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The Great Judge Jacobs Pro Bono Dust-Up

Rarely do we see a row that directly implicates a federal circuit chief judge, a law school dean, legal journalists and any number of legal bloggers. But such is the situation following the report by a small New York legal newspaper that 2nd U.S. Circuit Chief Judge Dennis Jacobs, speaking at a Federalist Society event in Rochester, N.Y., described pro bono work as "antisocial" and "self-serving." The report evoked criticism of the judge from some prominent lawyers, doubt from others and denial by Judge Jacobs himself, all leading to the question, What did he really say? Now, we have the answer.

We were among the first wave of blogs to pick up on the story, which was reported in the legal newspaper The Daily Record and then republished on the American Constitution Society Blog. As The Daily Record reported it, Judge Jacobs said in his speech that "pro bono work 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." Following the report, an outraged Erwin Chemerinsky, dean of the new UC Irvine School of Law, wrote in The National Law Journal that Judge Jacobs "should be ashamed of himself."

Chemerinsky's op-ed prompted Judge Jacobs, through a spokesman, to send a message to the Wall Street Journal's Law Blog  in which he said that the newspaper's report of his speech "grossly misstates what I said and think" and that "I support, endorse and solicit pro bono work, and my talk said just that." Jacobs' denial prompted Walter Olson at PointofLaw.com to write that he "knew from the very first reports that there was something very 'off' about the story as it was being retailed," and Mark Obbie at LawBeat to believe that "partisan critics" had pounced on the judge "without thinking skeptically enough about what might actually have been said."

No longer need we speculate about what the judge said or did not say, because The Federalist Society has posted the full transcript of his speech. Unfortunately, even the transcript has failed to settle this dust-up. Obbie, in a follow-up post he titles "Anatomy of a Smear," reads the transcript as proof that the initial news report "wildly misinterpreted" Jacobs' remarks. But Chemerinsky stands by his op-ed, telling the Law Blog, "Having read Judge Jacobs' speech, I believe that the newspaper reports about it were accurate."

As I read the speech, the newspaper's report falls somewhere in the middle ground between right on and way off. The fact is, Jacobs did say what the newspaper said he said:

My point, in a nutshell, is that much of what we call legal work for the public interest is essentially selfserving: 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 glamor 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.

The problem is, that was not all he said. His comments were directed at a particular subcategory of what we call pro bono -- so-called public interest litigation -- not at all pro bono of any kind. Much of what the legal profession calls public interest litigation, he argued, "is purely political, and transcends the interest of the named plaintiffs, who are not clients in any ordinary sense." But he ed his speech with a vow to "encourage the kind of pro bono activity that is an aspect of traditional American volunteerism,open" and he concluded with these words:

To the extent that lawyers act as volunteers for the relief of those who require but cannot afford legal services, lawyers' work is beyond praise. I am grateful (and I think the public should be grateful) to lawyers who serve people and institutions that otherwise would be denied essential services and opportunities. I think of wills for the sick, corporate work for non-profit schools and hospitals, and the representation of pro se litigants whose claims have likely merit."

Obbie at Law Blog suggests that perhaps the reporter who covered Jacobs' speech "simply didn't grasp the nuance and depth of the judge's brainy, contrarian comments about the nature of big-time pro bono."The judge himself, in the speech, described his comments as "provocative." The speech was all of these: nuanced, contrarian and provocative. What it was not, we can now confirm, was a sweeping dismissal of all pro bono.

Posted by Robert J. Ambrogi on October 28, 2008 at 12:54 PM | Permalink | Comments (1)

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