How Best to Build a Lawyer?
Ideas Float about Changing Law School and Bar Exams, But Few Show That They Have Sticking Power
Posted May 23, 2006 2:30 AM CDT
By G.M. Filisko
So, would you hire a lawyer—or want to work next to one—who never went to law school? For years, ideas have been batted around to improve the way lawyers are educated, ranging from allowing apprenticeships to changing bar exam standards to wiping out law school altogether. Interest rises and falls, but tends to rise again when questioning about the profession itself grows louder.
Some states do offer an alternative, with California, Maine, New York, Vermont, Virginia, Washington and Wyoming allowing students to skip law school in favor of some form of apprenticeship or “reading the law,” which combines self-study and practice under the supervision of an experienced, bar-admitted attorney. Indeed, Vermont Supreme Court Justice Marilyn Skoglund did just that, working under the supervision of another attorney before taking—and passing on her first try—the bar exam.
Hiring partners at firms throughout the country reject most alternative ideas outright, including eliminating law school and allowing pure apprenticeships or reading the law. Of the remaining ideas on the table, the only one that many hiring partners would support, at least in theory, is a system in which students would attend law school for some time, then serve as a resident at a law firm, much like doctors do at hospitals. But the jury’s still out on whether any of these ideas, even legal residencies, have a realistic chance of changing the way you practice law.
Is there even a problem?
Before major changes to legal education would be implemented, there would likely have to be a consensus that the current system needs to be fixed. There’s apparently no such consensus today.
U.S. Rep. Lamar Smith, R-Texas, has been vocal about problems with the justice system, reintroducing the Lawsuit Abuse Reduction Act of 2005 last January. The legislation would, among other things, require unsuccessful plaintiffs to reimburse defendants and would require judges to impose sanctions on attorneys who file frivolous lawsuits. It passed the House last year but failed to reach a vote in the Senate.
However, though Smith says (through a spokesperson) that the legal system creates a “lawsuit lottery,” he says he hasn’t formed an opinion about whether changing the way the legal system trains its professionals is a necessary step in efforts to reform the system. Others, however, have crystallized their opinions. “I think there’s a problem” with legal education, says Gary Blasi, a professor at the University of California at Los Angeles School of Law. “It’s clear there’s a shortage of lawyers and a great lack of access to mechanisms of justice for the middle class and poorer people. The legal education and qualification system isn’t producing lawyers who can fill that gap.”
Blasi understands firsthand the issues of legal education because he became a lawyer without attending law school. After graduate study, he became one of six legal apprentices at a community law office in Los Angeles. Four of the six in his group eventually became lawyers.
Others, however, think the current legal education system works just fine. “For the most part, the existing system works well for us,” says Kevin Rosen, who chairs the hiring committee at a Los Angeles-based firm. “The people we see are getting good educations and many times good clinical experience from law school,” he says. “Are there potential ways to fine-tune the system? Sure. ... But you have to distinguish between fine-tuning the system and throwing the system out.”
The Code of Recommended Standards for Bar Examiners—published by the ABA, the National Conference of Bar Examiners and the Association of American Law Schools—also does not support alternatives to law school. In 2003, it stated, “Neither private study, correspondence study or law office training, nor age or experience should be substituted for law-school education.”
Steven Smith, chair of the ABA Section of Legal Education and Admissions to the Bar, is in the middle, content with law school training but open to new ideas.
“The public is best-served when we rely on high-quality legal education to prepare lawyers for the next generation of practice,” says Smith, dean of California Western School of Law in San Diego. “For me, the criterion by which all ideas should be measured is whether they improve legal services to the public.”
Most lawyers interviewed rejected out of hand several ideas, such as eliminating law school (see sidebar) and allowing pure apprenticeships or reading the law. Even Blasi does not support legal apprenticeships.
“I get people contacting me to ask how they can become a lawyer without going to law school,” he says. “I generally try to ... encourage them to follow another path. It’s really hard and you shouldn’t do it alone.”
One hiring partner at an Austin, Texas, firm—Lino Mendiola III—says if Texas adopted an apprenticeship or reading-the-law education track, he’d consider only limited participation. “I’d mentor an exceptional candidate with strong, demonstrated academic credentials, such as a Ph.D. in history,” he says. “But for most candidates, I don’t think they can self-teach the things I think are essential to the practice of law, such as professional responsibility and a common understanding of the American legal system.” However, Steven M. Cohen, hiring partner at a New York City firm, sees the merits of a hybrid program combining some law school with reading the law. Cohen calls his idea “reading the law and apprenticeship tutelage,” and his twist is that the self-study would be administered through tutorials with a prestigious, learned attorney.
