RE: Internships/Externships as a replacement for training.
Otway B. Denny, Jr. Chairman State Bar Board of Directors State Bar of Texas P.O.Box 12487 Austin, Texas 78711
Dear Chairman:
I had the chance to read Bradley J. B. Toben's "Thumbs Down on Mandatory Internships" (Texas Lawyer May 13, 1996). It was an excellent example of advocacy. Reading it, I realized that the elements that are underneath the debate probably should be discussed because without discussing the foundation, the debate can drift away from reality.
Once you have contact with law school graduates and practicing attorneys and realize just how woefully underprepared new lawyers are, the elements that go into discussing externships and other possible solutions are: "How much clinical internship style training does a professional really need?"; and, "Who has the responsibility to provide training and education to prospective professionals?"
The following discusses those real issues, if only lightly, and my proposed responses.
Sincerely yours,
Stephen R. Marsh
THE REAL ISSUES
AND SOME REAL ANSWERS
Two Real Issues
Every professional degree program except for law requires clinical internships or the equivalent experience. Only law school skips that requirement and the consensus is that before a law school graduate can be of any real use to any one, substantial training is necessary.
The real issues in discussing internships and similar training are:
1. How much training is really necessary.
2. Who should provide the additional training, and,
How much training?
30 law school semester hours of clinical training comes to 450 actual hours of training experience. No law school claims to provide more than 30 semester hours of clinical training and most claim to provide to the usual student somewhere between zero (0) and 10 (or 150 actual hours).
For comparison, to obtain a Masters in Clinical Psychology requires 450 supervised clinical hours. To go forward from that and to become a Licensed Professional Counselor requires another two thousand hours of supervised clinical internship.
The LPC professional program is generally considered a bare minimum for a professional for reasons beyond the scope of this essay -- but the solid academic conclusion is that at least 2,450 supervised clinical hours are necessary to make a professional.
For a new lawyer to have the equivalent in real clinical training in just class room experience requires 2,450 actual hours of experience -- in addition to the normal classroom style education. To gain that type of experience in class room simulations would take 163.33 semester hours.
An honest discussion or review will show that most people who are looking at the legal system would agree that law students need three years of coursework and about 2,400 or so hours of clinical experience to be useful as real lawyers -- the type that should be licensed.
For comparison, consider just how many legal recruiters are looking for people who have a bar license but less than a year or so (or about 2,400 hours) of experience.
So, Who provides the training?
There are three different ways to provide training, and three different groups that can provide it.
(a) The bar association. To reach 2,450 hours, Bar associations can provide mentoring and MCLE seminars. Mentoring is basically like an externship except the person who receives or is mentored gives nothing but moral satisfaction to the mentor (except adding to the conflicts of interest check) in return for the help.
Generally, to be a good mentor takes five to ten hours a week. Let us be generous and assume that each of five mentors per prospective lawyer would provide five hours a week each (or twenty-five hours of mentoring a week to provide the equivalent of clinical training).
At that rate, to reach 2,450 hours would take only 98.00 weeks or about two years.
We currently have about ten thousand untrained proto-lawyers and are admitting 2,500 a year who have no employment to provide mentoring. To mentor the current group of ten thousand would take only 50,000 lawyers donating 5 hours a week. To handle the 2,500 more a year (for a two year period each) would take only 25,000 more lawyers donating 5 hours a week or 250 hours a year (remember it takes two years and two weeks vacation).
Any mentoring program that proposes to provide sufficient useful training or experience basically requires a start-up of 75,000 lawyers each donating 250 hours a year, followed by 25,000 lawyers at any one time donating 250 hours a year in every follow-up year. It also assumes that all of the 500 lawyers who find "real" employment each year are mentored and trained outside of the program.
(b) Students. What students can find is externships. Traditionally, externships were unsupervised internships. The traditional quality of externships has been extremely low. Even when externs have volunteered to work for free, few law firms have been willing to accept them. J. B. Toben gave an excellent summary of the arguments against externships in his article "Thumbs Down on Mandatory Internships" (Texas Lawyer May 13, 1996).
