What’s going on in legal education? And what should bars do about it?

Volume 36 Number 3

Articles appearing in the Pennsylvania Bar Association’s bimonthly magazine, Pennsylvania Lawyer, usually generate scant reader comment, save for an occasional note or two showing up on the editor’s desk, according to bar Communications Director Marcy Mallory.

Not so, this winter.

A pointed exchange between a doubting pre-law advisor (“Dr. No”) and a more sanguine law school dean (“Dr. Yes”) debating the merits and future of legal education generated about 20 letters to the editor in less than a month.

“We’ve had to run excerpts of letters over multiple issues. We couldn’t fit it all,” Mallory says. “We didn’t think it would be controversial—but we’re not afraid to talk about an issue that needs to be discussed.”

The pro/con story, “Is Law School a Reasonable Choice for New Graduates?” struck a chord in Pennsylvania that is resonating increasingly in legal circles across the country. From the blogosphere to the corner office, from ivy-covered walls to courtrooms, debate and discussion over the present and future of legal education is intensifying. Unemployed and debt-ridden grads, frustrated firms, beleaguered deans, and a questioning Congress are all major players in the unfolding struggle to cope with the continuing evolution of the legal profession, a struggle that has been intensified by a feeble and uncertain economy.

Scrutiny and criticism of law schools and legal education methods and practices have never been higher—and many state and local bar associations are wondering what, if anything, they should do or say about it. The criticisms and changes surrounding legal education are not only provoking concern about the future of the profession among worried bar members; they’re also stirring some bars into action. Task forces, new programs, and different ideas—complemented by frank discussions along the lines of Dr. No and Dr. Yes—are emerging at several bars.

The hope, many bar leaders, educators, and observers say, is that these efforts will help provide solutions to the mounting problems surrounding the legal education environment. It is a situation, many say, that requires hope and change—and fast.

Warns Jim Chen, dean of the University of Louisville (Ky.) Louis D. Brandeis School of Law:  “We need to move like we’re Google or Apple. Instead, we’ve been moving like we’re Kodak. It’s getting to the point where it’s do or die.”

 

From a simmer to a boil

Low-key criticism and questions of the effectiveness and value of legal education have been building for the last several years. Many students and young lawyers have long complained about escalating law school tuition and the six-figure loan debts that many lawyers carry with them, even years after they graduate.

At the same time, increasing numbers of judges and experienced attorneys have taken law schools to task for graduating lawyers who are long on legal theory, but woefully short on legal practice. And the once-traditional model of hiring new graduates and giving them a year or two to learn on the job has been disappearing under the weight of clients no longer willing to pay for such training.

“Law firms are not hiring out of law schools any more,” says Heather Sowald, a past president of the Ohio State Bar Association who chaired a 2009 bar task force on legal education. “We can’t pay them six figures for knowing nothing.”

At its most recent Annual Meeting, in Toronto last August, the ABA House of Delegates passed a number of resolutions pertaining to legal education. Among them was 10B, which has come to be known as the “practice ready” resolution because it urges legal education providers to ensure that law school graduates have practical skills and knowledge, gained through clinical work and other means. The resolution was submitted by the New York State Bar Association; joining NYSBA in proposing 10B were the New York City Bar Association, the Ohio State Bar Association, and the ABA Young Lawyers Division.

In a seeming perfect storm for the profession, the economic downturn of 2008 sparked unprecedented lawyer layoffs, sparse hiring, and increasing numbers of unemployed and underemployed law school graduates—exacerbating concerns about debt and inexperience and attracting more attention to the state of legal education. In the last 18 months, the Wall Street Journal, USA Today, and the New York Times—the three largest-circulating newspapers in the country—along with several other national media outlets, have written extensively about legal education woes.

 

Attention, and action

The attention paid to legal education has intensified over the last several months in unusually public ways. Since mid-2011, two U.S. senators, Barbara Boxer (D-California) and Charles Grassley (R-Iowa), have written four letters to ABA leadership, questioning the ABA’s law school accreditation process with concerns about potentially misleading employment data publicized by the law schools that the ABA accredits.

Additionally, Boxer and Sen. Tom Coburn (R-Oklahoma) have asked the U.S. Department of Education’s inspector general to conduct “an examination of American law schools that focuses on the confluence of growing enrollments, steadily increasing tuition rates, and allegedly sluggish job placement.”

In a recent response to Sen. Boxer, ABA President Wm. T. (Bill) Robinson III provided detailed information from the ABA Section of Legal Education and Admissions to the Bar regarding significant changes it has made and is considering. This letter and memo, along with many other resources that highlight recent actions in the area of legal education and accreditation, are available here: www.abanow.org/issue/?legal-education-law-school-accreditation.

