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Vol. 39, No. 1

Bar associations, law schools make strides in improving legal education

by Marilyn Cavicchia

Though there are still arguments here and there in favor of the status quo, most people who have been following the changes in the legal market seem to believe that something should be done about the long-standing format and structure of legal education.

But exactly what should be done—and what role should the organized bar, the legal academy, and other stakeholders play?

Those were the questions addressed—sometimes very boldly—by a panel during a joint program at the Annual Meeting of the National Conference of Bar Presidents, National Association of Bar Executives, and National Conference of Bar Foundations, in Boston.

The discussion was moderated by John E. Thies, past president of the Illinois State Bar Association and member of the NCBP Executive Council, and included the following panelists: David M. Schraver, immediate past president of the New York State Bar Association, Guy R. Cook, immediate past president of the Iowa State Bar Association, and Ilene Seidman, associate dean for academic affairs and clinical professor of law at Suffolk University Law School.

Bar associations must ‘shape our future’

“It’s critical that the organized bar be part of the discussion” regarding the future of legal education, Schraver said. Why? “If we don’t shape our future, somebody else will do it for us.”

Over the course of the year that he was president, NYSBA kept that discussion going in a number of ways, including via articles in both the bar journal and the bar newspaper.

In May, the bar convened a convocation on this topic, cosponsored by the New York State Judicial Institute on Professionalism in the Law, and bringing together speakers and attendees from the organized bar, law schools, and the judiciary.

To prepare, the bar held four three-hour focus group sessions around the state to help identify what the various stakeholders thought the important issues were. Those sessions were taken seriously enough that they were transcribed by court reporters so as not to lose any detail, Schraver said.

For Schraver and others in New York state, it’s important that the discussion of the future of legal education focus not just on making sure new law graduates are well prepared for the nuts and bolts of practice, but also that “they are absorbing the core values of the profession from Day One.”

The discussion has continued beyond his term, Schraver noted; a committee on legal admissions to the bar is very active, and currently being discussed in New York state is a potential change that would allow students to take the bar exam at the end of the second year rather than at the end of the third year. This would eliminate a common scenario in which a new law grad is not fully admitted to practice until a year after he or she graduates, Schraver said.

What purpose does the bar exam serve?

Though it might not work as well for a large, populous state with many law schools, Cook was hopeful about a current initiative in Iowa to institute “diploma privilege”—waiving the bar exam requirement—for graduates of the state’s two law schools who wish to practice in Iowa.

A diverse blue-ribbon committee put together by the ISBA looked at the issue of how best to relieve law students’ debt and end the period of “purgatory” that is created by taking the bar exam and then awaiting the results. Though there was skepticism toward diploma privilege at first, eventually, the committee arrived at unanimous support for this idea.

The committee dug into the question of what purpose the bar exam serves, particularly in a state where the passage rates are around 90 percent (which, Cook noted, makes the “weeding out” aspect less of a factor). “We became convinced, when we looked at it, that the bar exam doesn’t really do anything,” Cook said.

Study for the bar exam is a huge “cram session” that actually causes the exam-taker to forget other, more important information, Cook said. And to those who say that studying for the bar exam is the way they learned things like rules of evidence, Cook asks, “Isn’t that an indictment of your legal education?”

Initially, Cook said, there was “lots of pushback” to the notion of diploma privilege, in part because of tradition and the perceived need for prospective JDs to “pay their dues.” But support has been building, and the law schools at both University of Iowa and Drake University are committed to the idea, and to ensuring that law students are both prepared to practice and inculcated with ethics and civility. Diploma privilege will not exempt would-be lawyers from the character and fitness examination, Cook noted.

Learning to practice—by practicing

“I have really had it with this conversation,” Seidman said; this was her blunt way of saying that it’s time to set aside the debate over whether legal education needs to be fixed and move toward actually fixing it. A new “accelerator” program at Suffolk aims to do just that, Seidman said. Whereas several bar associations, foundations, and other organizations have incubator programs, Suffolk “would like to take up the challenge of doing that while they’re in law school.”

That is, rather than simply learning how to “think like a lawyer,” or even participating in a clinic, students in Suffolk’s Accelerator-to-Practice Program will actually set up a profit-making law firm—including a website and a marketing plan—as their capstone project. The client base for this in-school firm will be individuals and families of "average" income.

