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June 01, 2013

ABA seeks clarification for law student intern arrangements

ABA President Laurel G. Bellows sought clarification from the Department of Labor (DOL) last month to ensure that law firms may offer law student interns the opportunity to work on pro bono matters in real-life practice settings.

She explained in a May 28 letter to DOL Solicitor M. Patricia Smith that ABA Accreditation Standard 301(b) requires law schools to offer substantial opportunities for student participation in pro bono activities. The primary purpose of these programs is to advance and expand the education of the students and to provide desperately needed legal assistance to the underserved, she said.

In addition to pairing students with nonprofit organizations and government agencies, law schools want to place students in for-profit law firms (including corporate legal offices) to work on pro bono matters. Bellows said that the association supports DOL efforts to obtain fair wages for those clearly falling under the Fair Labor Standards Act (FLSA) and agrees that exploitation of law students and other interns is unacceptable. FLSA language does not clearly, on its face, permit or prohibit pro bono internships with private law firms or business law departments related to purely pro bono matters in which the firm or business has no anticipation of revenue.

The ABA, she said, requests that DOL, through an informal letter, provide both law firms and law schools assurance that the department will not take legal enforcement action against intern hosts who utilize unpaid interns under certain circumstances consistent with the purposes of FLSA and do not violate the law.

Bellows said those objectives can be fully obtained if interns are utilized under the following conditions:

     •the intern must be (a) a law student, (b) a law school graduate who intends to take the bar exam within one year of graduation, or (c) a law school graduate who has taken the bar exam, is awaiting results, and is not yet licensed to practice law in any U.S. jurisdiction;

     •the intern’s law school must be involved in the process as an intermediary between the interns’ host and the intern (including a post-graduation intern);

     •the intern must only work on pro bono matters from which the intern host neither derives nor expects direct financial benefit from the intern’s work. This excludes participation in potential fee-generating litigation;

     •the intern host must offer the intern or graduate an educational experience related to the practice of law; however, the law school is not required to grant course credit for pro bono work, although it may do so if it chooses; and

     •the intern hosts must provide written assurance to the law school and the prospective intern that the internship is in compliance with the above conditions.

“We appreciate your willingness to clarify this issue to ensure that law students and recent graduates are not exploited through internships while still allowing them to complete pro bono efforts without pay at both law firms and not-for-profit entities,” Bellows said.

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