Recently I was describing to a business school friend of mine the thesis behind the OEO legal services program, as articulated by the program's second head, Earl Johnson, Jr.: That lawyers can raise the average income of poor people. My friend laughed out loud.
I did not ask why, but I think I know. An economist would think of average income in terms of wages, and wages in terms of marginal productivity of workers. Can lawyers raise the marginal productivity of poor people? I doubt it. What unique skills do they have in that regard?
Perhaps “income” is the wrong word. Rather than teaching poor people how to fish, as the parable goes, perhaps the thesis is only that lawyers can force others—sometimes the state, sometimes private parties—to give the poor a fish or two, which is better than nothing. Indeed, providing free legal services to help poor people get divorced, arrange child custody, and so on, is a fish of a sort. Maybe not the fish the poor would buy if one gave them money, of course, but perhaps the fish the poor should have, at least according to those lawyers who think access to lawyers is a necessity in modern society.
I thought of this exchange when I saw that my friend and former Skadden compatriot Tom Lininger, a genuinely wonderful and terrifically smart guy, has revived a version of what I will call the utilitarian argument for mandatory pro bono work. His piece, a review of Deborah Rhode's Pro Bono in Principle and Practice, is being blogged at Northwestern L. Rev.'s colloquy.
Tom revives the "monopoly" argument for mandatory pro bono; his version is broader than the more targeted "public assets" claims of Steve Lubet and Cathryn Stewart, 145 U. Pa. L. Rev 1245.
I have to confess I have never seen the appeal of this type of argument. One factual predicate is sound: Poor people need help from lawyers, no doubt. They need all the help they can get: Poverty is horrible.
Another factual predicate is false, though. Lawyers do not have a meaningful monopoly (a point on which Lininger recognizes debate and one which Lubet and Stewart concede).
To begin with, "lawyering" is not a cogent service market. Lawyers do different things, many of which would not be threatened by lower barriers to entry. Wachtell partners doing deals and public defenders or immigration lawyers are all lawyers; they are not in the same market. You could do away with licensing tomorrow and, I would bet, not lower Wachtell's average profits per partner one dime. The marginal entrants would not be increasing the supply of that type of work. Pressure in that market comes from other highly skilled professionals, such as accountants, bankers, consultants, and economists, who can offer substitutes for some things lawyers do.
Even at lower income levels, where there might be a broader market for general-purpose lawyering, there are plenty of indicia of robust competition among lawyers, and thus little reason to believe that there are significant monopoly rents being earned, which one might argue should be paid for with free work for poor people. Probably there is some income-increasing effect from licensing, but loose use of the term “monopoly” almost certainly exaggerates it.
Even if this were not the case, as Lubet and Stewart recognize, the argument from licensing is not unique to lawyers. Lots of professions are licensed, right down to hair-cutters, dog groomers and cabbies. The general monopoly argument would apply to these licensees, too, though I know of know mandatory pro bono advocate who wants the poor to get free cab rides.
Even Lubet and Stewart's argument, which is the most finely honed utilitarian variant I have seen, does not escape the problem fully. They point to confidentiality and privilege as assets lawyers have and which they can trade on, which might produce a premium that one could argue the state should redistribute through in-kind services to the poor. But the prohibition on disclosing or using client confidential information is not unique to lawyers; repeal the rules tomorrow and agency law will impose the same restrictions. That is only a partial response, of course. It does not cover privilege, and it does not account for subsidized policing of those duties by ethics authorities, so Lubet and Stewart still have a point.
If we are seriously concerned with utilitarianism, however, neither their point nor Lininger’s has a valence. The argument from licensing gives no reason to favor redistribution of any income premium over the elimination of licensing and the attorney-client privilege. (I defend such elimination here; a more topical argument may be found in Deborah Cantrell, 73 Fordham L. Rev. 773 (2004).) Rather than advocating coerced service as a remedy to deadweight losses, why not just eliminate the losses?
And that is my real objection to the utilitarian defense of mandatory pro bono. I have a hard time believing that pro bono advocates are really closet Benthamites. Any utilitarian will recoil at the notion that forced transactions maximize utility. How would you establish that point? You do not have even the minimal measure of revealed preference in a bilaterally voluntary transaction as a basis for saying that the transaction is net positive. (That one forced transaction is supposed to offset the effects of a barrier to entry, which precludes some voluntary contracts, makes things worse, not better.) The lack of data is highly likely to be filled in by ideologically oriented wishing or assertions that can never be tested.
