SHAPED BY EDUCATIONAL, PROFESSIONAL AND SOCIAL CRISES:
THE HISTORY OF LAW STUDENT PRO BONO SERVICE
by Cynthia Adcock 
The formal law school pro bono program1 was birthed in 1987 when the faculty of
Tulane Law School, led by Dean John Kramer, instituted a pro bono graduation requirement of
twenty hours. But law student pro bono service is much older. Law students have provided free
legal assistance to the poor for over a hundred years – very often for no credit or pay. The first
recorded volunteer law student group dedicated to helping the poor was a law club at the
University of Pennsylvania, which created a “legal aid dispensary” in 1893 (Reed 1928:217).
“Modern” legal education was less than 20 years old.
Today, there are at least 152 law schools with a formal pro bono program.2 These
programs take a variety of shapes and sizes, are located in a variety of administrative and
curricular programs, and involve a varying percentage of the student body. Despite their
differences, all of these programs enable law students to do pro bono work and emphasize the
professional duty to insure access to legal services by those unable to afford an attorney. Their
common goal is for students to carry a commitment to pro bono into their individual practices.
But are these programs effective? In her essay, infra, Deborah Rhode reminds us of the
continued paucity of pro bono service on the part of the private bar. Given that law school pro
bono programs have existed now for over 20 years (clinical education much longer), why is the
bar not better at meeting the legal needs of the poor? Sure, there are a number of factors that

Associate Professor, Charlotte School of Law. This Article was previously published in substantially the same
form in a collection of essays entitled PRIVATE LAWYERS & THE PUBLIC INTEREST: THE EVOLVING
ROLE OF PRO BONO IN THE LEGAL PROFESSION (Robert Granfield & Lynn Mather eds., 2009).
1
A formal law school pro bono program is defined as an administratively supported program that provides
opportunities for law students to engage in unpaid, non-credit law-related assistance to underrepresented individuals
or causes. For an introduction to law school pro bono programs, see Adcock 2001.
2
This number is as of October 2007. In addition, another eight law schools require every student to participate in a
clinic – most of which provide free legal services to the poor -- prior to graduation. The University of District of
Columbia also requires clinic but is counted in the 152.
1
contribute to the failure of the bar to provide pro bono service. But if, as it appears, law school
pro bono programs are not making significant headway in increasing lawyer pro bono service
after all these years, one cannot help but ask “can they?”
This essay looks for the answer by examining the role that law student pro bono service
has played in legal education. What forms has student pro bono taken? How integral has it
been to legal education? Why “pro bono programs,” separate from the curriculum? What
forces account for the uneven support for law student pro bono service?
The history revealed is one shaped by crises. That is, the flow of expressed concern for
the poor within the legal academy has been directly tied to the existence of a real or perceived
crisis -- a crisis of social unrest, of pedagogical need or of public confidence in lawyers. Law
student pro bono service was perceived as the solution to these crises. The structure was a
different matter. Thus, the history of law student pro bono service is one entangled with the
development of the regulation of the profession and the development of clinical education.
Law schools were not quick to respond in these times of crises. Change required pressure
– internal, external or both. The result has been a mixture of motives for supporting pro bono
service – the desire to serve, to teach and to appease.
The energy created by crises cannot be sustained. When there is a sustained crisis – such
as that of the unmet legal needs of the poor -- fatigue settles in. Purpose and focus can be lost.
Could it be that that law schools suffer from this condition when it comes to teaching their
students the importance of pro bono service to the poor?
The history of law student pro bono service can be divided into three distinct eras, which
form the structure of this essay: 1) community-based service (pre-WWII), 2) cause-based
service (1960’s and 70’s), and 3) ethics-based service (1980 – 2005). And as for 2005 forward,
2
this fourth era of pro bono service is yet to be written. So far, it offers great challenges but also
great hope. As explored in the conclusion of this essay, recent research offers insight for those
law schools committed to increased pro bono service and provides a direction that should prove
fruitful – towards an integrated pro bono curriculum.
I. The Era of Community-Based Public Service (Pre-WWII)
A. Lawyers Seek Respect
In the colonial days, lawyers were greatly distrusted. This distrust stemmed primarily
from two sources: 1) the role lawyers had played in the persecution suffered by the colonists
back in England and 2) the fear that lawyers would stir up disputes and social disharmony in the
struggling new world. (Rhode 2004:48) At least one colony, Virginia, prohibited lawyers from
practicing for a fee (Kaufman 1992:4); several colonies prohibited lawyers from appearing in
court (Smith 1924:6). With these types of constraints, it was almost impossible to make a living
practicing law. The provision of free or reduced fee legal services was more of the rule than the
exception.
As this country grew, its legal needs expanded, and lawyers became a necessary . . . well,
annoyance. With their work tolerated and with minimal qualification requirements, the number
of lawyers rose. Until the early 1900’s, there was little regulation of lawyers, except in the one
area about which the public was most concerned – lawyer’s fees. Even as prominent lawyers
emerged as great leaders, the distrust of the commercial motives of all lawyers persisted.
In 1878, a group of 100 elite lawyers from 21 states, seeking greater control over an
unregulated profession full of “shysters,” gathered in New York (New York Times, May 29
1908). To uphold professional standards, they formed a trade association called the American
Bar Association [ABA] (American Bar Association).
3
The first professional standards were promulgated in 1887 by the state of Alabama. The
goals of the Alabama Code of Ethics were to “articulate clear standards of professional conduct,
to reinforce traditional professional ethos, and to deter behavior that bar leaders deemed
unacceptable.” (Maute 2002:107) In 1908, the ABA incorporated much of the Alabama Code
into its own, creating the first set of ABA model ethical standards--the ABA Canons of Ethics.
The ABA Canons heavily promoted professionalism over commercialism, even evoking an
image in its Preamble of the “future of the Republic” resting on the shoulders of lawyers.
Accordingly, lawyers were cautioned in Canon 12 that “it should never be forgotten that
the profession is a branch of the administration of justice and not merely a money-getting trade.”
Fees were not to be set too high but neither were they to be set too low – underbidding the
competition. With a nod to service to the poor, it was recognized that “a client’s poverty” might
require a reduced fee or “even none at all.” But with explicit emphasis on “special and kindly
consideration” of the “[t]he reasonable requests [for assistance] of brother lawyers, and of their
widows and orphans without ample means. . . .” In short, lawyers should take care of their own.
In addition, Canon 27 prohibited solicitation of business – be it through advertisements or
personal communications -- “not warranted by personal relations.” Such behavior was deemed
unprofessional and intolerable. It was further deemed unprofessional in Canon 28 to “volunteer
advice to bring a lawsuit, except in the rare cases where ties of blood, relationship or trust make
it his duty to do so.” Consequently, a poor man or woman who knew no attorney would need to
be bright enough to recognize a legal problem and bold enough to seek one out.
With these restrictions on underbidding, solicitation and litigation, it was unclear whether
a lawyer could offer to provide free or reduced rate legal services to a stranger (Maute
2002:113). Not until the 1930’s did the ABA reassure lawyers that providing free legal services
4
to the poor was “not ethically objectionable” and served “a very worthwhile purpose and should
be encouraged (ABA Opinion 191, 1939; Opinion 148, 1935).”