Similar to what Schraver said about his bar’s recent convocation, Seidman said that professionalism is central at Suffolk, along with the how-to aspects of law practice. “From Day One, we tell them, ‘This is not school,’” she said. “’This is the first day of your membership in the legal profession.’”

For the summer between the 1L and 2L years, participants in the Accelerator program will be seconded to a solo or small firm. The 2L year will be “multilayered,” Seidman said, with some doctrinal focus, but also a course called “The Legal Problems of Everyday Life”—which, as the name suggests, will cover the types of legal needs the average person might have.

There will also be coursework in the business side of lawyering, such as billing (including alternative billing structures), legal project management, document retention, and the use of technology in law practice, all leading up to setting up a practice during the third year and performing associate-level work within it. The students in this program will work closely with practicing attorneys, Seidman said, and will be covered by the malpractice insurance that currently covers clinical programs and faculty members’ pro bono work.

The Accelerator program is just getting started, Seidman said; participants will be recruited from this fall’s 1L class. As it develops, Seidman hopes it will be helpful to moderate means clients, to bar associations, which might borrow some tools and ideas, to the solo and small-firm lawyers who work with the seconded students, and, of course, to the students themselves.

Additional thoughts from a related program

The program described above was by no means the only one at Annual that took up the subject of the changing legal profession and how best to prepare today’s law students. For example, during a TED Talk-style program for NABE, two speakers made points that are relevant to this article.

Elizabeth G. Simcox, executive director of the Dauphin County (Pa.) Bar Association, gave a progress report from the NABE Task Force on Legal Education and Bar Admissions, of which she is a member. Reiterating what the panelists from the other program said about bar associations needing to play a role, Simcox said that while many stakeholders see the changes and problems affecting law students, “No one is out there to help them.”

Bar associations have been very successful with their traditional model of focusing on CLE, committees, and the like, Simcox said. But it’s critical, she believes, that they now embrace a new role—“assisting new lawyers” in ways they might never have before.

The NABE task force surveyed bar associations in order to come up with topics to cover in a guidebook for how bar associations can do just that. The guidebook, which Simcox said is almost complete, covers the following areas:

  • skills training;
  • trial advocacy;
  • mentoring programs;
  • financial aid;
  • counseling for those facing stress and other issues; and
  • incubator programs.

The guidebook will include links to all the specific programs it mentions, Simcox noted.

If anyone thought graduates of Ivy League and other top tier law schools were immune to the current legal employment crisis, Mark Weber, assistant dean for career services at Harvard Law School, disabused them of that notion.

Harvard is now seeing 50 percent fewer summer job opportunities at its job fair for 2Ls than it used to, Weber said, and he often tells students that despite being smart and hardworking—and going to Harvard—a job is “not going to fall into their lap.” More than ever, Weber said, “it’s an employer-driven market.”

Weber pointed to nationwide statistics that indicate that the percentage of law school grads who have secured employment in the legal field nine months after graduation has declined, from 91.9 percent in 2007 to 84.5 percent in 2013. More of them are now taking “JD advantage” jobs in which a JD is preferred but not necessary, he noted.

And the message is now getting out that law school is not necessarily the ticket to prosperity: Weber also cited the figures that show a steep decline in students entering ABA-accredited law schools, from 52,500 entering as 1Ls in 2010, to 29,700 in 2013.

Where will this lead? Weber sees a nationwide decline in bar membership—which, he says, makes it imperative that you reach and help the law students and new grads in your area. But be aware that this takes some skill.

Weber recounted sending a message to all the 3Ls at Harvard, asking how their summer went and reminding them of bar exam deadlines and other important details. The response? The classic Millennial TL;DR (Too Long; Didn’t Read), which means even this vital information didn’t get through.

What’s the problem? Weber loves working with Millennials and finds them to be “talented, bright, hardworking, and mission-driven.” But they’re also faced with “so much external noise” from social media and other sources that “you have to be brief.”

Essential in reaching law students and young lawyers, Weber said, is that your bar’s website and other materials be up to date and mobile-friendly—otherwise, you, too, might get the dreaded TL;DR, even from those who need the connections and assistance that only a bar association can provide.