Public Service: An Obligation and Opportunity for Lawyers
Chair Mary Jo White
Association of American Law Schools Annual Meeting, Showcase Speaker Program, Washington D.C.
Jan. 3, 2015
Thank you, for that excellent introduction.
I am truly honored to have been asked to be the inaugural speaker in your Showcase Speaker Program. This is an impressive forum for a serious discussion of the most important issues affecting law schools and the legal profession. And the theme of this year’s annual meeting – “Legal Education at the Crossroads” – is an apt description of the critical juncture we are facing in 2015.
Many of the challenges confronting law schools today are well-known. Enrollment of first-year law students has not been this low since 1973, the year before I graduated from law school. And while the job market for law school graduates has improved over the last few years, the financial crisis resulted in fundamental structural and market changes to more than just our financial system. There have been lasting changes to the legal job market that may, in the long-run, affect the educational choices of college graduates and the economic models of many of our law schools. I know you are studying these changes carefully and strategizing for the “new normal” and the financial challenges that come with it – for both students and your institutions.
One positive by-product of the market changes, however, has been the steady, perhaps slightly increased, number of recent law graduates employed in the public and public interest sectors. And the graduates going into public service roles are increasingly subsidized in some fashion by the law schools -- indeed, about a quarter of such jobs are supported by law school grants. This is a far cry from what was happening when I graduated from Columbia Law School in 1974. At that time, it seemed like the vast majority of students exclusively sought employment in large law firms. There were no clinical programs to speak of, let alone financial subsidies and loan forgiveness programs to support public interest work. Those changes are very good ones -- very good for students, the legal profession and society. I think we would all like to see these programs, and the opportunities that come with them, expand in the years to come.
My remarks tonight are inspired by the public service “silver lining” that is emerging in the current environment. What I will talk about is the overarching public service obligation of lawyers and the opportunities and benefits that public service jobs provide. As an initial matter, I believe that, as lawyers, we should broaden our perspective on our public service obligation and deepen our commitment to public service, irrespective of the particular job we currently hold. More of us should consider careers in public service or at least aim to work in the public sector at various stages of our professional lives. And, more broadly, we should view our public service obligation as a long-term, continuous responsibility that guides how we conduct ourselves – whether working in the public or private sectors.
I will begin, as lawyers often do, by defining some terms. What do I mean, in the broadest sense, by the “public service obligation” of lawyers? I will offer my view that the public service obligation is something that should permeate everything we do as lawyers. Next, I will discuss some of the unique and significant benefits of public service. And, finally, I will encourage you in the legal academy to continue teaching and emphasizing the importance of the lawyer’s public service obligation and its benefits, to raise the bar for lawyer performance and to inspire an interest in a broader set of career choices for your students.
A Lawyer’s Public Service Obligation
Law is a service business, with the emphasis on service. Our responsibilities as lawyers indeed center on our ethical obligations related to the services we provide to our clients, to the profession and to the rule of law. And, as Ben Heineman, William Lee and David Wilkins recently wrote in their very thoughtful piece on “Lawyers as Professionals and Citizens,” there is a fourth ethical responsibility or dimension for lawyers that requires us to generally provide our services “in the public interest” in furtherance of a “safe, fair and just society.”
To be sure, some lawyers have “pure” public service and public interest jobs, whether in government agencies, the military, the legal academy, public interest organizations, or non-profit work of various kinds. In those positions, the duty of public service is the essence of the job description. But this fourth ethical responsibility of public service for lawyers is by no means limited to those of us in public service roles. It applies to all lawyers throughout their careers, including private sector lawyers advising private sector clients. And it is an obligation that extends far beyond our still aspirational duty to provide 50 hours of pro bono legal services each year.
As Roscoe Pound, the distinguished former Dean of Harvard Law School, so eloquently captured it, private sector lawyers also have an obligation to practice law “in the spirit of public service.” For me, that means that we are obligated to ask our clients the “should” or “ought to” questions and include those considerations in the advice we give. Or, as Archibald Cox put it in terms we can all understand – lawyers should be willing to say to clients, “Yes, the law lets you do that, but don’t do it. It’s a rotten thing to do.” Cox’s point is obviously that our role as lawyers transcends the technical -- it requires us to consider the public’s welfare in addition to the interests of a private client. That is how it should be.