Criminal matters were treated differently. The Canons stressed a lawyer’s duties to the
Court, which included the duty to represent a poor criminal defendant when asked to do so by the
Court. The concern reflected here, however, was less about the defendant and more about the
courts’ inherent power to require service without compensation. Though court appointments
were rare (Rhode 2004:51-53), some lawyers scoffed. So, the ABA answered with Canon 4:
“[a] lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any
nontrivial reason.”
When the Canons were adopted, America was overwhelming rural and the legal needs of
the poor went largely unnoticed, except within one’s own small community. However,
community life in America was about to radically change.
B. Law Students Respond to Community Crisis
In 1875, Christopher Columbus Langdell, as Dean of Harvard Law School, introduced
the case-dialogue method of training lawyers. Langdell’s teaching philosophy was that law was
a science and all one needed to know to be a lawyer was contained in printed books, namely
court opinions (Frank 1947:1304). This new method of teaching law had no place for teaching
skills. The fate of learning law by apprenticeship, already falling out of favor, was fatally sealed.
By the early 1900’s, the population of this country was booming, with waves of
immigrants arriving and settling in the urban centers. America for the first time was becoming
more urban than rural, and she was not ready. The plight of the poor was horrid. Progressive
lawyers and philosophers feared social upheaval (Luban 1988:723-727). A few private charities
5
provided legal aid to some of the poor -- mainly immigrants like themselves and the working
poor (Rhode 2004:58-59).
Law students, however, saw legal aid as an opportunity – for service and for learning.
Following the example of the students at the University of Pennsylvania in the 19th century,
students on some law school campuses formed independent legal aid dispensaries. The most
successful of these early pro bono student projects was the Harvard Legal Aid Bureau created by
students in 1913 (Bradway 1930:175). Its stated purposes were “first, to help members of the
community who are too poor to hire a regular attorney in those cases where they need a lawyer’s
services, and, second, to give students the practical education that comes from the experience of
handling real cases (Dudley 1931:692).” Members of the faculty did not supervise the students’
work but were “available for consultation.” The Harvard legal aid model was replicated at
George Washington, 1914; Yale, 1915; and Tennessee, 1916 (Reed 1928:fn3).
Lawyers needed more persuasion. However generous they were in their own
communities, lawyers were not generous with their support of legal aid (Rhode 2004:59-60). In
1919, the bar was shamed for ignoring the legal needs of the poor. Funded by the Carnegie
Foundation, Reginald Huber Smith published the landmark book, Justice For the Poor, a lengthy
study that revealed a pervasive denial of justice for the poor. Its Foreword (xv) issued a call to
lawyers:
[T]he highest obligation of government is to secure justice for those who, because they
are poor and weak and friendless, find it hard to maintain their own rights. This book
shows that we have not been performing that duty very satisfactorily, and that we ought
to bestir ourselves to do better.
. . . . I think the true criticism which we should make upon our own conduct is that we
have been so busy about our individual affairs that we have been slow to appreciate the
changes of conditions which to so great an extent have put justice beyond the reach of the
poor. But we cannot confine ourselves to that criticism much longer; it is time to set our
own house in order. . . .
6
The ABA got the message. At its annual meeting in 1920, the ABA held a symposium
on legal aid work, and the next year added the Special Committee on Legal Aid Work. By 1924,
36 bar associations had taken action in furtherance of legal aid work (Smith 1924:xii). The
National Bar Association [NBA] also emphasized legal aid. In 1940, when the number of
African-American lawyers barely exceeded 1,000 nationwide, the NBA was a leader in pro bono
service, striving to establish "free legal clinics in all cities with a colored population of 5,000 or
more" (National Bar Association).
C. Clinical Education Fills Legal Education Void and Builds on Student Pro Bono
Some faculty and deans vocally opposed the Langdellian model of legal education.
These “legal realists” believed that “students must learn about law as a means to an end rather
than as an end itself.” Accordingly, they promoted the teaching of lawyering skills and
professional values (New York State Judicial Institute 2005: 9). They seized the curricular
opportunities offered by the legal aid and legal dispensary models and began to experiment.
The earliest experimentation was in 1904, when the University of Denver College of Law
created a legal-aid dispensary, through which students received credit for providing legal aid.
The Dispensary had a full-time director, who was a trial lawyer and not a full faculty member. 3
The experiment was abandoned six years later due to its expense (Reed 1928:217).
John Bradway, a professor at the University of Southern California Law School, was
intrigued by the idea of bringing the legal aid office into the law school. His first effort, in 1928,
was to create a six-week experimental clinical program (Bradway 1929:173). Bradway then
moved to Duke University School of Law where in 1931 he created the first full-fledged in-
3
Howard Rosenberg, email message to author, June 17, 2008.
7
house clinical program. His goal was “to improve legal education in the United States, with
objectives in the field of practical training and public service (Blaze 1997: 945).”
By 1939, students at approximately 17 law schools were engaged in legal aid either
through a legal aid society (for credit or for no credit), a student operated legal aid dispensary (no
credit), or a law school legal aid clinic (for credit) (Bradway 1939:181).
Some schools made
clinic (either in-house or external) mandatory. Northwestern University School of Law
(externship model) was the earliest to do so in 1919 (Wigmore 1926:130). By 1929, the
University of Minnesota (externship model) and Southern California (in-house model) also had
mandatory clinic (Bradway 1929-30:173). This early clinical movement was interrupted by
WWII and lost momentum (Grossman 1974:169).
D. Summary of the Era of Community-Based Public Service
The greatest concern of lawyers with influence during Era I was the reputation of the
profession – and for good reason. Lawyers – whether reality or perception – were deemed
untrustworthy. Perhaps this accounts for why the ABA’s first code of ethics showed little
concern about those who could not afford legal services. How to charge clients for services
ethically was a primary concern, not whether clients should be charged. In fact, the regulations
did much more to limit access to lawyers than to expand access for those in need. It took public
shaming before the bar would take any responsibility for assuring justice for the poor.
Law students preceded the bar in responding to the obvious legal needs of the time.
Adopting a model from the medical field, these eager and creative students set up legal
dispensaries for the poor. Unencumbered by prohibitions on the practice of law, law students
literally practiced law, without pay or credit, on the poor.
8
The idea of bringing these legal dispensaries into the law school was a reaction to the
“crisis” which some professors witnessed as legal education moved from the law office to the
university. Their focus was on the educational needs of students to learn by doing. And while
these professors were certainly concerned for the poor, a significant reason for choosing the poor
as clients was to avoid unwelcomed competition with the bar (Bradway 1931-32:908).
By the end of Era I, there was hope that as the bar and law schools strengthened by
ensuring a monopoly on the provision of legal services, they would increase their responsiveness
to the legal needs of the poor. However, the facts were discouraging. Only a small percentage
of the poor were being served, and these clients were generally of the immediate communities of
the lawyers. Also, even as in-house clinics were being born, some were closing because of
financial expense.
II. The Era of Cause-Based Public Service (1960’s and 70’s)
A. External Money Takes Clinical Education to the Next Level
In 1959, the ABA Committee on Legal Aid Clinics identified 35 law schools
“maintaining legal aid clinics and related facilities.”4 Only 15 of these “clinics” gave academic
credit. The remaining 20 were what today we would call pro bono projects. With this data, the
Committee concluded that “the work of the legal aid clinics in member schools is very little
integrated into the law school curriculum (AALS 1959:121-22).” This state of affairs within
legal education, however, would soon change -- thanks to outside funding.