In what is viewed by many as an embarrassment to the profession, more than 50 unemployed and underemployed graduates of 15 law schools have filed class action lawsuits against the schools, alleging that they committed fraud by presenting misleading employment and earnings data about their graduates as an enticement to prospective students. 

The lawsuits came as the Villanova University School of Law was publicly censured by the ABA last summer for “reprehensible” conduct in reporting inflated GPAs and LSAT scores for incoming classes, and the University of Illinois College of Law admitted last November to at least six years of similar score-inflating techniques. Villanova was found to be in violation of the ABA’s Standard 509, which requires that accredited law schools publish basic consumer information, including both admissions and career placement data, “in a fair and accurate manner reflective of actual practice.” Schools that violate this standard risk losing accreditation.

On the subject of placement data, another resolution passed by the ABA HOD in August was 111B, which was submitted by the ABA Young Lawyers Division and also proposed by NYSBA, the ABA Law Student Division, and the ABA Section of Antitrust Law. 111B urges greater transparency among accredited law schools in terms of how they report—including to prospective law students—such data as the exact nature of their graduates’ employment and the actual cost of law school education, including cost of living.

 

A movement that gained force online

A quick look around the Internet shows a swelling tide of discontent and frustration with the state of legal education today among students and recent graduates—and indeed, blogs are where many observers first noticed the rumblings that have gained momentum and mainstream attention in the past year or so. Blogs such as Epic Fail: Law School Disaster, Inside the Law School Scam, and Value of a Law Degree abound, while websites such as abovethelaw.com post stinging stories and critiques of law schools and the attorney job market.

Among the most vocal critics has been Law School Transparency, a group formed in 2009 to push institutions for the release of more and better jobs data, and to drive down law school costs. The group has been especially critical of the job placement numbers advertised by many law schools.

“We have a broken education model,”
says Kyle McEntee, an attorney and
executive director of Law School Transparency. “The way we train lawyers is not working for students, it’s not working for the profession, and it’s not working for clients.”

 

Deans under pressure

Many veteran lawyers—and, by extension, bar associations—are concerned about education models that focus more on theoretical law and less on practical, or practice-ready learning for law students. Massachusetts Bar Association President Dick Campbell frets over the continued anecdotal stories of lawyers who can’t find their way to courthouses or who come to court unprepared or unknowledgeable—a problem that he and others say circles back to legal education.

“The law schools effectively have no skin in the game,” says Campbell, who launched a bar task force examining the state of legal education in New England. “After the students graduate, they’re not at risk if their graduates don’t get jobs.”

For their part, many deans say their jobs are more challenging than ever. “Deans are under pressure from all directions,” says Jack Boger, dean of the University of North Carolina School of Law. “You need to have good US News & World Report numbers, keep standards high, make sure you don’t misstate your number, keep tuition low, and keep applications up.”

One unnamed bar leader who has spoken with many law school deans over the past few years says that the increasing criticism, coupled with the pressure to maintain high US News & World Report rankings and spend more time away from school raising funds, “makes the [dean’s] position not very attractive,” and is driving many into retirement.

A database compiled by Mississippi College School of Law Dean Jim Rosenblatt appears to bear that out. The list shows that 32 of 199 law schools—more than 15 percent—have hired new deans in the last year, while another 55 schools have hired new deans in the last one to three years.

One soon-to-retire dean, Jeff Shields of the Vermont Law School, believes that the time is ripe for state and local bar associations to take a more active role in shaping the discussion and developing the solutions to tackle the thorny issues of legal education, and how they relate to the future of the profession.

“They need to work with law schools to look at the skill mix needed for starting jobs,” he says. “They need to use this difficult situation to push for improvement.”

Stephen Gallagher, a longtime bar consultant and leadership coach in Pennsylvania, agrees.  “The bar association is a third party,” he says. “They can work with the law schools.  They can work with the supreme courts.”

Leaders at many bars say that is happening with more frequency and with more urgency, as concerns continue
to mount.

 

What can bars do?

While many of the issues surrounding the future of legal education have long been fodder for state and local bar association discussions, the increasing concerns over the last few years have generated heightened interest from bars, many leaders say. For some bars, legal education-oriented task forces and special meetings have
become one way to bolster the dialogue among the stakeholders.

“One of the roles of the bar is to be a convener, and state bars are uniquely positioned to provide a broad and a local perspective,” says North Carolina Bar Association President Martin Brink-
ley, who co-chaired a one-day summit in 2010 that attracted more than 100 bar members, along with the deans of all seven law schools in the state.

In addition to raising the profile of legal education issues, Brinkley says, the summit opened discussions that continue today, noting that he and the bar’s executive director, Allan Head, have met individually with the seven deans to discuss suggestions made at the last summit, and to lay the groundwork for a follow-up meeting.

“It helped us focus our attention on the changes that are happening,” UNC Dean Boger adds. “I think there’s going to have to be a lot more interaction and communication between law schools and the bar.”