Perhaps if lawyers were better at fulfilling this aspect of our public service obligation, we could elevate our collective reputation, and finally make the list of most admired professions -- a list where teachers and members of our military always rightfully do well. Lawyers, on the other hand, tend to trail way behind, sometimes barely ahead of telemarketers and lobbyists.
But this was not always the case. Lawyers, for example, played a central role in the founding of our nation and enshrining the values that guide our country today. Thomas Jefferson was a lawyer, as was Abraham Lincoln. There are more modern day heroes too. A number from my field, for example, have been singled out, including former SEC Chairman Manny Cohen – who rose from staff member to Chairman and brought about changes to allow SEC staff lawyers to provide pro bono legal services – and former Director of Corporation Finance, Linda Quinn, who was both a giant of the securities bar and the first woman to lead the Division. And there are, of course, other heroes from our ranks: Justices Thurgood Marshall, Sandra Day O’Connor and Ruth Bader Ginsberg. Their careers, before they joined the Court, centered on championing the civil rights of minorities and women, as well as a commitment to legal education and other public service.
A 2013 survey by the Pew Research Center’s Religion and Public Life Project, however, paints a bleak picture of how our profession as a whole is regarded today. It asked how much certain professions contribute to society’s well-being.
Not surprisingly, 78% said members of the military contribute “a lot,” and 72% said teachers do as well. Lawyers, on the other hand, got a disappointing 18% endorsement, with 34% of those surveyed saying that lawyers contribute very little or nothing to society. That 34% hurts. Our image as a profession clearly needs work.
Public service though is about much more than image. It is about lawyers being good citizens as well as knowledgeable, well-trained practitioners. Personally, it has been one of the most satisfying aspects of my career, whether in the public or private sector. And make no mistake, private practitioners, not just public sector lawyers, need to absorb and live the public service mandate in order to raise the bar on our real worth as a profession. The “image part” will follow right behind.
Public Service Jobs
Government lawyers and public interest lawyers are also bound by the public service obligation, but for them it is their core mandate. I used to say to the young prosecutors who worked for me when I was the U.S. Attorney for the Southern District of New York: “your conscience is your client,” reminding them that, as representatives of the public, they should always, always take the “high road,” both substantively and procedurally, as they carry out their responsibilities. The same applies to the SEC staff lawyers with whom I am now privileged to work. The primary responsibility of government lawyers is to serve the public – and that is also their primary source of job satisfaction. I see that every day with the SEC staff and the high levels of professional accomplishment and personal pride that comes from the work they do to protect investors, safeguard our markets, and facilitate capital formation -- the tripartite mission of the SEC. Doing what you think is in the public’s best interest every day, and doing it in the most principled way, is a sure path to professional and personal fulfillment. Very good work if you can get it.
The Rewards of Public Service
There are, of course, many other benefits and rewards that come from a public service job. I will highlight just three of them:
- exposure to an important segment of our profession that contributes directly to the public welfare;
- hands-on training and greater responsibility as a young lawyer; and
- the opportunity to work on cutting edge issues.
When young lawyers ask me about a choice between a career in the public or private sector, I invariably offer the following advice -- if possible, try to spend time in both. Even if you think you are destined to be a life-long government or public interest lawyer, or to have a long career in private practice in a large law firm, it is still invaluable to experience as many different slices of legal life as you can.
As young lawyers begin their legal careers, they often have very little idea of what will actually interest and engage them, so it is important to take advantage of every available opportunity early on. Exploring both the public and private sectors will steepen and broaden their learning curves. Our careers as lawyers typically span many decades, often as many as 40 or 50 years –that gives us a lot of time to work with. So it is possible for your graduates, over the course of their careers, to seize any number of exciting and varied opportunities that come their way and ignite their interest.