In the late 1950’s, the Ford Foundation was deeply involved in addressing the problems
of juvenile delinquency and urban poverty. In 1958, William Pincus, a program officer at the
Ford Foundation, and Emery Brownell, the executive director of the National Legal Aid
4
Legal aid clinics was broadly defined as “the bringing together of a law student (under supervision) and a real
client with a real problem to be solved (AALS 1957:213).”
9
Association, developed a vision of involving law schools in the fight. To accomplish the vision,
the Ford Foundation made significant funding available for clinical legal education through the
National Council on Legal Clinics, created in 1959. The goal was framed as an educational one
“’designed to discover and lay out new and better methods of educating law students about their
future role as members of a profession.’” By 1965, this project had provided $800,000 to
nineteen law schools for poverty law clinics (Davis 2007:1396). And in 1965, federal funding
became available through Title IX of the Higher Education Act for clinical experiences to serve
“persons who have difficulty gaining access to legal representation (Joy 2003:41).”
By this time, the National Council on Legal Clinics had evolved into the Council on
Legal Education for Professional Responsibility [CLEPR] (Ogilvy & Seibel 2007:7-8). A stated
purpose in creating CLEPR was to align the “resources and prestige of law schools and the
energy and commitment of 1960s law students” with the Office of Economic Opportunity
(OEO), a new “War on Poverty” federal agency that for the first time would provide federal
funds for legal services to the poor (Charn & Selbin 2007:1). As the name suggests, CLEPR’s
emphasis was on professional responsibility education; its tool was support for clinical programs.
In a survey conducted in 1968 and 1969, 86 law schools reported having a legal aid
program. Twenty-nine of these were funded, at least in part, by the OEO (Klein 1969:27-29).
One half of these programs (43) provided no academic credit. These programs were categorized
as law school “funnel” programs, through which student volunteers were sent to existing legal
aid organizations (Ibid., 4-10).
From 1959-1978, the Ford Foundation provided nearly $13 million to more than 100 law
schools for clinical education (Davis 2007:1396-97). From 1978-97, Title IX provided grants of
over $87 million to law school (Joy 2003:41).” This infusion of money dramatically increased
10
the number of attorneys assisting the poor. In 1967, there were 300 federally funded legal aid
programs; in 1971, there were 934 (Eldred & Schoenherr 1993-94:370).
During this period, the nature of the work of poverty lawyers changed. Now specialists,
these lawyers not only represented individuals but began representing causes (such as advocacy
for farmworkers) and played key roles in shaping federal, state and local legislation for the poor.
Legal aid lawyers brought over 200 cases before the Supreme Court and won most of the
decisions that reached the merits – including landmark cases establishing the right to due process
for federal benefits recipients (Rhode 2004:63).
With this new growth area of practice, poverty law was embraced by law schools not
only in the clinic but in the classroom. And as the focus of legal aid lawyers changed, so did that
of poverty law professors. Civil rights efforts shifted to efforts for economic justice, which
became the focus of these courses:
[T]he new courses on poverty law were never intended to stop at teaching about the laws
affecting poor people. Implicit in the very notion of poverty law was the social and
political agenda of ending poverty. (Davis 2007:1391 & 1399)
B. The ABA Articulates Pro Bono Service as Professional Responsibility
The legal profession was also undergoing big changes in the 1960’s and 70’s. The
practice of law looked little like it did in 1908, when its Canons of Ethics were written. With
the call in the 1960’s for social relevance and responsibility (New York State Judicial Institute
2005:11) and a new era of federal legislation defined by the civil rights movement and the War
on Poverty, the Bar realized that lawyer passivity was no longer appropriate (Maute 2002:126).
Accordingly, the ABA engaged in a complete overhaul of the Canons of Ethics, which resulted
in the 1969 Model Code of Professional Responsibility.
11
The Model Code introduced for the first time mandatory disciplinary rules, which
included prohibitions on advertising and group legal services – both of which were helpful to
affordable access to justice. To help counter the unfortunate effect of these prohibitions, the
ABA expressed directly for the first time concern for the poor and strongly urged every lawyer to
help in serving the poor. It suggested an affirmative professional responsibility of service,
stating in Ethical Consideration 2-25:
Historically, the need for legal services of those unable to pay reasonable fees has been
met in part by lawyers who donated their services or accepted court appointments on
behalf of such individuals. The basic responsibility for providing legal services for those
unable to pay ultimately rests upon the individual lawyer, and personal involvement in
the problems of the disadvantaged can be one of the most rewarding experiences in the
life of a lawyer. Every lawyer, regardless of professional prominence or professional
workload, should find time to participate in serving the disadvantaged [footnotes
omitted].
Lengthy footnotes reinforced the need for lawyer public service and its rewards. However, cast
as an Ethical Consideration (which extolled the aspirational role of the lawyer in society), it was
clear that there would be no repercussions for failure to live up to this “basic responsibility.”
By 1972, all but three states had adopted the Code, though not necessarily in its entirety
(Maute, 2002:126). Even so, not much had changed in the bar’s response to the poor. In 1972, a
study on the public interest activities of private lawyers concluded that “‘We have seen too little
evidence of professional as opposed to trade performance by the individual lawyer and no
evidence of serious professional self-regulation toward diverting the profession to the pursuit of
common good – the public interest (Kaufman 1992:15).’”5 The study asserted that public
interest or pro bono work should be a duty for all lawyers and linked this duty to the monopoly
of lawyers on legal services.
5
The study was “The Lawyer, the Public and Professional Responsibility” by F. Raymond Marks.
12
In 1975, the ABA passed a resolution that for the first time defined a lawyer’s pro bono
responsibility. Known as the Montreal Resolution, it resolved that “[I]t is the basic professional
responsibility of each lawyer engaged in the practice of law to provide public interest legal
services . . . .” These services were identified as: poverty law, civil rights law, public rights law,
charitable organization representation, and administration of justice. In 1977, the committee that
sponsored the Montreal Resolution, the Special Committee on Public Interest Practice, issued a
report on implementation, recommending “that state and local bar association adopt guidelines
quantifying the pro bono responsibility and assist lawyers in deciding such issues as monetary
contribution in lieu of services and the appropriate role of bar association in assisting lawyers to
fulfill their responsibility (Ibid).” Despite this significant national activity, lawyers on the local
level still were engaged in little or no pro bono (Lardent 1990:89).
C.
The ABA Turns to Law Schools to Teach Ethics and Professionalism
Prior to the 1970’s, ethics instruction took place in law schools primarily, if at all,
through co-curricular activities such as lecture series by distinguished judges and lawyers. The
ABA and the American Association of Law Schools [AALS] had debated the effectiveness and
necessity of ethics programs in law schools since at least 1929 (Rhode 1992:35-36). Watergate
ended the debate.
The Watergate scandal involved many lawyers – President Richard Nixon, a Duke Law
graduate, and many of his men. For the bar, it was the proverbial straw that broke the camel’s
back. In response to this latest crisis of image, the ABA amended its standards for law school
accreditation in 1974 to require “instruction in the duties and responsibilities of the legal
profession, including the history, goals, and responsibility of the bar and its Code of Professional
13
Responsibility in Law schools.” Law schools were now required to provide ethics instruction,
though any amount would do. Many schools did little (Rhode 1992:39).
