Out of the Ivory Tower, Into the Legal Trenches

From advising O.J. Simpson to defending medical marijuana, law professors are increasingly visible in the courtroom.

Legal scholars have consulted on the side for decades, but their work in court has appeared to jump in recent years because of the highly publicized and often controversial cases many now take. Motivations range from money and fame to altruism and intellectual challenge.

“It’s becoming more transparent,” said Harvard Law professor Laurence Tribe, who has argued 30 cases before the U.S. Supreme Court since 1980. In decades past, little of the outside work by law professors generated publicity. “It was consulting on the q.t. more or less,” Tribe said.

Law schools generally permit faculty to spend 20% of their time on outside work, and about 50% of law professors take private cases, sometimes without pay, sometimes as expert witnesses for large fees.

Private legal work can fatten a professor’s pocketbook, enhance the reputation of the law school and draw more students to his or her classes.

Some law professors become famous. Millions of people saw Harvard’s Alan M. Dershowitz portrayed in “Reversal of Fortune,” a movie based on the law professor’s book about his defense of socialite Claus von Bulow.

But stepping outside the ivory tower for litigation also can lead to charges of conflict of interest, alumni anger and claims that students are being short-changed.

Tribe is among the best-paid of law school legal advocates. A constitutional law expert, Tribe says he does much of his outside work for free, but “my standard rate is well above $500 an hour.” Among current paying clients is Pacific Gas & Electric Co., which hired him to help in its bankruptcy petition.

Taking on a private client can require soul-searching, he said. “There can be a conflict between one’s intellectual integrity on the one hand and the position one finds oneself taking in a brief.”

Some law professors say they will argue whatever it takes in the heat of a court battle, regardless of whether it conflicts with views they have espoused in scholarly journals, Tribe said.

“I find it easier to look at myself in the mirror and not feel ashamed when I just decline to take cases that put me in a position where I have to argue something I really don’t believe,” Tribe said, adding that, of course, “it is always possible to fool oneself.”

Scholars also risk the appearance of conflict when they litigate before courts that they regularly comment upon for the media or legal publications.

Santa Clara University law professor Gerald Uelmen is a leading expert on the California Supreme Court and on occasion argues cases before it.

“I certainly don’t feel awkward,” said Uelmen, who also worked as a criminal defense attorney for Simpson. “I certainly wouldn’t comment on cases I have been directly involved in or at least without disclosing that involvement.”

Uelmen said he tries assiduously to be objective in his commentary on jurists. Likewise, Tribe said he writes critical articles on U.S. Supreme Court opinions without being concerned that they might cost him a vote or two when he argues before the panel.

“I don’t think it’s hurt my batting average,” said Tribe, who has won about two-thirds of the cases he has argued before the court.

Few professors take on trials because that would remove them from the classroom. Those who do often take leaves or sabbaticals.

To win tenure, professors must publish scholarly work on top of teaching and handling private clients. Uelmen said professors can often “double dip” by using research that went into a brief on a case for an article in a law journal.

Students sometimes work with professors on outside legal cases. Uelmen said his dean allowed him to teach a seminar on a case in which he defended a voter initiative that allowed for the use of marijuana for medical reasons. He said he received some financial support from medical marijuana groups, mostly for expenses. The case went to the U.S. Supreme Court last year and is now back before a federal district judge in San Francisco.

“I had 12 students working with me, researching and writing the brief,” Uelmen said. “When we argued the case, the law school helped fly them to Washington, so they had front-row seats.”

Students can work without pay on cases that professors take without charge, but professors generally reimburse those who do research for paying clients.

“You want to make sure that the purpose is to advance the student’s education and not to advance the professor’s wallet,” said Jonathan Varat, dean of the UCLA School of Law.

Private legal work, if controversial, can spur angry reactions from alumni and donors. University of Southern California professor Erwin Chemerinsky, who has helped litigate a civil rights case on behalf of terrorist suspects detained at the U.S. naval base in Guantanamo Bay, Cuba, said he and his dean received hate mail as a result of his private work. The school has been strongly supportive and has never interfered, Chemerinsky said.

Chemerinsky is appointed to cases by the U.S. 9th Circuit Court of Appeals and has argued and won cases before the appellate court. He said he receives no pay for his case work but uses it as a teaching tool.

“Ultimately, I am training lawyers, so I think having practical experience makes me better as a teacher,” Chemerinsky said.

Uelmen said the top professors tend to be those who remain at least somewhat involved with the courts and litigation.

“They have much more credibility with the students,” he said. “They are much more up-to-date as to the issues of consequence being litigated out there.”

Most law schools have policies that professors must follow if they engage in private litigation. At the University of California, the administration is “ambivalent” about outside work, said UC Berkeley Law professor Stephen Barnett.

“On the one hand, professional school faculty members are encouraged to practice their profession,” Barnett said. “On the other hand, they are encouraged to limit the time they spend doing that.”

Law professors at the University of California earn from $114,000 a year to as much as $196,500 a year. Elsewhere, salaries range from $80,000 a year to more than $200,000, amounts that usually exceed the pay of faculty in other departments.

The disparity between what lawyers can earn teaching and practicing has grown substantially in recent years and may have spurred some professors to take on private cases, said Cardozo School of Law professor Barry Scheck. First-year law graduates often make more than the professors who taught them, he said.

Scheck has taken on legal cases for pay, including the Simpson trial, in addition to his work for Cardozo and its Innocence Project, which he and Peter Neufeld founded in 1992. The project has used DNA evidence to win the release of 104 prisoners nationwide who were wrongfully convicted.

Scheck used his DNA expertise in representing Simpson, who was acquitted of killing his former wife and her friend.

Although critics say Scheck was hypocritical in attacking prosecution DNA evidence in the Simpson case, Scheck said his work in the trial led to substantial improvements in the training of law enforcement and laboratory technicians who handle DNA evidence.

While the Simpson verdict was controversial, Scheck said he believes the trial enhanced rather than hurt his reputation.

“It gave me a different level of notoriety, and so it was easy for me to convert that into effective influence for what I always knew was a much more important goal,” the freeing of the innocent from prison.