Similar dialogue has also been successful in neighboring South Carolina following a 2008 task force that led the South Carolina Bar to appoint liaisons between the bar and the state’s two law schools, says bar President Marvin Quattlebaum, who chaired the task force. The liaisons meet regularly with their counterparts, Quattlebaum notes.

“We have very close relationships with our law schools, and that’s a good thing,” he says. “We have very frank and open communications.”

In Massachusetts, task force member Marc Moccia—a 2011 law school graduate familiar with law school debt and daunting job prospects—thinks the Massachusetts bar’s task force
can be a “good catalyst for change.” It was important for bars to reach out to law students not only to improve legal education opportunities, but also to be a source for inside information on the profession, he believes.

While task forces and special programs can be effective for bar associations in the legal education debate, they can be sources of frustration, as well. In Ohio, several proposed changes and recommendations from the bar’s 2009 task force have been stalled in the state Supreme Court, which is responsible for implementing the changes.

“The [state] bar is still trying to push through some of the changes,” Sowald says, “but some law schools are just resistant to change.”

 

Innovative programs

While task forces and summits often lead to promising solutions, many bars and observers also recognize it will take more grit, innovation, and persistence to make changes in legal education that can help new lawyers adapt to changes in the profession.

The New Hampshire Bar Association, in partnership with the judiciary, state bar examiners, and the University of New Hampshire School of Law, has developed a program that allows select second- and third-year law students to skip the bar exam in order to gather more practical clinical and actual legal knowledge while still in school.

Now in its fifth year, the Daniel Webster Scholars Program has earned praise across the legal community in New Hampshire and drawn interest from other states eager to implement more practice-ready programs, according to state bar President Larry Vogelman. The bar has two members on the steering committee for the program.

“Ideally, this is what law school education should be about,” says Vogelman, himself a former law school professor. “I was never thrilled with teaching by reviewing other lawyers’ mistakes. This is a radical change in the practice of law, here.”

Many bars are also developing their own programs to help meet the need for more practical knowledge, particularly among new law grads who hang out a shingle right after they pass the bar. For example, the Columbus (Ohio) Bar Association’s incubator program for new lawyers going solo (see “Increased outreach for solo lawyers,” page 9) is preparing to enter its second year with a waiting list and plenty of cooperation from law firms, educators, and the Columbus Bar Foundation, according to Jill Snitcher McQuain, the bar’s executive director.

“It’s the right thing to do in this job market,” she says.

Sowald praises the incubator program but says bars must also continue to encourage open dialogue in the legal education community, one example being a pair of articles by Jason M. Dolin, an adjunct law professor at Capital University in Columbus. Published last fall in the OSBA’s Ohio Lawyer magazine, the articles look critically at how law schools report employment numbers and the grim employment prospects for new lawyers.

Wrote Dolin in one article, “It is time for law schools to start providing real employment rates to their applicants. The overall number they use is significantly higher than the ‘real number’ that has meaning to most law students. This is not rocket science.”

Louisville-Brandeis Dean Chen, who serves on the boards of the Louisville Bar Association and the Louisville Bar Foundation, has taken some
of his perspective and put it into his blog, Jurisdynamics, and a monthly column for the LBA’s Bar Briefs

“Law schools are extremely unreflective about what they are doing and about the needs of their students,” he wrote on his blog last fall. “We make little or no systematic effort to find out about what lawyers need to know
to do their jobs or to think about
how that may change over the next few decades.”

Gallagher, meanwhile, advocates a more aggressive approach by bars. “Bar associations need to get into the experience of the education,” he says. “The bar should come up with the skills that should be taught. Unfortunately, bars don’t see themselves in the education business. What an opportunity that is right now.”

While South Carolina’s Quattlebaum agrees that bars could do a better job with CLE offerings and other educational initiatives, he says they also need to do it carefully and in concert with law schools in their jurisdictions.

“I’m not sure the bar is in the same business as law schools,” he cautions. “We can’t step in and do what law schools do. But we can work collaboratively with law schools—and provide CLE opportunities.”

 

No simple solutions

Although there might be some debate about what role bars can play in sorting through the state of  legal education, there is little doubt among many leaders that
bars at every level need to get involved.

“It’s not appropriate for bar associations to stick their heads in the sand and just ignore this,” says the MBA’s Campbell. “Bar associations should not be passive. They should be active in improving things. It’s our profession. We have to do something.”

Change continues to be a driver, as law schools face their second straight year of double-digit application declines, the increasing threat of more suits from frustrated, jobless grads, and the possibility that a disillusioned Congress might force them into revealing more data—and possibly take over the accrediting process.

One such change might be in the number of law schools: Vermont’s Shields predicts a 10 percent decline in the number of ABA-accredited law schools in the next decade.

