REAL REFORM

The Real Problem

The real problem with lawyers is that there are too many of them -- and the "too many" are not trained at all.

Imagine going to see your dentist and having your teeth cleaned by someone who had never cleaned anyone's teeth -- and had never seen it done.

When you go to a new lawyer, that is what you get. Unlike any other profession, lawyers have no clinical experience and no internships. Nurses have semesters of internship experience. Dental technicians have hundreds of hours. Doctors have years as do accountants. But a new lawyer will most likely have never been in a courthouse before, will never have drafted a legal paper, and never before interviewed a client.

It used to be that law firms provided training to new lawyers. But then, new lawyers were paid so little that part of the interview process was determining that the new lawyer had an employed spouse who could support them both. Now, new lawyers are paid substantially more -- and often trained substantially less -- if at all.

The reason is that 3,000 lawyers a year are admitted to the Texas State Bar. The Bar paid for some legitimate statistical analysis and discovered that there are "real" jobs for only 500 of them. "Superstar" firms aside, the average lawyer is paid less than the average Texas school teacher, the average Texas nurse or the average patrol officer in New York City -- not counting the 2500 lawyers a year who fail to find employment as lawyers.

Since there is no training for these lawyers, they are "out there" with no skills, no training, huge debts (up to $60,000 or more) trying to practice law. And practice describes what they are doing.

The result is a torrent of ethics complaints, unfounded litigation (from attorneys who generally don't know how to tell the difference) and other problems.

What a Solution Requires

Solving the problem needs to be done with the following goals:

1) Provide a proper education for law students -- with the same requirements and basics that every other professional program now has.

2) Accommodate large law firms -- who have such political input that they need to be considered.

3) Provide a safety valve for inadequate law schools.

4) Implementation on a Texas level. For a number of reasons one can not expect the ABA to do anything to fix the problem.

5) Provide the information people need to make rational decisions.

Legislation to create a Solution

STATUTORY REQUIREMENTS FOR ADMISSION TO THE BAR OF THE STATE BAR OF TEXAS.

A. For Bar Admissions beginning in 1996:

No person shall be permitted to be admitted to the practice of law in the State of Texas unless:

(a) They have taken forty-five in classroom hours (approximately three semester hours) of specified Practice Skills Courses approved by the Texas State Bar Association; or,

(b) Their employer certifies that the employer guarantees that the person will receive from the employer the equivalent of the approved training program in a formal training program (approved by the Texas State Bar Association); or,

(c) They have at least two years prior experience in the practice of law as an attorney.

B. For Bar Admissions beginning in 1997:

No person shall be permitted to be admitted to the practice of law in the State of Texas unless:

(a) They have taken sixty class room hours (approximately four semester hours) of writing related instruction; or,

(b) Have published a co-curricular article that has required the equivalent amount of time in writing related instruction; or,

(c) Have written and submitted to a court, at least sixty pages of legal briefs (this includes appellate briefs) as a licensed attorney acting as either primary or co-counsel.

C. For Bar Admissions beginning in 1998:

No person shall be permitted to be admitted to the practice of law in the State of Texas unless:

(a) They have received a four year graduate degree in the study of law, including 2000 supervised clinical internship hours; or,

(b) They have received a three year graduate degree in the study of law, and one hundred hours of Continuing Legal Education; and at least 2000 supervised clinical internship hours or,

(c) They have received a three year graduate degree in the study of law, at least forty hours of Continuing Legal Education, and have had at least three years of supervised legal practice as an attorney [legal internship as an associate, briefing attorney or otherwise].

In addition to changes in the law regulating admission to the State Bar of Texas, the following changes should be made in the laws regulating Texas Law Schools.

LAW REGULATING ADMISSION OF STUDENTS TO JURIS DOCTORATE PROGRAMS IN THE STATE OF TEXAS.

(a) All persons applying to law school shall be provided a statistical analysis of the placement rate in Texas (16%), the average compensation in Texas ($25,000), and the alternatives to law school for education (e.g. entering a P.A. program which takes two years and has an average compensation of $55,000.00).

(b) Beginning the fall term of 1997, no Texas law school shall admit students to a Juris Doctorate program unless it can provide at least thirty credit hours of supervised clinical internship experience, and 2000 actual hours of supervised internship training. Only persons with a Juris Doctorate degree shall be allowed to take the Texas State Bar Exam.

(c) Any school offering a two year Juris Master program shall not be required to maintain or meet the ABA's standards for minimum library, writing or full-time faculty limits placed on law schools for accreditation. Such programs may (and are encouraged to) provide designated tracks for second year students including contract officer, tax accounting, bankruptcy paralegal, administrative law, regulatory services, EEOC compliance officer, ERISA program administrator, and law enforcement. Graduates of such programs shall be eligible to practice as paralegals as defined in the applicable codes (e.g. U.S.C. Chapter 11).