This last piece of curbside advice is for the long-term too. More senior – or as I like to say “seasoned” – lawyers should look for opportunities to follow their hearts and dreams, especially when they involve providing public service on a more full-time basis. Both the lawyer and the public will be the beneficiaries.
At the SEC, for example, we have made an effort over the last several years to hire experts from the private sector, both lawyers and other market specialists. Our existing staff and the new private sector recruits learn from and complement each other. It unquestionably makes us a stronger agency and enhances our ability to protect investors and strengthen our capital markets. We also benefit enormously from those academics, market experts and others with very busy day jobs who give of their time and talents to our advisory committees. For example, in the coming days we will announce the members of the Market Structure Advisory Committee, a committee filled with market experts and academics that will assist our staff and the Commission in the very important work we are doing to comprehensively review the structure of our equity markets to optimize them for the benefit of investors and companies seeking to raise capital. The opportunities are many. Jobs in the government for lawyers range from short-term consultancies and fellowships, to full-time positions and even Presidential appointments, such as mine as Chair of the SEC and United States Attorney.
As a society, we need to attract talented, knowledgeable and genuinely committed professionals to public service and work to remove barriers that discourage giving back – whether the obstacles are financial, structural, educational or something else.
Of course, a major benefit of public service jobs for young lawyers is hands-on training and greater responsibility. There simply is no substitute for “doing it” to grow your competence and expertise. Trying a case, however small, is qualitatively different than serving as one of a dozen associates on the biggest antitrust or securities fraud case. Having done both, I know that both can provide invaluable experience, but I would argue that young lawyers find the most vertical learning curves in the public sector -- where you can handle your own cases and where the decisional “buck” often stops with you. Some of my most meaningful, and memorable, learning occurred when I was the one calling the shots as a young prosecutor.
Another significant benefit of public service jobs is the importance and variety of the work. Prosecutors who worked for me when I was U.S. Attorney tried and convicted the terrorists who bombed the World Trade Center in 1993 and our embassies in East Africa in 1998, indicted Osama bin Laden, and investigated the terrorist attacks of 9/11. Others indicted and convicted major financial institutions for securities and other frauds. Enforcement staff attorneys at the SEC root out fraudsters stealing millions of dollars in complex Ponzi schemes and recover money for harmed investors who count on their investments to fund their children’s education or their own retirements. Others at the agency develop policy initiatives that enhance the resiliency of our equity markets and provide more useful information to investors before they decide whether and where to invest their money. In other areas of the public sector, lawyers work to overturn unjust laws, exonerate the innocent, uphold our civil rights, or provide legal services to those who cannot afford a lawyer.
Motivation is almost never lacking in public service jobs. Indeed, the word that almost always pops up in discussing public service jobs is “fun” – a priority that has become far too elusive and scarce in our profession. The late Judge Edward Weinfeld of the Southern District of New York, who routinely arrived at the courthouse before 6 AM and worked twelve hour days, put it this way – “What one enjoys is not work. It is joy.” I have been very fortunate in my career to share Judge Weinfeld’s view. Finally, trying hard not to sound like I am on a soapbox, when you engage in public service, every day you go to work, you have a chance to make a real difference in people’s lives. As I said earlier, very good work if you can get it.
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So, thus far, I have urged that all lawyers recognize our obligation to conduct ourselves in furtherance of the public interest, whether directly from the perch of a public service job or by practicing law “in the spirit of public service” -- asking and advising on those “ought to” questions. I have also made a shameless pitch for greater pursuit of public service jobs throughout our legal careers. That brings me to my final point -- close to home for this audience -- how I believe law schools contribute so vitally to broadening law students’ perspectives and deepening their commitment to serving in the public interest.
Role of the Law Schools
Let me hasten to say that I would not presume to lecture you on legal education. That is your expertise and one that I deeply respect. Rather, I want to commend you for some of the steps law schools have taken to foster and promote public service and legal practice “in the spirit of public service.” I will be brief and again mention just three:
- exposing students to opportunities and direct experience in public service;
- providing encouragement and support for placement in public service jobs; and
- teaching professional responsibility beyond specific courses as a permeating guiding principle.