Cohen likens his program to “the British higher education system, where you’re in a tutorial, reading and discussing one-on-one with somebody who has an expertise in the area.”
The idea, Cohen admits, hinges on the prestige of the tutor. “There are many judges, especially senior judges, who’d love this. I’m thinking of Judge [Gerard E.] Lynch” in the U.S. District Court for the Southern District of New York, based in New York City. “He’s a professor at Columbia Law School. He’s bright and extremely well-regarded, and I think he enjoys the role of a teacher.”
“Maybe I’m nuts,” says Cohen, “but I think it would work.” If Paul, Weiss, Rifkind, Wharton & Garrison, a New York City firm, “decides this is an excellent way to bring in people, many other firms would say, ‘If it’s good enough for Paul Weiss, it’s good for us.’ Suddenly, it would become competitive in the way clerkships have become competitive.”
Another idea, which some attorneys don’t oppose, though they aren’t sure it would benefit clients, is law school specialization. Under this approach, a student might graduate from law school with a juris doctor and a specialization in, say, mergers and acquisitions or family law. Paul Sylvestri, hiring partner at a Rochester, N.Y., firm, notes the patent bar is a form of such specialization, but he sees problems in other areas of the law.
In practice, Sylvestri says, it’s often hard to know where one area of law begins and another ends. Using environmental law as an example, he says, “It’s difficult to determine what areas will constitute environmental law.” It’s also common for clients to have legal problems that span several areas of the law, he notes. For instance, selling real property could involve environmental problems and tax consequences. Sylvestri says specialization would also increase costs to clients and heighten the need for risk-management paperwork: Attorneys would have to document that they managed specialized issues properly and handed off ancillary issues to other attorneys at the appropriate time. “I also don’t think it would improve the level of service provided to clients,” he says.
Despite shooting down most of the current ideas, many hiring partners are open to a system in which students would attend law school for some time and then serve as legal residents.
“My general sense is that the first year to two years of law school is important,” says Sylvestri, “because it really does teach people how to spot and analyze issues and how to construct arguments.” However, he adds, he could see “losing the last year of law school and replacing it with practical work.”
Blasi, whose colleagues refer to his apprenticeship as “the 100 percent clinical method” of legal education, also says swapping some school time with clinical time would be valuable.
“There’s a very widespread, well-known phenomenon of second- and third-year law students disengaging from the process,” Blasi says. “Their attendance rate is below 50 percent because they are not learning something new. That seems like a waste to me because it’s very expensive.”
Blasi suggests a program in which students planning to have a general practice spend three semesters in law school and three more in a “structured, supervised clinical environment.” He says students should be paid for their time doing clinical work. But even if they weren’t, “at least they wouldn’t be charged $40,000 a year, and they’d have half the student loans” they typically have upon law school graduation, he says. Still, Mendiola isn’t convinced. “Frankly, I’m a little skeptical because I think a three-year law school experience is critical to the development of new lawyers. I just don’t see what would be cut out.”
A residency program could help law firms in hiring, says Steven R. Klein, a hiring partner in Hackensack, N.J. “If you bring students in for an extended apprenticeship, you get a better look at them,” he says.
A residency could also improve attorney retention, says Rosen. “It may result in less movement by people from one area of the law to another or from one firm to another,” he says.
Blasi admits his isn’t a “bulletproof proposal,” and others agree that kinks would have to be worked out. “I’m not sure who would actually certify that the person has completed the residency and is certified to practice,” Klein says. Smith sees additional roadblocks. “How do we establish a system that adequately supervises the training of the trainers or trainees,” he says, “and how do we pay for it?”
Students’ Dream: No Test
It’s impossible to ignore the role of the bar exam in discussing changes to legal education. There have long been complaints that the exam doesn’t test students on the skills a good lawyer needs, that passing scores are set arbitrarily, and that the exam disproportionately blocks minorities.
In New York State, complaints about the exam came to a head in 2005 when the Special Committee to Study the Bar Examination and Other Means of Measuring Lawyer Competency was created in response to the state law examiners’ announcement that they would raise the passing score by 15 points.
