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Legal Residency Proposal Dodges Meaningful Reform

PROGRAM WOULD SERVE NO TANGIBLE BENEFIT TO STUDENTS

Even math-challenged attorneys can tell you that four plus three plus two equals nine. That number, by itself, represents a lot of things to different people, from a Ted Williams jersey to a cat’s lives to the magical ingredient in Herman Cain’s elixir for tax reform. But if a new idea comes to fruition in the legal field, the number nine will also represent the minimum number of years that a college-bound freshman would have to wait before landing a job as an attorney.

Recently, Rutgers School of Law Dean John Farmer, took the position that the law profession is broken and that the magical cure-all to the myriad of persistent problems is the legal residency. Like its medical counterpart, it would theoretically place newly minted lawyers at law firms for two-year stints at cut-rate salaries. In these positions, attorneys would presumably gain practical experience with law firms that would be awash with skilled, educated, cheap labor. Dean Farmer’s plan is further couched in fluffy language about the need to make legal services available and affordable to people priced out of the current system, and that by hiring a bunch of residents, law firms would be able to serve this important function. So let’s take a big picture look at what is necessary to become a lawyer under his plan.

Essentially, it amounts to four years of undergraduate education (and tuition), three years of law school education (and tuition), and two years of an underpaid residency post. Given that the idea won’t reduce the amount of money going to institutions of higher learning, it’s no wonder this gem comes from a law school dean. The idea also doesn’t appear to have been well thought out.

We practice law, not medicine. Now I don’t mean to downplay the importance of the work of attorneys, but it basically includes research, analysis, application, writing, and for some, representation in court. To falsely equate the amount of training for that to the amount needed for medical diagnoses and surgeries misses some very key distinctions between the professions. Doctors hold the health and well-being of people in their hands, literally. They need practical, hands-on learning experiences, and a lot of them, in order to be entrusted with such responsibility. Lawyers also need practical experience, but truly innovative plans to reform the field can integrate those experiences into a three-year law school program. They’re called clinics and externships and co-ops, and they keep the burden of equipping lawyers with practical skills with those who are paid to bear it — the law schools. Might something similar to a residency be important to attorney development? Sure, and the viability of such proposals should be considered. But too many members of academia seem to be floating these ideas as a way to avoid making meaningful changes to legal education rather than to genuinely help students.

Look at who stands to benefit from a legal residency program versus who stands to sacrifice. The undergraduate institutions still get to educate and collect from students eager to obtain the bachelors degree that’s required to enter law school. The law schools still get to keep their archaic three-year curriculum and pocket three year’s worth of tuition. The law firms don’t need to change the pay structures of partners or more senior associates, and they’ll be theoretically overrun with new recruits who they can now pay relative pennies to while the partners reap the financial rewards. Sure more people might be able to gain access to legal services, but is this really the best way to go about ensuring that? Are the large law firms as currently constituted the best vehicles to drive this change forward? Given what they’ve done already, do we really trust them with this important task (some would say they are not)? Once again the burden will be borne by those in the worst position to do so, the law students and recent graduates. They’ll have seven years worth of education loans, likely in the hundreds of thousands of dollars. After that, they can look forward to two more years of apprenticeship at a paltry salary as compared to their fellow lawyers as interest accumulates on those loans, with no job waiting at the end of it. And the dean’s answer to this? “The law firms should be required, under this proposal, to offer stipends to help those residents who don’t make the cut but have debt burdens.” So not only do law schools continue to receive what amount to federal subsidies in the form of federal graduate student loans, now they get to further justify high tuition rates by saying that law firms will be required to provide debt-laden former residents with stipends to cover loan repayment after school? Proponents are likely to argue that students and recent grads do benefit from the proposal, in the form of real-world experiences and networking opportunities. Sure, but is this really the best way to open up these benefits to students and new attorneys?

Administrators should be asking what combination of in-class and practical education is required to train an attorney as part of a law school curriculum. That’s their starting point and it’s the biggest issue I have with the dean’s proposal. He wants to increase the requirements for law students and recent graduates not because that added experience is necessary to train a lawyer, but because higher-ups in the legal education field want to have their cake (tuition) and eat (spend) it too. Proposals like this make it appear like the legal education industry is making every effort to wring out every last concession and alteration from students and employers in order  to avoid any changes to the ways in which they the schools 1) educate students, and 2) get paid.

At its heart, the law school is operating just like a law firm. It’s made up largely of lawyers. Those at the top — partners, deans, and professors — profit off of the efforts and payments of associates and students. The system becomes incapable of meaningful change because those at the top cannot and will not contemplate a decrease in their share or a cut in unnecessary overhead costs. Thus, you get the nonsense that the mouthpieces of these profit-making enterprises regularly regurgitate in print and at conferences.

Because law school is an essential and rewarding experience, it has to be saved from itself. The foundation of legal education reform should be a desire to equip young lawyers with the skills necessary to serve the people. School administrators need to look themselves in the mirror and ask whether should really take nine years of higher education to do so. If anyone can answer the question in the affirmative with a straight face and back it up, I’m happy to listen. More likely, the answer is a resounding ‘no.’ And if it is a ‘no,’ then something far more cynical is going on in the schools and firms of our profession.

Jon Cohen is a founding partner at Boston MicroLaw, LLP, a practice of business formation attorneys and general outside counsel for small businesses in Boston and Cambridge, MA. 