Non legislatively I propose that in the third year of law school, students be encouraged to form mutual support groups based on the geographic area (e.g. all the Baylor students who plan to move to Houston upon graduation would be in one group) they plan to practice in. After graduation, each group should be assigned to a mentor in that geographic area who would meet with them once a month.

The groups would be joined each year by that year's graduates who moved to the area and would provide the practical equivalent to a special purpose bar association on the old model of mutual support, education and self-mentorship. The last part of the proposed changes would be implemented by the Texas State Bar Association.

Conclusion

The proposed changes provide a real and proper education for law students -- with the same requirements and basics that every other professional program now has. The Langston Huges model may have been great in 1890 for classes of 20 students, but it just does not accomplish educational goals in the 1990s with classes of 200 students.

The proposed changes accommodate large law firms -- as long as they train their own people they can continue to operate as usual.

The proposed changes provide a safety valve for inadequate law schools -- they can become two year Juris Master's program -- and teach law students useful and employable skills at a greatly reduced cost. Many of the training tracks available for a two year program pay better (on the average) than current three year graduates can expect when they pass the bar exam.

The proposed changes are implemented on a Texas level, independent of the national scene and the national disaster.

The proposed changes provide pre-law students with the information they need to make rational decisions about whether to go into law school and whether to stay in law school.

We have disasters of incredible proportions that are building in the legal profession. On the one hand is a pressure is to educate students even less (in a world that requires more education) for the benefit of those who wish to make a fast profit from legal education.

On the other hand is the pressure to maintain the status quo without regard to the practical implications or the real world need of students.

Both pressures result in graduates without the necessary skills or training to practice law in todays' environment and a debasing of the educational requirements for a Juris Doctorate degree.

Already the debased educational requirements have resulted in thousands of graduates whose education is inadequate to professional standards.

(A true graduate professional program, in medicine, psychology, nursing, accounting or any other profession does not exceed a student teacher ratio of 4-to-1, provides substantial internship experience, and graduates students who are ready to practice their profession without supervision or further training. Anything less fails to meet the well accepted definition and requirement of modern professional standards).

The students deserve better. The public (including tort reform groups) is already demanding action and legislatures are considering drastic steps.

Either the legislature can see that the reforms taken bear a true relationship to improved educational goals, and result in improvements for all in the system, or the public can stand back and wait to see what happens from the brewing chaos. My proposals at least give the system a chance of better serving all.

Afterword

The hidden truths behind the problems facing the bar, and the ones that the legal education professionals are just beginning to deal with are: (1) legal education does not meet the needs of 95% of the graduates from law school and (2) the method used to teach most law classes (including the first year of law school) actually has a net negative input on students' ability to learn.

While many have suspected this, only recently have focused studies and analysis verified what was only a well founded, anecdotal suspicion. The result is that we now know that the evolutions that have taken place in law schools result in an "educational" experience that does not properly educate and one that does not prepare students to practice law in the modern environment.

The only benefit that the current method of teaching law students has is that it allows law schools to graduate about ten times as many students as the schools could graduate if they were providing a comprehensive and proper graduate level education. The current method results in a flood of new lawyers who are not able to properly practice law, with all the side-effects one would expect.

What has happened to law is the same as if medical school was suddenly reduced to three years with no clinical experience required before doctors were allowed to treat patients. Medical schools could graduate ten or twenty times as many doctors, but public health and the medical profession would suffer.

While the injury to the public and the profession are not as obvious, allowing Law schools to graduate students in three years with no clinical experience has the same terrible impact on the public and the profession as would allowing the same for doctors. Only by changing legal education to follow the model used by all other professions can we protect and preserve the profession and the public.

Bibliography

The most important sources have been cited here. The entire corpus is collected in Pragmatic Reform of Legal Education: A Critical Syllabus, which was the source of the research for this proposal.

Charles Richard Calleros, Variations on the Problem Method in First-Year and Upper-Division Classes, 20 University of San Francisco Law Review 455 (Spring 1986).

Julie M. Cheslik, Teaching Assistants: A Study of Their Use in Law School Research and Writing Programs, Journal of Legal Education, Vol. 44, No. 3 (September 1994).

J. M. Feinman, Teaching Assistants, 41 Journal of Legal Education 269-287 (1991).; see also Why Law Teachers Should Teach Undergraduates. Feinman includes two outlines.

Sandra Anderson Garcia and Katurah Presley, An Assessment and Evaluation Program for Black University Students in Academic Jeopardy: A Descriptive Analysis, 9 Journal of Community Psychology 67 (1981).

Kristine Knapland and Richard H. Sander, The Art and Science of Academic Support, Journal of Legal Education Vol 45, No. 2 (June 1995), 157-234, especially 225-234.

Mary E. Levin and Joel R. Levin, A Critical Examination of Academic Retention Programs, 32 Journal of College Student Development 323 (July 1991).

Cathaleen A. Roach, A River Runs Through It, 36 Arizona Law Review 667 (1994).

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