The committee’s mission is broad, says Chairman John J. Kenney of New York City, and includes reviewing the criteria and procedures for admission to the bar, the purpose and effectiveness of licensing, and the relationship between competency and licensing. Kenney also says the committee will evaluate whether changes are needed in how the state educates its attorneys. “It’s something we’re looking at in detail,” Kenney says. “When you get out of law school, you’re certainly not trained as a doctor is. You haven’t been in the field. ... There’s no formal process in most states to do that. Should there be one?”
“We’re looking at other states—but also what countries foreign to us are doing, including the United Kingdom, Japan, Germany and Brazil,” Kenney says. “We’re hoping to have some findings by the annual meeting of the state bar in June 2006.”
Hiring partners, on the whole, seem pessimistic that any of the ideas will significantly change the way they hire attorneys in the near future.
“It’ll be difficult to effectuate change,” says Sylvestri, “because the teaching of the law has become so institutionalized.”
Klein, however, thinks change may come over time. He cites the idea of allowing attorneys to practice part time. “It took a long time. At most of the firms in this area, it has become an accepted practice, but there was real resistance for years,” Klein says. The same is true for legal residency programs, according to Klein. “They may not be accepted at first, but given enough time I could see, slowly but surely, their gaining acceptance.”
He Says: Law School, Schmaw School
One scholar is advocating dramatic changes in how the legal profession regulates its members, but his proposal has drawn little if any support.
George B. Shepherd, a law professor at Emory University School of Law in Atlanta, proposes making law school optional and eliminating the bar exam. Instead, the market would regulate itself.
The legal profession should “return to the system that worked well for 100 years before 1927,” when the ABA began accrediting law schools and passage of a bar exam became a requirement for becoming licensed, Shepherd says. “One recalls a golden era of lawyers before 1927. It was an era of statesmen. The decline in lawyers’ reputations has coincided with the rise of accreditation and the bar exam.”
Law school should become optional, Shepherd argues, because the services lawyers provide are no more critical than those provided by other professions in which the practitioners need no advanced degree, such as accounting and business. In addition, lifting the hurdles to practice would allow low-income people better access to legal services and create more opportunities for minorities to become lawyers, he claims. According to Shepherd, “For even simple tasks that nonlawyers could do, you still have to hire a lawyer. This proposal will allow companies to hire people with the appropriate level of skills for the task.”
In addition, Shepherd argues, because of attorney accreditation standards, “once you graduate, you have to earn about $55,000 a year to be able to pay back student loans. That’s why you can’t hire a lawyer for under $60 an hour. It’s shameful. “Because of the ABA’s accreditation system, legal services are unavailable for the poor,” Shepherd asserts.
The critics are unconvinced. “I wouldn’t want to live in a society in which doctors and lawyers and people who have enormous ability to affect the society for good or evil practiced in an open market,” says Steven Smith, dean of California Western School of Law in San Diego and chair of the ABA’s Section of Legal Education and Admissions to the Bar. “I don’t think it would be healthy.”
“The licensing requirements aren’t perfect,” says Gary Blasi, a law professor at UCLA who became a lawyer through an apprenticeship under California law. “But I certainly wouldn’t support” eliminating law school.
Blasi says he believes consumers would be harmed by letting the legal market regulate itself.
“There’s a huge knowledge gap on consumers’ part,” he adds. “They aren’t in a position to judge whether they’re being ripped off or not. ... That’s the danger.”
Shepherd’s proposal “shows a confidence in market dynamics I don’t necessarily share,” says Lino Mendiola III of Austin, Texas, a hiring partner for his firm.
“We do need to do a better job of providing legal services to the poor,” Mendiola says, “but the answer is to make sure those services are properly funded with public funds rather than eliminating law school.”
As for Shepherd’s argument that law school accreditation requirements limit the number of minorities in law schools, Blasi says, “There’s a lack of diversity in the profession, and I think that’s because law schools place such heavy emphasis on the LSATs.” But eliminating law school, says Blasi, would be “treatment of a disease that’s well beyond what’s required to get diversity in the profession.”
But Shepherd is a true believer. “The fact that there are so many incompetent lawyers now is a testament to how bad the existing system is,” he says. “Given the history of the legal system and its apparent success before accreditation and before the bar exam, one can be pretty secure that things would be just fine without either of them.”
G.M. Filisko is a lawyer and freelance journalist in Chicago.