The alternative, that works well for business schools (and which is required at the quality MBA programs) is pre-school externships -- i.e. employment history in the career field. This is inappropriate for law unless you want to require a year or two experience as a paralegal a requirement to go to law school. Some types of programs require just that sort of experience.
(c) Law Schools.
Law schools can provide supervised clinical internship experience. This is the norm in education. In every professional program except for law and business, the schools provide and coordinate supervised clinical internship experience both before and after graduation.
There are excellent reasons for this.
First, supervised clinical internships are a part of the educational process and so are provided by educational institutions. Having any other group responsible for them is the same as saying "we did not properly teach our students, so -- you do it for us."
Second, the schools created the problems we have now by making legal education into something that graduates large numbers of tuition charged (administrative overhead paying) students who are not properly trained. Those who create and profit from a problem should be responsible for solving the problem as well.
Third, schools can, better than anyone else, provide egalitarian access to training, rather than letting it rest on luck, family connections and random chance.
Law schools should do what all other professional schools do and that which no other group can.
(d) The forgotten group: Law firms.
Law firms used to provide the training. However, they provide training only for those graduates they hire (500 out of 3,000 each year) and the quality of the training has been going down.
We have a problem because law firms have been unable, and clients unwilling to pay for, the continued training and absorption of new lawyers.
While law firms may be able to reorganize and begin to train their own employees again (see the ABA publication Survival Skills for more on the loss of training inside of law firms and the reasons for it), there is no way for them to pick up the slack and provide that sort of intense training outside of the mentoring noted above.
The hidden alternative used to be tradition and now is not an alternative at all (or why I stated that there are three alternatives).
Conclusions
There are three real alternatives available to fully and properly educated law students. Only one of them works -- supervised clinical internships provided by law schools. The biggest barrier to those are the limits set by the ABA. The ABA limits should be scrapped, the beginning of which came with the ABA consent decree.
The following steps need to be taken to improve legal education and to create a proper environment for supervised clinical legal education.
1. To improve the law schools economics, Drop the ABA's approach to libraries, publish or perish, law professor's course loads and similar matters out of the year 1890 and require professors to teach twelve credit hours a term. Lawyers bill 1,700 to 2,400 hours a year. Law professors can work that much as well. Twelve hours in class, twelve hours reviewing and responding to in class written assignments and twelve hours working with students in clinical settings.
The total numbers come to 36 hours a week for about 32 weeks a year. In the other 22 weeks the professors can review and prepare lesson plans and keep up to date on their profession as well as take two weeks of vacation. This proposal asks only that Law professors cope with the demands of 1,800 billable hours a year ... and can keep the cost of change sane.
2. Add on a fourth year of law school devoted to supervised clinical internship experience. Three years is not enough to fully and properly train prospective lawyers. Together with summer clerkships and other programs, a final year of clinical work would properly train and prepare lawyers for the bar exam.
This clinical work could also be expanded to credit properly structured associate programs (with clear feedback and training protocols) and judicial clerkships (again, to the extent that they have clear feedback and training protocols) allowed credit towards the clinical experience.
3. Require that law schools provide 500 hours a year of clinical experience for each student they take for the next five years (thus students entering this year would have to be provided 500 hours of clinicals, in next year 1,000, in two years 1,500, etc.) as a prerequisite for admitting students.
Schools should only take as many students as they can teach and train.
As a corollary, the Texas State Bar should require that graduates from law schools have clinical experience or similar verified experience before they are allowed to take the bar exam. Students who go outside of Texas to avoid the requirements would quite simply need to live up to them before they came back -- at least if they wanted to practice law in Texas.
These three solutions meet the real problems and fit into the limits that reality imposes. They are a solution rather than passing the buck and I come to them only after disclosure and analysis of the real issues of "how much" and "who should provide." Once the real issues and choices are identified, there are no other solutions available.
Law schools can no longer take the money and then pass the buck
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