Watergate also made it too obvious to ignore that the Model Code had made little
difference in the behavior of lawyers. In 1977, the ABA created the Special Commission on
Professional Standards, chaired by Robert Kutak, to review the Code and to make
recommendations addressing ‘all facets of legal ethics (Maute 2002:129).”
Pro bono service was a hot button issue within the Kutak Commission. The debate
centered on whether it should be mandatory and, if so, whether it should be quantified. Kutak
supported mandatory pro bono. An early draft of the new rule stated that “[a] lawyer shall give
forty hours per year” of legal services to persons of limited means or make an equivalent
financial contribution (Kaufman 1992:16). When word of this proposed language leaked out,
there was significant resistance from the bar. The next draft “required an unspecified amount of
unpaid pro bono legal service, generically identified means by which it could be satisfied, and
called for an annual service report (Maute 2002:133).” The mandatory debate intensified, with
some members of the bar threatening “to abandon the Model Rules project rather than accept the
notion of a public service obligation (Eldred & Schoenherr 1993-94:385).” In the final version of
Rule 6.1, included in the Model Rules of Professional Responsibility enacted in 1983, “shall”
had been changed to “should” and the reporting requirement had been dropped (Kaufman
1992:16):
A lawyer should render public interest legal service. A lawyer may discharge this
responsibility by providing professional services at no fee or a reduced fee to persons of
limited means or to public service or charitable groups or organizations, by service in
activities for improving the law, the legal system or the legal profession, and by financial
support for organizations that provide legal services to persons of limited means.
14
Even as the new Model Rules were promulgated, there was a growing concern that lawyer
professionalism was on the decline. Lawyers were taking the rules more seriously, but “tended
to look at nothing but the rules (ABA Commission on Professionalism 1986:7).” Some
considered it a time of crisis.
In 1984, the ABA responded by creating a Commission on Professionalism. The primary
question presented to the Commision was “what, if anything, can be done to improve both the
reality and the perception of lawyer professionalism (Ibid, 3).” Reminiscent of prior responses,
one recommendation was to “[i]ncrease the participation of lawyers in pro bono activities and
help lawyers recognize their obligation to participate.” The focus this time would include law
schools. Noting that law professors sometimes send the wrong signals to students regarding the
value of pro bono, the Commission recommended that law schools serve as pro bono
clearinghouses which would “service their local communities by matching up attorneys expert in
certain areas to pro bono clients with various needs (Ibid, 47-49).” In July 1986, the ABA House
of Delegates endorsed the Commission’s report, “rededicating itself to the pursuit of ‘principle’
over ‘profit’ and ‘professionalism’ over ‘commercialism (Moore 1987, 774).’”
D. Summary of the Era of Cause-Based Public Service
In the 1960’s and 70’s, the legal profession was experiencing as much upheaval as the
general American populace. The negative reputation of lawyers grew, even as the number of
lawyers helping the poor grew. Poverty law and clinical education gained new respect within
the academy.
What was the impact of this era on the development of law school pro bono? In the
positive column, the injection of money for clinical education transformed the Langdellian
landscape forever. It not only increased for-credit clinical opportunities, it also increased law
15
school supported pro bono efforts. In addition, the changes in the ABA’s ethical code and
accreditation standards set the stage for meaningful discussion of the role of pro bono in the
profession and of the role of law schools in teaching this ethic.
In the negative column, the immense resources that were brought to bear for clinical
education were external to law schools. Clinical education had emerged rapidly and was
dependent on this government and foundation support. Law schools grew comfortable with this
model of external funding for clinics. When funding began to recede, as discussed in greater
detail infra, many law schools did not pick up the tab. The vision of the role of clinics in law
schools was blurry. The term was used to refer to in-house, externships and pro bono projects.
The continuum of costs for these various types did not favor in-house clinics, setting up a
battlefield for a shrinking piece of institutional funding.
Era II began with CLEPR emphasizing professional responsibility education through
clinical education. The era ended with the bar calling upon law schools to serve as pro bono
clearinghouses, a far cry from direct involvement of law schools in the work of poverty law. AT
least, the bar had become more transparent about its self-interest in pro bono service, or as Rhode
discusses in her essay, about the business case for pro bono.
III. The Era of Ethics-Based Public Service (1980’s – 2005)
By the 1970’s, the new cadre of federally-funded poverty lawyers had made great strides
in affecting change to help poor people. But this success came at a price -- a backlash from
governmental entities who wondered why the government was paying lawyers to sue it. Several
governors were outspoken critics of federally funded legal services for the poor, most notably
then-Governor of California Ronald Reagan.
16
In search of greater political insulation for legal aid to the poor, both Congress and thenPresident Nixon conceived of a separate corporation to receive funds from Congress that would
be distributed to local legal services programs. In 1974, President Nixon signed into law a bill
that created the Legal Services Corporation [LSC]. The law prohibited LSC grantees from
lobbing, organizing, and engaging other political activities, but their representation work
continued to expand (National Legal Aid & Defender Association).
This expansion ended with the election of Ronald Reagan as President in 1980. Openly
hostile to federally funded legal services, President Reagan immediately sought elimination of
LSC. Though he was not successful in this campaign, he was successful at crippling it: in 1982,
LSC’s budget was slashed from $321 to $241 million. Just one year later, as described by The
Washington Council of Lawyers,
sixty-one LSC-funded programs reported a loss of thirty percent of their staff attorneys,
many of whom were the most experienced attorneys. Moreover, LSC reported a twentyfive percent decline in the number of legal services offices operating nationwide. (Eldred
& Schoenherr 1993-94:370-71)
And the campaign against LSC was not over. In 1985, the first confirmed LSC Board of
Directors of the Reagan administration took up the mission to further restrict advocacy and to
eliminate funding (Ibid).
In the academic realm, the status of poverty law as a discipline was in steep decline. The
heady days of the 1960’s, with the development of poverty law treatises and law journals, was a
distant memory. Critical legal theory, critical of the “instrumental value in producing social
change,” had taken hold. Poverty law professors were feeling beleaguered (Erlanger & Lessard
1993:200).
17
The shrinking government support of legal services for the poor created a crisis for which
the legal community was not prepared, a crisis that continues to today. Response by the bar and
law schools to this crisis of the growing unmet legal needs of the poor has come in waves.
A. The First Wave Response
The new federal regulations required LSC grantees to directly involve private attorneys
with the delivery of legal services to the poor. With involvement came real world education on
the unmet legal needs of the poor. A new movement was born, one of private attorneys
dedicated to pro bono service. The ABA created the Private Attorney Involvement Project (now
the Center for Pro Bono) to assist these attorneys. The number of pro bono programs increased
from approximately 80 in 1980 to over 500 programs in 1989 (Lardent 1989:2).
