Public Interest Framing Needs an Overhaul

art by: In-House Clownsel

By Steve Kennedy, People's Parity Project

Every year around this time, students across the country enter law school, with a majority seeking public interest careers. Most of these students imagine themselves doing work along the lines of Equal Justice Works’ description of “focus[ing] their practice on helping low-income, marginalized, or vulnerable populations.” However, in addition to work such as legal aid and public defense, many law schools include careers like prosecution, municipal corporation counsel, and others representing the government—often in conflict with low-income, marginalized, and vulnerable populations—in their formulation of public interest work. Inclusion of these careers, where lawyers represent the powerful party in a dispute, is misleading to those seeking to represent people against powerful interests, and it is time for a new, pro-people framing of working in the public interest.

Considering that attorneys in government fields like prosecution and corporation counsel are supposed to act in the interest of the public, their inclusion is not unreasonable, but it does create a mismatch between the work captured by the term “public interest” and the work that most students envision when they go to the public interest career office. Causing further confusion, because they are generally in private practice, plaintiffs’ attorneys who represent individuals in claims against corporations are kept separate from “public interest” careers. However, these attorneys also often advance the interests of low-income, marginalized, or vulnerable populations. Especially considering the tendency of law students to drift from public interest toward pro-corporate work, highlighting options such as plaintiffs’ litigation could be useful for keeping students on track to work for those that they came to law school to represent. Considering the state of “public interest” work being both over- and under-representative of those working on behalf of marginalized populations, rather than “public interest,” the term “pro-people” can be more instructive to those seeking to assist “low-income, marginalized, or vulnerable populations” against powerful interests like corporations or the government. 

Some examples of the difference in terms can be instructive. Recently, shocked headlines reported that a Virginia school board’s attorneys argued that a teacher shot by a student was not entitled to workers’ compensation because school shootings are a “hazard of the job” for teachers. Government jobs like working as municipal corporation counsel, like those who represent the school board, are generally described as public interest work and qualify for programs like Public Service Loan Forgiveness, but in many cases they act in the same capacity for the state as a corporate defense attorney would for a corporation. A recent survey by the UConn Law chapter of the People’s Parity Project of the cases handled by a judicial candidate who worked primarily as corporation counsel found that the majority of cases involved defending cities against claims such as employment discrimination and civil rights violations, false arrest, and assault by police officers. The plaintiffs in these cases are almost always at a power disadvantage relative to the city and are often from the same marginalized populations that public interest work is, in theory, supposed to benefit.

For prosecutors, the situation is no better. The same PPP UConn survey’s analysis of a different judicial candidate who had worked in federal appellate prosecution found similarly problematic cases. This candidate’s case history, which was not out of the ordinary for a federal appellate prosecutor, included arguing against sentence modifications for defendants convicted under previous disparate crack versus powder cocaine sentencing guidelines, advancing novel arguments to deport criminal defendants whose violations did not fit the traditional “crime of moral turpitude” standard, defending civil forfeitures against criminal defendants’ uninvolved relatives, and defending the invalidation of plea bargain terms via “collateral attack waivers” despite their prohibition by the U.S. Attorney General. Again, in each of these cases, an individual came up against the full weight of the federal government, and the attorney was on the side with power.

A pro-people formulation of public interest work would exclude those representing the overpowered parties in cases, such as corporations or the state in actions against individuals. Pro-people attorneys represent marginalized communities through legal aid offices, they defend people facing the loss of life and liberty via the criminal system as public defenders, they help people file lawsuits when corporations poison their water or injure them with defective products as plaintiffs’ attorneys, and they protect workers’ rights when they are violated by employers as plaintiffs’ employment litigators or union lawyers. Wherever an individual or a group of people is up against a powerful interest, pro-people attorneys seek to represent them. The distinction between public versus private practice and the assumption of government work being in the public interest does not serve students looking to make a difference and makes their journey toward pro-people lawyering significantly more difficult. To truly support low-income, marginalized, and vulnerable populations, law schools and the legal profession need to start being honest about what is meant by the public interest and who represents it.