May 28, 2013

The Honorable M. Patricia Smith

Solicitor

U.S. Department of Labor

200 Constitution Avenue NW

Washington, DC 20210

Dear Ms. Smith:

I am writing on behalf of the American Bar Association (ABA) to follow up on the

discussions you and your staff had with representatives of our Governmental Affairs

Office regarding participation by law students in handling pro bono matters as unpaid

interns in law firms. I appreciate your taking the time to meet with our staff and your

willingness to consider clarifying your Office’s perspective on this subject.

As you may know, law schools are required by ABA Accreditation Standard 301(b) to

offer substantial opportunities for student participation in pro bono activities. In addition

to pairing their students with nonprofit organizations and government agencies, law

schools would also like to place their students with for-profit law firms (including

corporate legal offices) to work on pro bono matters. The primary purpose of these

programs is to advance and expand the education of the students; where law firms, legal

aid offices, and certain nonprofits are involved, the placement also provides desperately

needed legal assistance to the underserved.

The ABA supports your efforts to obtain fair wages for those clearly falling under the

Fair Labor Standards Act (FLSA). At the same time, we believe that the language of the

FLSA 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 agrees that exploitation of law

students and other interns is unacceptable; however, the FLSA uncertainty inhibits law

firms from offering students the opportunity to work on pro bono matters in a real-life

practice setting. It also reduces the potential supply of legally trained women and men

willing to spend their time working on behalf of persons without the resources to pay for

legal counsel. Furthermore, in the current economic climate with shrunken employment

opportunities for law school graduates, hindering the ability of law students and recent

graduates to work side-by-side with experienced lawyers who could provide both strong

mentoring and favorable substantive references unnecessarily reduces access for future

employment prospects.