Law schools working to provide students with substantial pro bono opportunities may look beyond traditional public interest firms, legal services providers, or governmental agencies. The idea of allowing students to assist in representing pro bono clients at private firms is appealing. What a great way to encourage and expand the pro bono efforts of the local bar, while helping students develop professionalism and an understanding of a lawyer’s responsibility to the community! Typically, the bench and bar love the idea. Such programs could provide much-needed legal services to persons of limited means, while reinforcing and modeling the importance of pro bono legal service.
But among the challenges to creating these programs at for-profit firms is the need to clearly distinguish such arrangements from an employment relationship. Similar issues arise when law schools explore the possibility of field placement programs at for-profit firms. Cautious directors of field placement and pro bono programs have been watching these issues develop, as the U.S. Department of Labor and the ABA have traded correspondence in an effort to provide clarity.
Recent federal court decisions have cast doubt on whether the DOL’s interpretation of the issue will be followed. In Schumann v. Collier Anesthesia, the Eleventh Circuit sided with a prior ruling by the Second Circuit, putting aside some of the concerns of the DOL. As reported in the National Law Journal:
On September 11, 2015, the Eleventh Circuit became the first appellate court to address the standard for lawful unpaid internships since the Second Circuit’s ruling in Glatt et al. v. Fox Searchlight Pictures, Inc. et al. The new decision adopts the Glatt test and reasoning wholesale, and provides helpful guidance on applying the Glatt factors. The case also strengthens the trend away from relying on the DOL’s Fact Sheet 71, which purports to provide restrictive guidance on unpaid internships. ….
Echoing the Second Circuit in Glatt, the Eleventh Circuit disagreed with the SRNAs and rejected the DOL’s six-factor test. As a threshold matter, the court noted that because the six-factor test is not a regulation it is only due deference “proportional to its power to persuade.” The court “[did] not find it persuasive.”
Does this change anything? Now what?
We want to provide opportunities for students to participate in well-structured field placement programs and for them to engage in introductory pro bono work. Private firms are perhaps not the best place for this, but many law schools need to see whether somehow it can be made to work – serving the educational needs of the students while improving the provision of pro bono legal services.
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