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NY Judge's Remarks Cause Stir Over Goal of Pro Bono Work

New York Lawyer
October 31, 2008

By Mark Hamblett
New York Law Journal

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Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit raised some hackles earlier this month with a speech on pro bono lawyering at a Federalist Society dinner in Rochester.

The Oct. 6 speech, entitled "Pro Bono for Fun and Profit," promised at the outset to be "unusually provocative" and the judge said straight away, "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."

Judge Jacobs cited examples where litigation against governments and officials had unintended consequences. He criticized "so-called impact litigation" as overtly political and divorced from the requirements of standing. In one case, he said, attorneys at the Brennan Center for Justice at New York University School of Law challenging the legal services statute illustrated "a mechanism that is often in the shadows, and showed how public interest litigation promotes political interests of lawyers and activists, altogether apart from any felt need by clients, who are marginalized or rendered superfluous altogether."

Judge Jacobs also went out of his way to appreciate "lawyers who serve people and institutions that otherwise would be denied essential services and opportunities" and praised pro bono work for providing services in the "great tradition of American volunteerism."

The speech drew some heated reaction, with Dean Erwin Chemerinsky of the University of California, Irvine School of Law, telling the National Law Journal that Judge Jacobs should be "ashamed of himself." Judge Jacobs later told a law blog that the National Law Journal article "grossly misstates what I said and think," adding later, "I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses."

What Do You Think?

The New York Law Journal is interested in your reaction to Judge Jacobs' speech and Dean Chemerinsky's response. E-mail us your comments.

Judge Jacobs declined to be interviewed when called on the matter, but said he was satisfied to have the full text of the speech published.

Daniel L. Greenberg, former President of the Legal Aid Society and now special counsel at Schulte Roth & Zabel, where he heads the firm's pro bono program, had his own reaction to the speech.

"It's ironic that a federal judge misunderstands that a pro bono lawyer prevails only after the other side has presented all of its facts, so to rail against the bringing of a lawsuit just strikes me as kind of odd," Mr. Greenberg said.

Mr. Greenberg was amused by the notion of powerful pro bono attorneys overwhelming government lawyers, saying, "It just doesn't reflect the reality of what is happening."

He added, "It's not incorrect to say that public interest as a category sometimes is broad in terms of the entire public's interest - by definition, there will always be somebody whose ox is gored. I've been doing this for 30 years and I've only had one case where everyone in the firm was pleased."