Law students responded as well. At many schools, they “launched on-campus funding
campaigns to provide grants . . . to underwrite costs to participate in summer internships in legal
services programs and to provide fellowships for post-graduate research projects (CaudellFeagan 1992:11).” Some of these student-run groups – typically called public interest law
organizations or student funded fellowships -- formed projects dedicated to student pro bono
service, either providing direct assistance to clients or serving as a pro bono clearinghouse. The
first student pro bono project was formed in 1982 by a group of University of Minnesota law
students. Reminiscent of the Harvard Legal Aid Bureau of the early 1900’s, these students
created a non-profit called the Minnesota Justice Foundation to oversee volunteer placements of
law students (Minnesota Justice Foundation).6
As the number of public interest and pro bono student groups increased, so did the
interest in a coordinated “national effort to centralize resources and provide national support for
6
MJF is still going strong today, with chapters at all four Minnesota law schools -- including William Mitchell as
described by Deborah Schmedemann in her essay, infra.
18
existing programs.” In 1986, members from 15 student-run public interest organizations
convened at Harvard Law School and created the National Association of Public Interest Law
[NAPIL].7 Its mission was “to expand legal services to under-represented people and increase
opportunities for law students and graduates to work in the field of public interest (Huizinga
1989, 2).” An early platform of NAPIL was mandatory pro bono for law students.
During the same period at Harvard Law, faculty members expressed frustration with the
legal academy’s growing resistance to the subject of poverty law and expressed a need for
support. An idea for a consortium on poverty law was floated. With funding from the Ford
Foundation, in 1988, the Interuniversity Consortium on Poverty Law [the Consortium] was
formed. Its purpose was "to mobilize, increase and improve the commitment of law school
resources to the critical task of attacking the root causes and tragic effects of poverty and
disadvantage in America." The Consortium first included Harvard, UCLA and Wisconsin, but
quickly expanded to include ten other law schools (Davis 2007:1403).
The Consortium pursued two efforts: the Information Exchange and the Project Group.
The Project Group brought together faculty who had “innovative projects” that connected
scholarship, teaching and advocacy for the poor (Erlanger & Lessard 1993:199-200). Two of
these projects were at Loyola University, New Orleans, and the University of Maryland.
In 1986, the faculty at Loyola University, New Orleans, adopted the first poverty law
course graduation requirement. Rooted in the school’s Jesuit mission (Ibid. fn 18), the required
course was designed with four goals: “to develop student awareness about poor populations and
their legal needs . . . ; to give students personal experience with poverty in their community; to
educate students about current social policies and programs affecting the poor; and to teach the
7
NAPIL is now Equal Justice Works (www.equaljusticeworks.org).
19
students about ways that they, as lawyers,” can address the problem of poverty. It combined
classwork with direct contact with the poor through site visits (Howard & Lessard 1993:206).8
The program was “a model for a bold new beginning for the discipline of poverty law” in law
schools (Failinger 2007:1173).
In Maryland, the Advisory Council to Maryland Legal Services Corporation, chaired by
Representative Benjamin Cardin, was studying the plight of the poor. In 1987, it released a
report with recommendations for addressing the legal needs of the poor, two of which were
directed to law schools: 1) require a clinical experience providing legal services to the poor for
graduation and 2) develop “educational approaches which inculcate the professional value of
responsibility to serve the poor and underrepresented of the state.” The State General Assembly
designated funds for law schools to implement the recommendation. The faculty at the
University of Maryland considered a variety of approaches, including required clinic or pro bono
(Bezdek, 129-30). They settled on a more integrated approach – a required Legal Theory and
Practice [LTP] course linking theory in first year courses to practical experiences with actual
clients.9
B. The Second Wave Response: Birth of the Law School Pro Bono Movement (198693)
8
The requirement was later expanded to include other options for meeting the requirement – including pro bono
service.
9
Today, LTP courses are one way in which students can meet what is called the Cardin requirement. Students can
also meet it by completing a public interest clinic or an externship.
20
In 1989, mandatory pro bono programs were under consideration in North Dakota,
Maryland, Arizona, New York, and Hawaii (Lardent 1989:7). No state bar, however, adopted
mandatory pro bono. The debate moved to law schools. Professional responsibility was
required, so why not pro bono service?
In 1986, Tulane University Law School inducted a new dean, John Kramer, a former
anti-poverty lawyer. In his first interview as Dean, Kramer expressed a desire to require
students to engage in “community service” (Johnson 2006:5-6). This desire was fulfilled in
1987, when he proposed and the faculty passed, a pro bono graduation requirement of 20 hours
of law-related public service (Kramer 1990). This action made Tulane not only the first
American law school to impose a pro bono graduation requirement but the first to have a formal,
institution-wide, pro bono program.
Tulane’s action turned up the heat on the law school pro bono debate. Some followed
Tulane, adopting a mandatory pro bono program. Some followed the model of Loyola and
Maryland, adopting a curriculum-based mandatory service program. Others developed a
voluntary pro bono program.
In April 1989, Florida State University School of Law became the first school to follow
in Tulane’s footsteps, when the faculty voted to require pro bono of all students. This result
marked the first successful student movement for mandatory pro bono. Sounding a familiar
theme, the students stated in their petition “that our future profession is not solely a commercial
one” and called for “the adoption of a reasonable yet meaningful pro bono requirement (NAPIL
1989:3).” The requirement was cast as a tool for teaching professional responsibility (Huizinga
1989:14).
21
Just one month later, the faculty at the University of Pennsylvania Law School, a
participant in the Consortium, adopted a pro bono requirement of 70 hours. The central purpose
was curricular – an augmentation of the professional responsibility requirement.10 Indeed, the
mandatory programs were heralded as innovative curricular integration of actual pro bono work
(Caudell-Feagan 1990:2).
But at some schools, the faculty was clearly not going to embrace mandatory pro bono.
One such school was the University of South Carolina School of Law. The faculty did, however,
want to foster the service ethic of the profession. To this end, the law school pursued and
obtained an IOLTA grant from the SC Bar Foundation in 1989 and become the first law school
to institute a formal voluntary pro bono program (Robinson 1991:960-62).
Nevertheless, student support for mandatory pro bono was gaining momentum nationally.
In 1990, a new national student organization emerged -- Law Students for Pro Bono [LSP]. With
students from 100 of 175 existing law schools, LSPB advocated for pro bono graduation
requirements and organized a national campaign calling for every law student to contribute 50
hours of pro bono a year before graduation. Opining on the movement, the Washington Post in
October 1990 wrote:
A move by law students to make courses in pro-bono law mandatory for a law degree is
the best thing to come off the campuses in almost 20 years.
It may be even better than it looks, in that it could mean that students have come out of
their long snooze and are taking the first tentative steps back to the idealism that seized
them in the early '60s (Law Students).
Similarly, the ABA Law Student Division passed a resolution supporting pro bono graduation
requirements.
10
Memorandum from Howard Lesnick, 1 (May 22, 1989) (on file with author).
22
In 1990-91, students at four law schools acted ahead of their faculties and created their
own school-wide pro bono programs. Students formed Georgetown Outreach at Georgetown
University Law Center (SCLPSR & NAPIL 1991:1), the Pro Bono Recognition Program at Santa
Clara (Santa Clara Law School), Saving Our Society at Chicago-Kent School of Law11 and Seek
Justice at Whittier College of Law (SCLPSR & NAPIL 1991:46). The programs at Santa Clara
and Chicago-Kent were, and still are, administered through the school’s career services office.
