The United States aspires to provide “equal justice under law.” But in practice the nation often falls far short. One way to narrow the gap is to encourage more pro bono work, argues Deborah L. Rhode. In her new book, Pro Bono in Principle and in Practice (Stanford University Press, 2005), Rhode explores why so many lawyers fail to make significant pro bono contributions and suggests strategies to increase participation.

Few issues are more central to the American public and more peripheral to legal education than access to justice. Equal justice under law is an ideal exalted in law schools’ commencement rhetoric and marginalized in their curricula. Pro bono service is embraced in principle but widely ignored in practice.

The gap between professional ideals and educational priorities emerged clearly in my recent survey of some 3,000 graduates of six law schools with different pro bono policies: the University of Chicago Law School, Fordham Law School, Northwestern University School of Law, the University of Pennsylvania Law School, Tulane University Law School, and Yale Law School. One goal of the study was to determine what legal education was doing, or should be doing, to make future practitioners aware of the public’s unmet legal needs and the profession’s duty to respond.

The survey’s findings speak for themselves. Only 1 percent of the sample reported that pro bono issues received coverage in orientation programs or professional responsibility courses. Only 3 percent of graduates observed visible faculty support for pro bono service, or felt that their schools provided adequate clinical opportunities for public interest work.

Token Requirements

Other national surveys reflect similar inadequacies. According to the most recent data from the Association of American Law Schools (AALS), only one-fifth of law schools require pro bono service of students, and many of the hourly commitments required are modest: 20 to 30 hours spread over three years. About half of all schools provide formal administrative support for voluntary programs. However, according to administrators of such programs surveyed by the AALS Commission on Pro Bono and Public Service Opportunities, only about one-quarter to one-third of the students at their schools participated, and average time commitments were quite limited. Some student involvement was at token levels and seemed intended primarily as resume padding.

Accordingly, the commission concluded that the majority of students graduated without pro bono legal work as part of their educational experience. Although some schools have recently strengthened their pro bono programs, no evidence suggests that voluntary student involvement rates have changed dramatically. Most schools remain a considerable distance from meeting the AALS commission recommendation that every institution “make available to all students at least once during their law school careers a well-supervised law-related pro bono opportunity and either require the students’ participation or find ways to attract the great majority of students to volunteer.”

Quantitative information on faculty pro bono service is unavailable, but the AALS commission findings suggest room for improvement here as well. Few schools require contributions by faculty, fewer still impose substantial or specific levels, and none specify sanctions for noncompliance. In the AALS commission survey, only half of administrators agreed that “many” faculty at their schools were providing “good role models to the students by engaging in uncompensated pro bono service themselves.” Those administrators often added that many faculty were not.

Yet improving pro bono programs does not appear to be a priority at most schools. About two-thirds of deans responding to the AALS commission survey expressed satisfaction with the level of pro bono participation by students and faculty at their law schools. Given the limited number of students involved at most institutions and the inadequate role of faculty, so much satisfaction is itself unsatisfying.

Educational Value

We can and must do better. During the formative stages of their professional identity, future lawyers need to develop the skills and values that will sustain commitments to public service. Moreover, pro bono placements have independent educational value. Like other forms of experiential learning, participation in public service helps bridge the gap between theory and practice and enriches understanding of how law relates to life. This involvement can provide valuable skills training as well as experience in working with and for individuals from diverse racial, ethnic, and socio-economic backgrounds. Such work may also offer practical benefits such as career information, contacts, and job references. Aid to clients of limited means exposes both students and faculty to the urgency of unmet needs and to the capacities and constraints of law in addressing social problems. Positive experiences may, in turn, encourage more graduates to pressure potential employers for significant pro bono opportunities.

For law schools, pro bono programs can prove beneficial in several respects apart from their educational value for students. Successful projects contribute to law school efforts in recruitment, public relations, and development. Individual faculty can profit as well from community contacts, and from opportunities to enrich their research and teaching. The absence of well-supported pro bono programs represents a missed opportunity for both the profession and the public.

Increase Accountability

How, then, can we make access to justice and pro bono service a higher educational priority? One strategy is to increase law school accountability. Although ABA accreditation standards require schools to provide appropriate pro bono service opportunities for students and to encourage service by faculty, many institutions neither keep nor disclose specific information concerning participation rates. Such information, or compliance with minimum standards, could be required as part of the accreditation process, or as a condition for AALS membership. Schools that meet best practice standards could also be given recognition in publications of the AALS and ABA, as well as in national rankings.

Such practices could include adequate pro bono policies and resources, and integration of materials on access to justice and public service responsibilities in the core curriculum. Law school placement offices could also require legal employers to provide more information about their own pro bono programs and participation rates.

In an academic universe increasingly driven by competitive rankings and economic constraints, it is all too easy for legal educators to lose sight of their broader social mission. One of their most crucial functions is to force focus on the way that the law functions, or fails to function, for the have-nots. America prides itself on a commitment to the rule of law, but prices it out of reach for the vast majority of citizens. Our Constitution guarantees “effective assistance of counsel” in criminal cases, but what can satisfy that standard is a national disgrace. Court-appointed lawyers for the poor are not required to have any experience or expertise in criminal defense; they do not even have to be awake. Convictions have been upheld for cases in which attorneys were dozing, drunk, on drugs, or parking their cars during key parts of the prosecution’s case.

In civil matters, the law is least available to those who need it most. Bar estimates consistently find that more than four-fifths of the legal needs of the poor remain unmet. In principle, America is deeply committed to individual rights. In practice, few of its residents can afford to enforce them.

It is a shameful irony that the nation with the world’s highest concentration of lawyers has one of the least adequate systems of legal aid for the poor. It is more shameful still that the problems occupy so little attention in the legal academy’s curricular and research agendas. If we want a world in which equal justice is more than a commencement platitude, law schools must do more to match aspirational principles with educational priorities.