Law schools today offer a wide range of clinical programs, externships, and other direct opportunities for students to obtain on-the-job public service experience through working in government agencies and public interest organizations. I can tell you firsthand that the SEC has benefited greatly from these programs as we typically have law school interns from many different law schools working with us throughout the academic year -- last year, some 800 students from more than 130 law schools participated in the programs we offer. Our interns provide a real contribution to our work, becoming valuable members of our teams – in enforcement, rulemaking and other areas of the agency’s responsibility. Most of our interns receive school credit, and many have come back to work for us after graduation.
On top of providing such valuable direct experience while still in law school, law schools have also instituted several important, and often creative, programs to encourage and support their students’ placement in public service jobs. These programs range from student loan deferral or forgiveness, fellowships and direct grants for a public service commitment after graduation to career fairs, symposiums, placement assistance, and public service mentorships.
More broadly, law schools have increasingly established centers focused on ethics and professional responsibility to prepare students for the difficult and important ethical issues they will invariably face during the course of their careers. As typified by the Louis Stein Center for Law and Ethics at Fordham Law School, these programs go far beyond ensuring that the curriculum has a course or two on professional responsibility. Rather, they teach what they call at Fordham “a life in noble lawyering.” These programs are a critically important component of a law school education that fosters a perspective that ethics and professional responsibility can and must serve as a life-long guiding principle. It is a public service perspective that reminds students that our profession rightfully demands giving something back, which is important no matter where law school graduates end up spending their professional careers.
The benefits of this greater public service emphasis thus extends far beyond providing first-year jobs or a more diverse set of employment choices to law school graduates. The enhanced focus will return real dividends in training a new generation of lawyers on the importance of public service in all of its forms and fostering the critical values of a public service ethic. All of this will have a positive impact on how graduates practice and how the profession is perceived.
As you continue such efforts, it is important to keep in mind that a career in public service should not be a hard sell to many of the millennials who decide to attend law school. There is a growing body of evidence suggesting that younger generations are generally more civic-minded and interested in community service than older -- by which I mean “my” and possibly your -- generations. There is also a trend of more law school graduates working in jobs that do not require passing the bar exam, including many in the public sector. And some foresee a growing demand for individuals with a law school education in the fields of health care, housing, elder care, international commerce and digital security. We should try to capitalize on all of these developments and opportunities as we think about the future of legal education. Although easier said than done, surely it is possible to recalibrate our economic models for legal education to harness the new normal for lawyers, including, I hope, a greater emphasis on and participation in public service.
There is in my view, no higher calling for a lawyer than public service. And each of you is actively engaged in perhaps the most important aspect of public service for our profession – teaching, guiding and inspiring our future lawyers. You are the role models and primary drivers of how well lawyers will do in fulfilling their public service obligation. How well they do at that, in turn, will heavily influence what kind of society we will have. No pressure.
Just know how important you are and how important the decisions you make about legal education at the crossroads will be. Most importantly, know how much the profession admires what you do and how grateful we are for the public service choice you have made for your own careers.
 Elizabeth Olson and David Segal, “A Steep Slide in Law School Enrollment Accelerates,” New York Times (December 17, 2014), available at http://dealbook.nytimes.com/2014/12/17/law-school-enrollment-falls-to-lowest-level-since-1987/?_r=1.
 “American Bar Association Releases Class of 2013 Law Graduate Employment Data,” (April 9, 2014), available at http://www.americanbar.org/news/abanews/aba-news-archives/2014/04/american_bar_associa4.html.
 “Employment for the Class of 2013 – Selected Findings,” National Association for Law Placement (2014), available at http://www.nalp.org/uploads/Classof2013SelectedFindings.pdf.
 Many have written about the dichotomy that can be drawn between the “service” and “business” aspects of legal practice and legal competition. As has been pointed out, the danger for the profession is that the balance can be struck too far on the business side. While that is certainly a risk in the current environment, it must be avoided if we are to maintain and enhance the quality of legal services and our commitment to public service. See, e.g., Ben W. Heineman, Jr., William F. Lee, and David B. Wilkins, “Lawyers as Professionals and as Citizens: Key Roles and Responsibilities in the 21st Century,” Harvard Law School Center on the Legal Profession (November 20, 2014), available at https://clp.law.harvard.edu/assets/Professionalism-Project-Essay_11.20.14.pdf.