The Whittier program was administered through the student organization PILF, with the support
of the Los Angeles County Bar Association (Ibid.) and was later moved into the career services
office. Georgetown created an administratively supported formal pro bono program in 1995,
joining the PBSA national network of offices.
In 1991, the ABA Young Lawyers’ Division passed a resolution calling upon the ABA to
encourage law schools to establish pro bono graduation requirements.12 The ABA Section of
Legal Education and Admissions to the Bar subsequently surveyed law school deans about their
pro bono programs and about the Law Student Division’s resolution. Thirty-seven deans
reported that their schools had pro bono programs, 30 of which were elective. According to the
data provided, however, about half of these programs were externships or clinics. Other
programs listed seemed to be student groups doing pro bono. The deans were overwhelming
opposed to the resolution, including the deans at Tulane and Pennsylvania. Common reasons
given in opposition were the expense involved in requiring pro bono and the belief that each
school should develop its own program as appropriate (ABA Section of Legal Ed, 1991).
11
Michelle Vodnik, email to author, March 27, 2008.
Memorandum from Jeff Smith, Chair, Public Interest Task Force Committee at Northeastern University School of
Law to all faculty, 1 (Sept. 3, 1992) (on file with author).
12
23
From 1990 to 1993, 15 law schools created formal pro bono or public service programs,13
a pro bono program boom not seen since.
13
Law school pro bono programs are categorized as 1) mandatory public service (w/pro bono option), 2) mandatory
pro bono programs, and 3) voluntary pro bono programs. The first category differs from the second in that it allows
public interest work for which students get credit or pay to meet the requirement. There are two models of voluntary
pro bono programs: 1) those characterized primarily by a referral system with coordinator and 2) those
characterized primarily by administrative support for student group projects (Adcock 2001:13). The former often
includes some student groups. The later emphasizes the importance of student organizing (“which requires student
initiation, student implementation and group self-perpetuation”) without sacrificing law school administrative
support (Schoenherr, 7).
24
Law School
Table 1 (Adcock)
Origin and Related Information
Type
NYU
Year
Started
1990
Fordham
1990
Voluntary
(student
group
model)
Touro
1990
Mandatory
Public
Service
Valparaiso
1990
Mandatory
Pro Bono
Louisville
1991
Duke
1991
Mandatory
Pro Bono
Voluntary
(referral
model)
Columbia
1992
Mandatory
Pro Bono
SMU
1992
Mandatory
Voluntary
(referral
system
model)
With funding from the state IOLA, NYU created
Pro Bono Students (PBS). The program was run
through the school’s Root-Tilden-Snow Scholarship
Program (SCLPSR and NAPIL 1991, 10-12).
Well-funded, it expanded within a year to a
statewide network of law school pro bono offices –
PBS NY.
With a different vision of a voluntary program,
Fordham Law created the Public Interest Resource
Center. It became the first pro bono program to be
designed primarily as a clearinghouse for studentinitiated pro bono and community service
programs. PIRC began with three group projects
and now has twenty-one.
The faculty considered implementing a pro bono
graduation requirement but was concerned about
the availability of quality experiences. Instead,
they adopted a “Public Interest Law Perspective
Requirement (SCLPSR and NAPIL 1991, 28).”
Students can meet the requirement by taking a
clinic, by taking a qualifying course (Rights of the
Poor, Racism and American Law, or Disability
Law) and doing 20 hours pro bono, or by doing 40
hours of pro bono service (Touro Law Center).
The Dean proposed and the faculty adopted a 20
hour pro bono requirement (SCLPSR and NAPIL
1991, 36).
The recently hired dean14 proposed and the faculty
adopted a 30 hour pro bono requirement.
Wanting to emphasize that the new pro bono
program was an academic one, Duke made the
coordinator position a part-time contract faculty
position.
Faculty adopted a 40 hour pro bono requirement,
the result of a process begun by a student
proposal.15
An ad hoc faculty/student committee proposed and
14
The Dean, Don Burnett, became Dean at the University of Idaho School of Law in the mid-1990’s. In 1996, that
school became the last prior-existing law school to adopt a mandatory pro bono requirement. (Several new law
schools have come on-line with a mandatory pro bono program.)
15
Memorandum from The Public Interest Activities Committee to the faculty, 1 (Sept. 17, 1991) (on file with
author).
25
Pro Bono
Loyola, LA
1992
Mandatory
Public
Service
Hawaii
1992
Mandatory
Pro Bono
Southern
California
1992
Voluntary
(Referral
Model)
Northeastern
1993
Mandatory
Public
Service
Indiana U,
Indianapolis
1993
Voluntary
(referral
model)
Loyola Chicago
1993
Rutgers-Newark
1993
Voluntary
(referral
model)
Voluntary
the faculty adopted a pro bono requirement of 30
hours, replacing an existing voluntary program run
by the Student Bar Association’s Pro Bono
Committee.
Following the riots after the verdicts in the Rodney
King case, a group of concerned students and
faculty sought a way for the law school to help
their community. The faculty adopted a
mandatory program, which can be met with two
public interest externship credits or 40 hours of pro
bono (Loyola Law School).
A student group called Advocates for Public
Interest Law proposed a pro bono requirement of
60 hours, which the faculty adopted (University of
Hawaii).
The program was housed in the Associate Dean’s
office and run with the assistance of a newly
created position of pro bono coordinator on the
student PILF board, a new staffing model. Though
voluntary, the program sought pledges from
students to complete 35 hours of pro bono,
consistent with the Los Angeles County Bar
Association's pro bono policy.16
After debating for almost two years a Taskforce
proposal for a mandatory program, with ample
opportunity for student feedback, 17 the faculty
adopted the Public Interest Requirement. It can be
met by completing a full-time public interest co-op
(11 weeks at 35 hours per week); taking a law
school clinic; performing 30 hours of pro bono
work; or doing a public interest independent study.
(Equal Justice Works).
The Law School hired a pro bono coordinator and
placed her in the Office of Career Services. It also
adopted the practice of recognizing students who
completed a requisite number of hours of pro bono
service with a notation on their transcript.18
PBS went national in 1993, becoming PBSA, and
its first regional office was here.
With the objective as much on training as on
16
Karen Lash, email to author, June 13, 2008.
Jeff Smith, Coop Director of External Relations/Co-Director of Public Interest Advising, email to author, Mar. 4,
2008.
18
Jonna MacDougall, email to author, March 31, 2008.
17
26
(referral
model)
C.
service, Rutgers joined pro bono with clinical
programs and externships as part of its Lawyering
Program.19
The Third Wave Response: Law Schools Are Pushed to Do More
By 1994, the development of new law school pro bono programs had slowed
dramatically. Only one voluntary program came on line in 1994, a PBSA regional office at Nova
Southeastern.
At some schools, there was a stalemate. At the University of Virginia, in 1992, the
Student Bar Association [SBA] Public Service Committee presented the Dean with “A Proposal
for a Public Service Program,” recommending that a graduation requirement of 20 hours of
legally-related public service be required. The proposal was not passed by the faculty. A
formal, voluntary pro bono program was not adopted by the faculty until 1999.20 In 1993, five
Brooklyn Law School students published a Note in support of mandatory pro bono service,
recommending a “multi-option” approach to provide maximum flexibility (Calderon 1993). The
Law School did not create a formal pro bono program until after 2001. In 1995, the SBA at New
England School of Law called for the creation of a compulsory or aspirational pro bono standard.
