Eric M. Fink, " No Money, Mo’ Problems: Why Unpaid Law Firm Internships are Illegal & What to Do about It"

Article. Abstract:

Unpaid internships for law students appear to be on the rise in law firms, as in other sectors of the economy. I argue that such unpaid internships are illegal under the Fair Labor Standards Act, and raise ethical questions under the Model Rules of Professional Conduct. Moreover, the practice of law firms offering unpaid internships in lieu of paid employment substantially harms law students and law school graduates, who face an increasingly tight market for paid legal employment.

While law students collectively have an interest in ending this illegal and exploitative practice, they have a disincentive against taking action themselves, lest they hurt their prospects in the already perilous postgraduate job market. To address this collective action problem, I propose a three-pronged institutional response.

First, the U.S. Department of Labor should investigate the practice of law firms using unpaid student interns, and take legal action against FLSA violators. Second, state bar authorities should investigate and take disciplinary action against lawyers and firms whose practices regarding unpaid law student interns violate ethics rules. Finally, the American Bar Association and the American Association of Law Schools should educate lawyers and law schools about the legal and ethical problems with unpaid private law firm internships, and adopt and enforce standards to discourage the practice.

[posted by John Steele]

Comments

[Doug Richmond]

I claim no FLSA expertise, but his professional reponsibility arguments are a reach.

[John Steele]

Doug, I had received some feelers from people who were willing to be unpaid interns but after looking into it I decided that I would do it only if the student was receiving educational credit from a real school. (Which, as I understand it, makes the arrangement lawful, at least in California. Note: IANYL!) I have been told that it's become a common practice to simply declare that it's an unpaid internship and have young lawyers and law students work for free. As I understand it, judges and prosecutors offices are offering similar arrangements, even where school credit is not being earned. That's what interested me most about the article.

[Victoria Pynchon]

Immoral illegal unethical - see @paygeny and pledge at http://about.me/PayGenY

[John Steele]

Victoria, do you have any information about how it's playing out in the legal field in particular? (And, just to be clear, I was also contacted by a local college looking to place externs and they informed me of the same conditions that your website sets out -- conditions that I would meet if I were ever to host an intern.)

[Doug Richmond]

I expect that there is a fair amount of exploitation going on. Consider, for example, the many "Special Assistant United States Attorney" positions created in almost every district in which young lawyers work 1-2 years at no salary and with no guarantee of permanent employment thereafter. At least those positions have some small chance of paying off for their occupants--unlike the overwhelming majority of unpaid internships filled by students.

[John Steele]

Doug, there was also a judge who advertised for a similar position and added a proviso that it would be considered a moral obligation for the clerk to stay one year even if the clerk received an offer for a paying job somewhere else.

"A judge searches for free labor"

http://www.salon.com/2012/11/21/a_judge_searches_for_free_labor/

[Eric Fink]

I'm grateful to John for posting the link to my piece. I was prompted to write it after several of my own students asked me about the issue, having been offered unpaid summer internships at private firms.

While I think the illegality under the FLSA is pretty clear, I actually agree with Doug Richmond that the PR argument is more debatable. My interest in looking at this as a PR issue is primarily as a way of finding another angle (apart from FLSA suits, which, as I note in the piece, the affected students are deterred from bringing for fear it will turn off other prospective employers) from which to remedy the problem. Since the piece is still in the editing process at USF Law Review, I will take the opportunity to flesh out that part of the argument further.

[Eric Fink]

One quick follow-up. In the case of prosecutors' offices, courts, and the like, the legal issue is different, because the FLSA does permit unpaid volunteers at government agencies (and also at private non-profits). Also, for those who are licensed attorneys engaged in the practice of law (which presumably includes the SAUSAs, and possibly judicial clerks), regulations under the FLSA establish a per se exemption.

This is why I limit the scope of my piece to law students working at private law firms. Though, regarding the broader question of exploitation, there may not be much difference as among the private for-profit, private non-profit, and public sectors, nor as between law student interns and unpaid licensed attorneys.

[John Steele]

Eric, thanks, that clarifies a lot of the issues for me.

[Milan]

The profession would be wise to take a harder look at this issue. There is a world of difference between a truly educational legal internship (for which a law school might provide credit) and an unpaid legal job. Canada, unlike the United States, requires articling before admission to the Bar, but articling students are still paid.

I defer to Professor Fink's analysis of FLSA, but in my view the practice of offering unpaid internships to law students and young lawyers to perform legal work should be condemned regardless of whom is doing the hiring.

In terms of the Model Rules component of the article, I think 8.4(d) would form a stronger basis for discipline than the other provisions referenced in Professor Fink's article.

[Doug Richmond]

A couple of points. First, it seems to me that there is an enormous difference between (1) a lawyer or judge who offers an internship that pays nothing because she has no money in her budget to pay a law clerk, but is willing to help the intern seek meaningful employment upon completion of the internship; and (2) a lawyer or judge who has the funds to pay a clerk but chooses to exploit the market. (The judge to whom John refers in an earlier post [imposing a "moral obligation" of minimal service] is a nitwit of the first order.) Second, with respect to Rule 8.4(d), that will also be a reach in many jurisdictions. It will certainly be inapplicable in any jurisdiction that links the rule to litigation conduct. As for those states that interpret conduct prejudicial to the administration of justice as meaning conduct that brings the legal profession into disrepute, see, e.g., Att'y Grievance Comm'n of Md. v. Goodman, 43 A.3d 988, 995 (Md. 2012), the argument for violation may be stronger, but it still isn't strong.

[Victoria Pynchon]

The internship issue is being held in Canadian legal circles around the "articling" requirement. Here's the expert on the issue in Canada who is writing his LL.M dissertation on unpaid internships. http://www.youthandwork.ca/p/about-me.html I was moved to start @paygeny after speaking to law students in Malibu on negotiation. Found that none of them even questioned whether they should be working for free. One student said her "employer" (who wasn't paying her) was billing her time out at $140/hr. Just thievery. He might as well have broken into her house and stolen her flat screen TV. I've collected my Forbes posts on Pinterest along with some other materials here:http://pinterest.com/victoriapynchon/paygeny/. Those interested, follow http://twitter.com/PayGenY and "like" our Facebook PayGenY page here http://www.facebook.com/pages/PayGenY/493837943982409