Also predicting a decrease in the number of law schools is Thomas Lyons, a past president of the Rhode Island Bar Association and past member of the Executive Council of the National Conference of Bar Presidents. Lyons, a frequent speaker on legal education, was heartened by what he recently heard from a fellow panelist, a dean from a third-tier law school. “She said, ‘We know there won’t be 200 law schools,’ ” he recalls. “ ‘We want to be a survivor.’ ” This survival instinct, Lyons believes, might drive some schools to develop innovative programs and approaches in order to demonstrate that they are a good choice and a good value for prospective students.

Another dean at a law school where Lyons spoke recently said reducing enrollment is a real possibility, particularly given current economic realities.

But Chen dismisses the notion that law schools must somehow drastically cut the number of graduates hitting the legal marketplace. “You’re mortgaging your firm’s future if you don’t bring in new, young lawyers,” he says.

Lyons agrees that it’s important not to take too dim a view of the future, particularly the quality and preparedness of recent graduates. In working toward improvements in legal education, he says, “We can’t lose sight of the fact that we turn out some terrific lawyers.”

Law School Transparency’s McEntee and others say they will continue to press the ABA to make more rapid changes to its law school accreditation review process. McEntee praises a recent move by the ABA Section of Legal Education and Admissions to the Bar to require significantly more detail and an accelerated timetable in how law schools report their graduates’ career placement data to the ABA (for more information, visit www.abanow.org/2011/12/aba-section-of-legal-education-and-admissions-to-the-bar-improves-collection-publication-of-job-placement-data). But he also believes those changes were too long in coming. State and local bars, he adds, can use state and local licensing laws to put more pressure on law schools to reveal more information about jobs and admissions data.

“These are people at the pinnacle of the profession,” he says of bar members and leaders. “They should care about the health of the profession. That’s part of our obligation to the profession.”

Campbell says that concern about legal education is spreading in the bar community. He also sees it as part of the bigger picture on the future of the profession as a whole.

And that makes finding answers a bit more complex.

“Simple solutions are not likely to be found,” he says. “This should be a multiyear initiative.” BL

Increased outreach for solo lawyers

 

To many bar leaders, the time for new lawyers to hang out their own shingles has never been more perilous—not just for them, but for the profession, as well.

Several bar leaders and observers are increasingly concerned about how the lack of practical knowledge—widely known as “practice-ready” skills—is combining with the poor job market, high student loan debt, and the glut of new lawyers to create scores of inexperienced new attorneys who are practicing solo.

“It’s a troublesome scenario,” says North Carolina Bar Association President Martin Brinkley. He continues to hear tales like that of the new lawyer practicing from his bedroom in his parents’ home, and the lawyer who sheepishly asked an older attorney, “What’s a motion to withdraw?” Many of these lawyers, he says, have a tendency to get in over their heads on cases, increasing the risk of malpractice. That, in turn, drives up insurance costs for all lawyers while reflecting negatively on the profession.

With those concerns in mind, some bars are stepping into the breach.

The Columbus (Ohio) Bar Association just completed the first year of an incubator program that gave eight new lawyers a leg up on solo practice, says Jill Snitcher McQuain, the bar’s executive director.

“We knew the pitfalls that solo practices face,” she says. “This is a combination of education, mentoring, networking events, and best practices.”

Under the program, eight selected new graduates—known in the bar as “Inc-lings”—were provided small offices and a joint conference room and reception area, all in the same building as the bar, with the building’s landlord providing free rent. A city law firm donated used office furniture, and a technology firm provided in-kind services such as Internet and computer hookups. All the budding lawyers needed to provide was a computer, a business plan, and $350 a month to help cover the bar’s overhead costs.

In addition to the office space, the bar also provided a host of services aimed at new lawyers, including: mandatory ethics training, introductions to local judges and lawyers, tips on managing a business, and access to an on-site mentor from the bar. The bar required that the new lawyers take on pro bono cases upon completion of the one-year program, McQuain adds.

Feedback on the first group was positive, she says, with all of the lawyers ready to move out on their own and feeling being better prepared to go solo.

The South Carolina Bar is also increasing its efforts to reach out to both new and more established solos—a by-product of the bar’s 2008 legal education task force, says bar President Marvin Quattlebaum. The bar’s first conference for solos, last year, produced a large turnout and set in motion plans for a similar conference again this year.

Other bars—many of which cite The Missouri Bar as a model to emulate—have added such conferences in recent years, in recognition that those venturing out on their own require special outreach from the bar.

“When they’re going solo, they have different needs,” Quattlebaum says.

—RJD

For more information

 

In focusing mainly on bars’ responses to the changes and challenges in legal education, we could not give a fully detailed picture of the many
factors at play and the way the situation continues to unfold.

For further context and to stay abreast of ongoing developments, we recommend—along with the many blogs and other publications that have been covering these topics—visiting ABAJournal.com. These three recent articles might be of particular interest:

 

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