A Task Force on Co-Curricular Opportunities was formed. Its Report “recommended that the
school ‘not adopt a mandatory pro bono/public interest requirement at this time.’” Finally, in
2000, the faculty created a Center for Law and Social Responsibility, which includes a “Public
Service Project” (Engler 2001:137).
19
Eve Klothen, Assistant Dean for Pro Bono and Public Interest Programs, Rutgers-Camden School of Law, July
24, 2008.
20
Kimberly Emery, Assistant Dean for Pro Bono and Public Interest, University of Virginia School of Law, June 5,
2008.
27
Unlike the development of law school pro bono programs, the problems for the Legal
Services Corporation had not slowed. Though President Clinton was supportive of a well-funded
legal services program, his influence was greatly diminished with the 1994 congressional
elections and its historical shift from a long-time Democratic Congress to a Republican one. The
new leadership of Congress was committed to elimination of LSC. They failed, but the cost of
survival for LSC was the imposition of sweeping restrictions on the kind of legal work that could
be done by LSC funded offices (National Legal Aid & Defender Association). As a result, the
need for pro bono lawyers only increased in the 1990’s.
Another crisis faced the profession that would add fuel to the law school pro bono engine
– the reemergence of the crisis of professionalism. Once again, lawyers, judges and law
professors were ringing the alarm. One need only look at the titles of books on the legal
profession published in 1993-94 to get a sense of the panic: A Nation Under Lawyers: How the
Crisis in the Legal Profession is Transforming American Society by Mary Ann Glendon, The
Betrayed Profession by Sol Linowitz, and The Lost Lawyer: Failing Ideals of the Legal
Profession by Anthony Kronman. These authors all painted “a picture of cherished ideals
ground to dust by the millstones of modernization (Luban & Millemann 1995:33).”
The pressure mounted on law schools to do more to meet these crises. Pressure and
assistance was provided by three organizations: Pro Bono Students America, the ABA and the
AALS.

Pro Bono Students America
As noted above, in 1993, PBS NY went national and became Pro Bono Students America
[PBSA]. Its stated goals were “to offer students the opportunity to do volunteer legal work, to
provide a means of assisting students in their career choices, to teach students the value of public
28
interest work and encourage a pro bono ethic, and to help underserved communities and
organizations (Chaifetz 1993:1704).” PBSA created regional centers at seven law schools, each
with a director charged with supporting pro bono efforts at law schools in their region. The
network was the first through which law school pro bono coordinators could organize. Its
primary product was its web-based national database of both paid and unpaid public service
opportunities. By 1997, PBSA reported having 75 law schools as members (PBSA 1997:1).

The American Bar Association
In 1993, the ABA took two significant steps to increase pro bono service by lawyers.
First, it amended Rule 6.1 of the Professional Rules of Professional Conduct, setting for the first
time an enumerated aspirational goal of pro bono service for every lawyer of “at least (50) hours
of pro bono publico legal services per year.” The service is to be “substantially” to “persons of
limited means” or to organizations that “address the needs of persons of limited means.”
Also in 1993, the ABA passed a resolution that “strongly” encouraged law schools to
develop pro bono programs. This resolution was a compromise between legal educators and bar
leaders:
Legal educators were fearful that the imposition of a curricular or co-curricular
requirement on law schools would cause the reallocation of resources in ways that might
not be consistent with long standing curricular notions. Representatives from the
profession thought that they had a responsibility to direct the law schools in a manner
beneficial to the profession and the public. In this case, the benefit identified by the
profession was that engaging law students in some form of experiential pro bono activity
would increase the number of attorneys willing and able to perform pro bono work.
(Baillie & Bernstein-Baker 1994:74-75)
In 1996, the ABA institutionalized this resolution. It amended Accreditation Standard
302(e) to provide that “A law school should encourage its students to participate in pro bono
activities and provide opportunities for them to do so.” About this same time, the ABA’s Center
29
for Pro Bono increased its time and resources dedicated to assisting law school start or improve
pro bono programs.21

The Association of American Law Schools
In 1998, Deborah Rhode, Professor at Stanford Law School, became the President of the
AALS. The theme for her year was the professional responsibility of professional schools. In
her speech to the AALS House of Representatives, Rhode connected the then-current
“professionalism crusade” with the “pervasive discontent with legal practice -- both within and
outside the Bar.” She chastised the legal academy for ignoring the problem and for
marginalizing instruction on professionalism, professional responsibility and pro bono in the
curriculum. As to pro bono, she argued that legal educators must do more to “foster a culture of
commitment to public service among future practitioners (AALS 1998:166-8).”
As her presidential initiative, Rhode appointed a Commission on Pro Bono and Public
Service Opportunities “to collect information about how law schools can promote pro bono and
public service initiatives among both faculty and students.” In its report, Learning to Serve, the
Commission found a disappointing low participation of law students in pro bono. Its primary
recommendation to law schools was to:
Make available to all students at least once during their law school careers a wellsupervised law-related pro bono opportunity and either require the students’ participation
or find ways to attract the great majority of students to volunteer (AALS Commission
1999:7).
The Commission members also created a Section of AALS dedicated to Pro Bono and
Public Service Opportunities. They secured funding for a two-year Pro Bono Project and hired
a Director to assist law schools in implementing its recommendations.22
21
Gregory McConnell, then-Director, ABA Center for Pro Bono, letter from to author, Feb. 18, 2000.
22
The author served as Director of the AALS Pro Bono Project for the duration of the grant, 1999-2001.
30
During the term of the Project, the Director visited 90 law schools, encouraging faculty
and administrators to create or expand pro bono programs and gathering best practices. By the
end of the project, 100 law schools were identified as having a formal, administratively
supported, pro bono program offering a variety of volunteer opportunities: 14 had a pro bono
requirement; 12 had a public service requirement; and one had a community service requirement.
Another 73 schools had formal voluntary programs (Adcock 2001:13).
D. Summary of the Era of Ethics-Based Public Service.
In the hundred years from 1883 to 1983, there was a major shift in the perceived role of
law student pro bono. On the eve of the death knell of apprenticeships, pro bono service began
as the sole way for university students to gain real world lawyering experience – first for no
credit and then for credit through clinical courses. Clinical education sought to meld together the
teaching of skills and the teaching about the unmet legal needs of the poor in their communities
and the profession’s ethical responsibility to meet those needs.
With the call in the 1980’s and 90’s for law schools to do more to “instill” the value of
pro bono within law students, the faculty at some schools responded in the way that seemed
logical – the teaching of the ethic of pro bono would be part of the teaching of professional
responsibility and teaching about the justice system. Faculties with this perspective either
integrated pro bono into the required curriculum or developed a separate mandatory program.
Faculty at many schools, however, thought quite differently. Far from viewing pro bono
as a curricular component, many faculty members viewed pro bono service as purely voluntary
charity. Under this perspective, volunteering was a value that could not, or should not, be
taught. These critics – ignoring the role of curriculum requirements -- were often heard to
31
proclaim that “‘mandatory pro bono is an oxymoron,’ and that such requirements impose
ideological conformity with the ‘politically correct’ (Kelleher 1993:966).”
