Legal News

What the 2nd Circuit Chief Judge Really Said About Pro Bono . . .

By Dan Slater

On Tuesday, a squaring-off between a high-profile law school dean and the chief judge of the Second Circuit gave us an opportunity to address arguments that pro bono work is a self-serving and perhaps even anti-social pursuit.

At a Federalist Society meeting earlier this month, Dennis Jacobs (pictured, left), the chief judge of the Second Circuit Court of Appeals, reportedly slammed pro bono efforts. The reports angered Erwin Chemerinsky (pictured, right), the dean of University of California, Irvine School of Law, who responded rather aggressively in a National Law Journal article entitled “Shame on Dennis Jacobs.”

When the Law Blog called Judge Jacobs’ chambers for comment, he said the following, through a spokesman: “Dean Chemerinsky’s article was evidently based on a newspaper article of my talk that grossly misstates what I said and think. . . I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses.”

Now, perhaps in an attempt to clear things up, the Federalist Society has posted Judge Jacobs’ 11-page speech online. And, indeed, it appears that the words “self-serving” and “anti-social” require some more context in order to understand what the Chief Judge was actually saying. To that end, we’ve excerpted the salient points, context included.

He begins:

. . . In honor of this occasion, I am going to make some remarks that are perhaps more than usually provocative. . .I will touch on some of the anti-social effects of some pro bono activity; I will try to explain why such observations are virtually never made by judges; and I will encourage the kind of pro bono activity that is an aspect of traditional American volunteerism.

My point, in a nutshell, is that 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. . . 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. . .

There are citizens in every profession, craft and walk of life who are active in promoting their own political views and agendas. When they do this, it is understood that they are advancing their own views and interests. But when lawyers do it, through litigation, it is said to be work for the public interest. Well, sometimes yes, and sometimes no.

And continues:

Representation of the public interest is high moral ground, the best location in town; so everyone struggles to occupy that space. The field is crowded: the activists and public interest lawyers, the professors and law school clinics, and the pro bono cadres in the law firms. They’re in competition with government lawyers, and they often overwhelm government counsel with superior resources. But their standing to speak for the public is self-conferred, nothing more than a pretension. As a group, they (of course) do both good and harm. But, unlike public officials, they never have to take responsibility for the outcomes–intended and unintended–of the policy choices they work to impose in the courts.

The talk concludes with the following:

. . . The fact is, most judges are very grateful for public interest and impact litigation. Cases in which the lawyers can and do make an impact are (by the same token) cases in which the judges can make an impact; and impacts are exercises of influence and power. Judges have little impetus to question or complain when activist lawyers identify a high-visibility issue, search out a client that has at least a nominal interest, and present for adjudication questions of consequence that expand judicial power and influence over hotly debated issues. . . .

So I encourage such work. But in the policy area, we should as a profession consider dispassionately whether some public interest litigation has become an anti-social influence, whether the promotion of social and political agendas in the courts is in any real sense a service to the public, and whether the public interest would be best served by initiatives to abate somewhat the power of judges and lawyers and the legal profession as an interest group.

Full post as published by Law Blog - WSJ.com on October 24, 2008 (boomark / email).