The case for a bar exam minimum wage

A bill to establish a minimum wage for articling students from the 2019-2020 academic year has drawn the ire of bar associations. The Bar Association of the City of New York and the Bar Association of the State of New York (the latter of which counts on the support of private practice attorneys for its work) have condemned the initiative — arguing that it’s unconstitutional and violates the principle of “admission by consent”. The hearing was slated to take place Wednesday evening.

Of the initiative, Bloomberg’s Law has reported:

The bill, which received overwhelming support from the borough presidents and assemblyman Kevin Parker, would require all newly admitted attorneys — from low-income and minority backgrounds — to be paid a $43,000 yearly minimum wage — a much lower wage than the $59,000 the lowest earners are paid by the city. Law students would also be required to pay registration fees of $28. In order to assure a fair financial match, the bill dictates that any student above a certain level, who may be deemed of low economic circumstance, should have to repay their registration fees if they are unable to afford them.

The measure would indeed provide greater equity for applicants from lower-income backgrounds and meet a need that New York, often noted as the most expensive state in which to practice law, has called for. It also distinguishes New York’s bar exam from those of other states by meeting candidates from a wide range of backgrounds on an individual level.

The bar associations’ arguments, however, are riddled with factual errors and, as a result, rob the spirit of the bill — which cannot reasonably be held to be unrelated to the financial barriers to entry. While the cost of getting to law school is obviously daunting and admissions may be more burdensome in cities such as New York, most American law schools still pay tuition of around $50,000 a year. Since its inception, the College Bar Association has not opposed state minimum wages for bar exam students and has argued that such laws, such as they exist in New York, serve both the law students and the society to which they belong by providing them with higher-quality legal counsel.

Such programs, moreover, often remove barriers that may encourage students to leave their first career in the legal industry, instead turning them into entrepreneurs and other professions, creating the type of new workforce that the New York Law School offers.

But the debate about a minimum wage for articling students, and the accompanying anger directed at those who will be harmed by it, is an embarrassment to the legal profession. This proposal, suggested by state leaders including Governor Andrew Cuomo and Brooklyn’s D.A. Eric Gonzalez, has merit that should be recognized. But its introduction by private practice attorneys and clubby circles of lawyers who hold close relationships with each other does little to show gratitude to those suffering in the wage gap. By singling out individual students to be punished for their financial situations, these bar associations would be contradicting their own principles, and reaffirming, sadly, the central belief that those from low-income backgrounds are unable to pursue their dreams in this country.

“Access to justice,” a belief that has guided the enactment of legislation over the years, is a noble idea, one that has served as the backdrop for efforts to bring about greater justice for all. The prevailing sentiment when it comes to a fair wage for lawyers, as this one does, lies at the heart of this belief. The principle of “admission by consent” — which only exists in California — serves as the support that private practice attorneys afford the bar associations, thereby engaging in the sharing of power, in a way that no government instrumentality can. Certainly, it is the public good that these organizations serve, but they should not be doing the heavy lifting themselves — and using their position to manipulate positions of power that the government has not used. They should be encouraging new legal players to take advantage of opportunities available to them, not launching a campaign that threatens to do so.

And, as the current debate proves, one that favors the privileged over those working hard, and does nothing to alleviate the ones who are truly hurting from decades of neglect.

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