Most faculties gave little thought to the relationship of pro bono programs and clinical
courses. By the 1980’s, external funding for poverty law projects had dried up. Poverty lawyers
within law schools were preoccupied with their battles to secure faculty status and an
institutional home for clinical education.
What thought was given to the relationship of pro bono programs and clinical courses
was often negative. While the ABA pressured law schools to create pro bono programs, it set
forth no standards in the accreditation standards. Thus, the teaching of the pro bono ethic was
not required, did not have to be done by faculty, and did not have to have dedicated resources.
Clinicians feared that pro bono programs would be used to provide clinical education “on the
cheap,” and no doubt in some cases this fear was justified. Pro bono programs could serve
many of the same clients as clinics and were much cheaper because they could be run by nonfaculty. This tension is evidenced in a public statement by NAPIL, in its push for mandatory pro
bono programs, stressing that these pro bono programs should “supplement, not diminish, the
clinical programs (Legal Times, Oct 29, 1990).”
As the number of pro bono programs increased, their distance from the curriculum only
grew. A common perception by many law students and faculty was that pro bono was for the
do-gooders, the public interest students. Indeed, at more than a few law schools, there was a loss
of distinction between pro bono service and public interest careers, often with the later
swallowing the former. The placement of pro bono in career services offices only added to this
confusion.
32
IV.
CONCLUSION: THE ERA OF CURRICULUM-BASED PRO BONO SERVICE
We are now at the beginning of the fourth era of public service in legal education. Its
start is marked in 2005 by the ABA adoption of Accreditation Standard 302(b)(2) requiring law
schools to “offer substantial opportunities for student participation in pro bono activities.” The
move of pro bono opportunities from the “should encourage” section of Standard 302 to the
required curriculum section is an extraordinary step long in coming. Now, every law school
must consider whether they meet the standard. The application and enforcement of the standard
is yet to be determined. But, in its first interpretation of the standard, the ABA resisted efforts to
allow clinical opportunities alone to meet the standard: “Standard 302(b)(2) does not preclude
the inclusion of credit-granting activities within a law school's overall program of pro bono
opportunities so long as law-related non-credit bearing initiatives are also part of that program
(ABA Standing Committee on Pro Bono & Pro Service).”
This era is already being shaped by crises: the high cost of a legal education and the
growing criticism of how law schools are educating – or not educating – law students to be
lawyers. The recommended responses to the later crisis hold promise for improving the success
of law school pro bono efforts.
The crisis of legal education instruction is described in two recent reports that assess the
current outcomes of legal education – Educating Lawyers: Preparation for the Profession of Law
published by the Carnegie Foundation and Best Practices for Legal Education: a Vision and a
Road Map published by the Clinical Legal Educator’s Association. Both reports conclude that
the typical law school curriculum teaches students how to think like a lawyer but not how to be a
lawyer. Specifically, law schools are giving only casual attention to teaching students “how to
use legal thinking in the complexity of actual law practice” and “fail to complement the focus on
33
skill in legal analyses with effective support” for developing ethical and social skills (Sullivan
2007:188). Ethical skills include the understanding of why and how to engage in pro bono
service.
Law schools have been operating on the reasonable assumption that law students who do
pro bono in law school will do pro bono upon graduation. Faculties have held on to this
assumption without assessing what students in their pro bono programs are learning about
service to the poor and without confronting the strong counter-forces – both inside and outside
the academy – that devalue pro bono service.
Recent research provides helpful information for evaluating this assumption. Deborah
Rhode surveyed graduates of several schools with voluntary and mandatory pro bono programs.
She discovered that there was no correlation between whether pro bono was voluntary or
mandatory at a graduate’s law school and whether that graduate actually engaged in pro bono
service. Experiences mattered; in which direction depended on whether law school influences
were positive or negative.
Positive experiences can be voluntary or mandatory, for credit or not for credit.
Mandatory programs have an advantage not only because more students have pro bono
experiences but because they convey a message that the institution views pro bono service as
important. Credit-bearing clinical experiences can be as effective, if not more so, than pro bono
experiences (Rhode 2005:156-60). Ultimately, Rhode’s research reveals that positive pro bono
experiences require resources – monetary but also institutional resources, such as visible support
and promotion by faculty. They also require that “the value of pro bono service . . . be reflected
and reinforced throughout the law school experience in both curricular coverage and resource
priorities (Ibid. 165).”
34
Robert Granfield surveyed graduates from three law schools with mandatory pro bono
programs. His findings were consistent with those of Rhode. Graduates generally found their
law school pro bono experiences to be valuable, but there was no significant increase in pro bono
involvement by these attorneys than those coming from voluntary programs (Granfield
2007:1411). The lawyers were “critical of the lack of integration of their pro bono experiences
into other law school activities, particularly their classes. . . . (Ibid., 1405)“ Granfield concludes
that “[f]or the law school pro bono movement to have an impact, the pro bono experiences of law
student must be better integrated into the general law school curriculum (Ibid. 1412).”
Deborah Schmedmann’s research into the outcomes of her school’s voluntary pro bono
program, discussed in her essay infra, sheds light into why curriculum-based experiences can
have a more profound and lasting effect on law students. The features of the program that
correlated with increased pro bono participation after graduation proved to include “discussion of
broad social issues, and reflections on one’s reactions.” A possible conclusion, Schmedmann
suggests, is that “hard thinking may address a major issue that can dampen the impulse to help:
the tendency to derogate the person in need.” Such “hard thinking” is characteristic of
curriculum-based service to the poor, such as externship and in-house clinical experiences.
What is the “take-away” from this research for schools serious about producing graduates
who engage in pro bono? Pro bono service alone cannot be relied upon to achieve the desired
result. Law schools must teach the value of pro bono service and its complexities as they teach
other skills and values. Students must engage the text, which is the fieldwork. Thus, pro bono
service must be a part of the curriculum. This conclusion is supported by the recommendations
of the Carnegie and CLEA reports: that law schools should integrate throughout the three years
of education legal doctrine and analysis, practical skills training, and the exploration and
35
assumption of the identity and values of the profession (Sullivan 2007:191, 194; Stuckey 2007:89).
Of the some 152 law schools with formal pro bono programs today, 19 have a pro bono
requirement; six have a public service requirement (with a pro bono option); four have a
community service requirement (with a pro bono option); and 123 have a voluntary program.
This number represents an overwhelming majority of law schools, but few of these programs
have any ties to the curriculum.
If law schools are serious about producing graduates who will take on the access to
justice crisis, they cannot let this moment of change in legal education go by without significant
adjustment in pro bono education. Pro bono programs must no longer be set apart from the
curriculum where they sometimes exist as something to be checked off on a survey or to appease
those who would engage in public service in any case. Rather, pro bono service must be taught
as part of the professional responsibility and identity curriculum.
The concept is not new but it is ripe. Integrate! A law school’s pro bono program
should be a pro bono curriculum. This curriculum should 1) engage students throughout all three
years of law schools, 2) have classroom components, experiential learning components and cocurricular components, 3) and progressively build as the students obtain a clearer understanding
of their identity and purpose as lawyers. Substantively, the curriculum should teach students
about the obstacles that prevent justice for all, the lawyer’s responsibility to address these
obstacles, the range of benefits pro bono service brings, and the steps each student can take to
find their best pro bono fit.
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