In truth, the same can be said for a lot of law and economics writing, so I don't want to be too hard on Lubet and Stewart (who are, after all, right and candid about the main monopoly point and a lot else, too). But for those of us who rely on the voluntariness of interactions to provide some assurance of net gains--indeed, for any utilitarian outside the domain of coordination problems--there should be a presumption against the claim that forced transactions increase net welfare.
More prosaically, any utilitarian would be skeptical of the notion that lawyers can rid the world of poverty, or even take a meaningful whack at it, by lawyering. Impact litigation may be mis-aimed or produce only illusory victories. Any problem with a condition on an entitlement, for example, can be solved in either of two ways, the classic response to opinions such as Goldberg v. Kelly.
Here are two more concrete examples. The first involves the poster case for CRLA in the OEO's part in the war on poverty, Morris v. Williams,
67 Cal.2d 733 (1967). The case is sometimes touted as a victory for poor
people but an important part of ther decision merely favored one subset of poor
people--welfare recipients--over another--the "medically indigent"
(defined as "an
aged or other person who is not currently receiving public assistance,
but whose income and resources . . . are not
sufficient to meet the cost of maintenance and health care or coverage.") The second involves a victory to help
poor people at the expense of extremely poor people, as in the example
of CRLA's handshake deal to help the UFW organize, an effort that
included trying to keep out undocumented laborers from Mexico. Lorenz,
17 St. Louis U. Pub. L. Rev. 295 (1998).
To the extent the utilitarian argument is meant to be a broad one
about poverty in general, I think one has to accept that lawyers are
not going to solve poverty. Lawyering is unlikely to increase the
marginal productivity of poor people and transfer payments depend on
taxes and thus on majoritarian politics. The thesis that lawyers
can solve poverty, or even just raise the average income of poor
people, has had a fair trial, though not as extensive a trial as some
would like, and has not proved out. It faces a continuing structural
barrier in the form of judges whose positions are too precarious, or
whose enforcement powers to slight, to order taxes and see them
collected.
Casework has lower downside because it has lower upside (lower variance in terms of social welfare), but who is to say that the sum of all claims of poor people would, if pressed, increase utility? Are all their claims valid? Presumably not (and certainly not just because they are poor), and the invalid ones create costs that count, too. What is the ratio? Words like "many" and "potentially valid defenses" (Lubet & Stewart 1294 & n.254) don't help very much on the question of net effects.
Are the laws they seek to enforce utility-maximizing? There is a big difference between a "meritorious" or "valid" claim and a claim that increases net welfare rather than transferring money from disfavored A (the landlord, the creditor, etc.) to favored B, a transfer Lubet and Stewart explicitly contemplate in at least some cases (1294-95). Absent a special case such as a holdout or other coordination problem, forced transfers accompanied by costs are highly likely to be net welfare reducing. At a minimum, one would favor fee awards to prevailing parties sufficient to attract lawyers making their own decisions over a uniform policy of mandatory work.
I'll stop here, mostly because I don't think this argument ever has been about utilitarian concepts such as efficiency. (That is why one sees arguments that have no real place in a utilitarian approach, such as Lininger’s claim that pro bono should be mandatory because it is good for lawyers; compared to what? Time spent with their spouse or children? Time spent learning finance, industrial organization theory, or mathematics so they can better use and defend against experts? Presumably the lawyers in question are in the best position to make that choice).
Instead, it seems to me, the mandatory pro bono argument rests on justified moral outrage at the deplorable conditions of the poor, a debatable conviction that because lawyering is what lawyers are good at, it is what poor people need from them, and a further conviction that the advocates are so obviously right the state should coerce others to do what they think best. The rest is framing.
There is nothing wrong with moral rhetoric aimed at changing the preferences of lawyers so they do more to help poor people. Indeed, such efforts at persuasion are indispensible in a heterogenous society such as ours. A change in preferences implies a change in behavior without loss of welfare. But people should be free to follow their own visions to the greatest extent possible, free in particular from coercion by those who think others must think (or at least behave as if they do) like them. That, I believe, is the utilitarian verdict on pro bono.
DM