Lost In Translation

Did a federal judge bash pro-bono legal work, or did a reporter misunderstand?

What could be less controversial than lawyers volunteering their services for those in need? Pro-bono work—from the Latin pro bono publico, “for the public good”—is not only a staple of the legal profession but an ethical obligation: the American Bar Association suggests that lawyers devote at least fifty hours per year. Pro-bono lawyers intervene on the behalf of evicted tenants, abused spouses, asylum seekers, and nonprofits, among others. Who could object to that?

Federal judge Dennis Jacobs—or so it seemed. Earlier this month, a debate broke out in legal circles when a local trade paper reported that Jacobs, the chief judge of the U.S. Court of Appeals for the Second Circuit, had dismissed pro-bono work as “antisocial” and “self-serving.” Last week, the controversy swelled when a prominent law professor published a strongly worded reply in The National Law Journal, writing that the remarks were “a slap in the face” and that the judge “should be ashamed of himself.”

Was Jacobs guilty as charged? Or had a careless reporter misconstrued his message? Jacobs gave his talk at the inaugural meeting of the Rochester chapter of the Federalist Society, the conservative and libertarian legal professional association. Here’s how the talk was described (in part) by reporter Elizabeth Stull in The Daily Record, a legal and business publication in Rochester:

About 40 people attended Monday night’s reception at the Hyatt Regency Rochester. Several came to hear Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit; his topic, “Pro Bono for Fun and Profit.”

Pro bono work primarily is an “antisocial” and self-serving activity lawyers use to develop their skills, firms use to recruit and “give solace” to associates, and nonprofits use to further a political agenda, Judge Jacobs argued.

In particular, litigation against the government and government officials and impact litigation are attempts to improperly expand the courts’ reach in legislative matters, the judge said.

“No public good is good for everybody,” Jacobs said.

Could a serious person really take such a dim view of all pro-bono work? Walter Olson, of the Manhattan Institute, writes on the Point of Law blog that he “knew from the very first reports that there was something very ‘off’ about the story.” Mark Obbie, the director of the Carnegie Legal Reporting Program at Syracuse, agrees, writing on the LawBeat blog that his first reaction to the story was that it was “literally unbelievable.”

But Erwin Chemerinsky, a constitutional scholar at Duke who will soon become the first dean of the new law school at the University of California, Irvine, took the story very seriously. In an opinion article published in the October 27 issue of The National Law Journal under the headline “Shame on Dennis Jacobs” (though recently toned down in the online edition to “Pro bono work: Not a self-serving activity”), Chemerinsky wrote:

Dennis Jacobs, the chief judge of the 2d U.S. Circuit Court of Appeals, should be ashamed of himself. In a speech in Rochester, N.Y., on Oct. 6, it was reported that he ridiculed lawyers who do pro bono work. He said that some pro bono work is an “anti-social” and self-serving activity that law firms use to recruit and “give solace” to associates and that nonprofits use to further a political agenda.

As a law professor (and now dean of a new law school), I work hard to encourage my students to use their legal training to make society a better place and to help those who cannot afford legal services. Whatever their field of practice, they should spend some time doing legal work without charging for their time and services.

Implicit in Jacobs’s argument, wrote Chemerinsky, is the assumption “that pro bono work is inherently liberal.” But, in fact, most pro-bono work is ideologically neutral, such as “helping a victim of domestic violence get an essential restraining order or assisting a child with learning disabilities receive an adequate education.” In conclusion, Chemerinsky writes, “I take Jacobs’ words that I have been acting in an ‘anti-social’ and self-serving manner as a slap in the face from a person of enormous power and influence.”

As talk of Chemerinsky’s article animated the legal blogosphere, Judge Jacobs sent the following response to The Wall Street Journal’s law blog: “Dean Chemerinsky’s article was evidently based on a newspaper article of my talk that grossly misstates what I said and think. Neither the National Law Journal nor Dean Chemerinsky have contacted me. I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses.”

On Thursday afternoon, the Federalist Society posted a full transcript of Judge Jacobs’s remarks under the heading “Pro Bono Brouhaha.” Not surprisingly, they proved subtler than reported. Jacobs introduced his talk by saying that he intended his remarks to be “provocative”:

When lawyers gather and judges speak, you can count on hearing something on the subject of pro bono service. It is always praise of all that is done, with encouragement to do more. This evening I am going to articulate a view that you may not have heard: 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—and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting—to confer glamour on their work, and to give solace to overworked law associates. And it has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit.

Jacobs’s argument—that high-profile, pro-bono cases against the government flatter lawyers’ and judges’ egos while usurping lawmakers’ power—is certainly debatable. But it is not as simplistic as it seemed in The Daily Record, which did not adequately distinguish, as Jacobs did, between everyday pro-bono work and so-called “impact litigation.” (Jacobs says that the ordinary sort of pro-bono work is “in a great tradition of American volunteerism.”)

“Some undoubtedly will declare [the Daily Record reporter] a member of the Liberal Media Conspiracy,” writes Mark Obbie, of LawBeat. “But I am willing to bet that the truth about Stull is depressingly less interesting. She simply didn’t grasp the nuance and depth of the judge’s brainy, contrarian comments about the nature of big-time pro bono.” (Stull declined to comment for this article.)

Obbie’s moral for reporters: use a tape recorder, request a written version of prepared remarks, and ask questions.

Meanwhile, Chemerinsky is standing by his first reaction. “I read Judge Jacobs’ speech and believe that the newspaper stories were accurate,” Chemerinsky wrote to me in an e-mail. “At the end, he does acknowledge that some pro-bono work is useful—but the earlier part of the speech makes clear that this is not so if it is against the government or impact litigation. The speech is very strong in criticizing public interest law and impact litigation. I thus believe that the reports of his speech were in context and that my criticism was necessary and appropriate.”

Soon thereafter, in a revised version of this e-mail sent to The Wall Street Journal’s law blog, Chemerinsky raised the stakes: he would be happy to debate Jacobs on the issue in a joint debate sponsored by the Federalist Society and the American Constitution Society, the liberal legal professional association.

A spokesman for Jacobs says that he will decline the invitation.

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Joshua J. Friedman is a former editor of The Atlantic Monthly and Boston Review.