 Id. at p.12.
 ABA Model Rules of Professional Conduct Rule 6.1 (“A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.”), available at http://www.americanbar.org/groups/probono_public_service/policy/aba_model_rule_6_1.html.
 Roscoe Pound, The Lawyer From Antiquity to Modern Times, West Publishing Company (1953).
 Reported in Gary Hengster, “News,” American Bar Association Journal (April 1989) as cited by Mary Ann Glendon. A Nation under Lawyers, Harvard University Press (1996).
 See, e.g., “Honesty/Ethics in Professions,” Gallup Poll (December 2013), available at http://www.gallup.com/poll/1654/honesty-ethics-professions.aspx.
 Dan Slater, “Barack Obama: the U.S.’s 44th President (and 25th Lawyer-President!),” Wall Street Journal Law Blog (November 5, 2008), available at http://blogs.wsj.com/law/2008/11/05/barack-obama-the-uss-44th-president-and-24th-lawyer-president/.
 Kenneth M. Rosen, “Lessons On Lawyers, Democracy, and Professional Responsibility,” Georgetown Journal of Legal Ethics (Winter 2006).
 “Public Esteem for Military Still High,” Pew Research Center Religion & Public Life Project (July 11, 2013), available at http://www.pewforum.org/2013/07/11/public-esteem-for-military-still-high/.
 See, e.g., Peter Truell, “Daiwa Bank Admits Guilt In Cover-Up,” New York Times (February 29, 2009), available at http://www.nytimes.com/1996/02/29/business/daiwa-bank-admits-guilt-in-cover-up.html; Reed Abelson, “Bankers Trust Is Ordered to Pay Fine,” New York Times (July 27, 1999), available at http://www.nytimes.com/1999/07/27/business/bankers-trust-is-ordered-to-pay-fine.html; and Kenneth Gilpin, “Republic New York Pleads Guilty to Securities Fraud,” New York Times (December 18, 2001), available at http://www.nytimes.com/2001/12/18/business/republic-new-york-pleads-guilty-to-securities-fraud.html.
 See SEC Spotlight on Enforcement Actions Against Ponzi Schemes, available at http://www.sec.gov/spotlight/enf-actions-ponzi.shtml.
 David Margolick, “A Lifetime of Law and Quiet Diligence for Judge Weinfeld,” New York Times (August 18, 1985), available at http://www.nytimes.com/1985/08/18/nyregion/a-lifetime-of-law-and-quiet-diligence-for-judge-weinfeld.html; and Arnold Labasch, “Judge Edward Weinfeld, 86, Dies; On U.S. Bench Nearly 4 Decades,” New York Times (January 18, 1988), available at http://www.nytimes.com/1988/01/18/obituaries/judge-edward-weinfeld-86-dies-on-us-bench-nearly-4-decades.html.
 Steve Wilson, “The Work Ethic of Legal Ethics,” Fordham Lawyer Magazine (Spring 2013), available at http://www.flipdocs.com/showbook.aspx?ID=10005364_360503&p=18.
 See Karen Sayre, “Civic generation rolls up sleeves in record numbers” USA Today (April 13, 2009); Connie Cass, “Young Generation No Slouches at Volunteering” AP (December 29, 2014), available at http://hosted.ap.org/dynamic/stories/U/US_AP_POLL_YOUNG_VOLUNTEERS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT.
 "Employment for the Class of 2013 - Selected Findings," (2014), available at http://www.nalp.org/uploads/Classof2013SelectedFindings.pdf.
 See Elizabeth Olson and David Segal, “A Steep Slide in Law School Enrollment Accelerates,” New York Times (December 17, 2014), available at http://dealbook.nytimes.com/2014/12/17/law-school-enrollment-falls-to-lowest-level-since-1987/?_r=1.