New Dealer. [He did not disclose this in his work of Friction.]

Hear, Hear!

Alas, our yodeler's free market libertarianism says "I got mine - thanks to my hero Ayn Rand - and let the rest pull themselves up by their own bootstraps." Yes, it is indeed great that there is a fundamental right to work, but the Bush/Cheney 2008 Great Recession dug such a deep fiscal hole that the GOP tries to prevent government from refilling it to benefit the GOP this fall. (Recall in 1968 Nixon's "secret plan" to end the Vietnam War? That was a real "secret plan" that took how many years to implement, and badly? So "R-MONEY" and the GOP have a plan (Ryan?) to improve the economy that they were responsible for with 8 inglorious years of Bush/Cheney's GOP if and when they get back in power. Kind of hard to swallow such a reprise.)

FDR's challenge in 1944 was not heeded. Joe makes good reading suggestions.

But seriously, folks, the problem with our yodeler's quote is "freedom to work at what you will" with the emphasis on "what you will." Perhaps the addition of "for which you are qualified" might serve to protect the public. Would a DUI defendant want to be represented by an unqualified DUI legal expert?
 

"Does anyone here truly believe that the freedom to work at what you will is not a fundamental right in the Land of Opportunity?"

I don't think that right is upset by most licensing laws, if that's what you mean.
 

Our yodeler may be on the verge of coming out of yet another closet to support the 99% who want to work at meaningful jobs for which they are qualified but are thwarted by "R-MONEY'S" goal of continuing income inequality if elected.

I entered the MA bar in the fall of 1954. I was reminded that I and others sworn in had certain obligations, including the role of being officers of the court. Perhaps the efforts in NY are a means of accentuating this role. While the efforts may not be perfect, they are a form of experimentation that Louis Brandeis stressed at other than the federal level. Maybe an "opt out" by means of a sort of tithing pledge might be appropriate, with funds contributed to providing the poor in NY with legal access. Attorneys and would-be attorneys have an obligation for justice and fairness. We don't need our yodeler's political screeds of:

"judicially enforced slave labor"

"mandate to graduate"

"abridgments of my liberty"

"my feminist supervisor"

"forced servitude"

Let's give NY's experiment time to work.
 

"Attorneys and would-be attorneys have an obligation for justice and fairness."

Indeed. The bars police the profession for the state, this occurred because there seemed to be a lot of problems with unethical and incompetent lawyering beforehand. The bars do not just promise competent lawyers, they promise ethical lawyers, lawyers that will work toward improving the justice system and the perception of the justice system as one that is fair and works for all. It's at least reasonable to see how engaging in pro bono work could further these goals of the profession as a whole.
 

Shag: I entered the MA bar in the fall of 1954. I was reminded that I and others sworn in had certain obligations, including the role of being officers of the court...Let's give NY's experiment time to work.

My Colorado attorney oath begins: "I will support the Constitution of the United States and the Constitution of the State of Colorado... " and then discusses my duties to act ethically and honestly.

Having sworn an oath to support the Constitution of the United States, I am duty bound to oppose government mandates of involuntary servitude and takings like that proposed by the New York court, which BTW took a similar oath.

The fact that I am nearly alone here in supporting the Constitution is truly disturbing.
 

Fortunately, our yodeler is not the final determiner of the meaning of the Constitution; it would be truly disturbing if he were. Perhaps he can provide support for those who might be challenging the NY proposal with his:

" ... I am duty bound to oppose government mandates of involuntary servitude and takings like that proposed by the New York court, ...."
 

Jason Mazzone: I think you underestimate the importance and the far-reaching effects of violence against women. One of the basic promises of a liberal society is that individuals be able to conduct their lives free of private violence. The usual statistics surrounding domestic violence suggest that we do not keep this promise vis-a-vis women. For this reason, requiring lawyers to contribute one week of their time per year strikes me as an unalloyed good.

Setting aside the fact that protecting this kind of liberty interest might be more important than enabling start-up companies to flourish, I also think that you miscalculate in your hypothetical cost-benefit analysis (or better, you don't calculate at all, which is part of the problem). I assume that we can arrive at a reasonable estimate of the number of work-days lost due to domestic violence each year. In addition, we might be able to pro-rate lost productivity for victims of domestic violence who do manage to make it to work. My bet is that these lost hours outweigh the long-term gains achieved by providing counsel to start-ups that still may fail in the marketplace.

I think your broad gesture is correct: 500,000 hours of collective time should be used creatively to try to improve our collective lot. I think that you truly underestimate the problems caused by domestic violence, though.
 

Jerr Mazzone: buywindows7keys.comI think you ignore the significance and the far-reaching results of assault against females. One of the primary guarantees of a generous community is that people be able to perform their life free of personal assault. The regular research around home assault recommend that we do not keep this guarantee vis-a-vis females. Because of this, demanding attorneys to lead one weeks time of their time per year hits me as an unalloyed good. Cheap Windows 7 ultimate Key
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