Five Hot Tips to Help New Lawyers Thrive in a Down Economy

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Things have been rough for new attorneys this year. Lately, it may seem like the system was built to keep us in a perpetual state of unemployment. Hungry Hungry Lawyers has scoured the web for news stories to help perk up your spirits and has developed these tips to guide you on the path to success.

1. GIVE UP

It has become notoriously difficult to find a job in a down market flooded with new attorneys competing for every position. However, progressive game theorists at Nebraska University have devised a unique workaround to this problem: Don’t be a new lawyer. This is a fantastic strategy. You can’t struggle to find a job that you are not looking for. So, stop looking for it.  Pow, struggle over. The theory seems solid. If you are no longer a lawyer, then you cannot be an unemployed lawyer, which is basically the same thing as being an employed lawyer. So, stop being a lawyer. It’s as good as getting a job.

In fact, the two-moves-ahead-of-us Cornhuskers at NU are so enthusiastic about the prospects of non-lawyers that they advise people to start not being attorneys before they go to law school. Apparently law school is hard. And expensive. So, why pay to be an unemployed lawyer when you can be a non-lawyer for free?  If you’ve already been to law school, no problem. Just edit the experience off your resume. The good news is that if you remain unemployed long enough, the student loan collectors will come and take your license. And then you’ll be an officially non-certified non-attorney.

2. WAIT UNTIL LAW FIRMS LET YOU WORK FOR LESS

The legal job crisis is largely the fault of new attorneys. Why? Because we make too much money. This is why law firms cannot afford to hire us. In fact, I’m always explaining to my student loan officer that the reason I can’t make this month’s payment is that I’m grossly overpaid and consequently unemployed. Realizing the salary burden generated by unemployed lawyers, the Dean of Rutgers Law School-Newark, John J. Farmer, Jr., has proposed that we give law firms a break. Specifically, if we start calling new lawyers “residents” and “apprentices,” then law firms will give those people less money = problem solved. Once law firms agree to stop paying us so much, then we won’t be making too much money and the law firms can hire us.

3. BE LESS USELESS

According to a scientific poll of one 3L at a law school in Cincinnati, new attorneys can’t do anything. This self-described useless law student makes a point. If new lawyers learned to do a thing, or perhaps many things, then perhaps law firms could afford to pay them the exorbitant salaries that currently stand as a bar to employment. This is why we recommend that law schools start doing two things: 1. Prepare students for the real world. 2. Develop some kind of post-graduate residency program to cultivate those practical real-world skills after graduation. New lawyers — those who received their J.D.s last May — will particularly benefit from this kind of program once they’ve re-enrolled in school and completed it in 2016. Some new lawyers may not be excited about this “do-over,” but just because you studied law for three years doesn’t mean your school taught you anything. Serves you right for learning wrong.

4. DON’T PANIC!

Some smart guy blogging over at Harvard Law is a bit unnerved by all this jittery law-school reform talk, and he’s absolutely right. With 25 percent fewer people wanting to be new lawyers, the legal academy is in an uproar. In the afore-linked blog post, Scott Burris, who is a professor at Temple Law, makes a good point: Just because the world is going to hell, and none of us have jobs or the skills to perform the jobs we don’t have, that doesn’t mean that students should stop paying for three years of law school. Burris writes that there are lots of important things that law schools should start teaching students. They just shouldn’t stop teaching all the stuff that 3Ls in Cincinnati now tell us are useless (Editor’s Note: Mr. Burris has responded to this post in the comments below, and believes his position has been mischaracterized). Likewise, John Thies, President of the Illinois State Bar Association, points out that just because law school needs to change doesn’t mean that us new attorneys should graduate with anything less than $150,000 in student loans. Thies, who argues that law-school debt of this magnitude is “unsustainable,” also agrees that we shouldn’t do too much to disrupt the system that has sustained that debt for decades. Long story short, don’t panic or disrupt the status quo. Just wait until the tables have turned, you’re an experienced attorney and it’s your job to not hire overpaid, underskilled new attorneys. Or maybe become a law professor, there seems to plenty of money in that.

5. WANT TO BE EMPLOYED MORE

According to experienced Boston attorney Gabriel Cheong, the only thing standing between you and success is “Drive.” Cheong defines Drive as “the desire to succeed,” and calls it, “the only thing that makes us successful.” (Also, P!nk songs are involved somehow, but as new attorneys, we lack the experience to understand that part.) Based on Cheong’s Drive Doctrine, it’s clear that if you find yourself unemployed, this is not a result of a lousy economy or the simple arithmetic that shows more applicants than jobs, but rather your own failure to want to be employed more. If you’re unemployed, you lack drive. The solution: Just acquire some bootstraps and hoist yourself up by them. It’s also plausible that you have drive, but your drive is not to be employed. Perhaps you are unemployed because you had a greater desire to succeed at not getting hired. Which means you’ve unwittingly manifested your greatest desires. Congrats, friend.

ABOUT THE AUTHOR: Dave Brown is a founding partner of Boston MicroLaw, LLP, a practice of small business attorneys and business formation lawyers located in Boston, MA. He used to think Drive was a Ryan Gosling Movie, but now he believes Drive is the Secret To My Success, which is a Michael J. Fox movie.

Why ‘The Atlantic’ Is Only Half Right About the Legal Job Market

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AND HOW IT SPREADS A FAULTY PERCEPTION ABOUT THE DEMAND FOR NEW ATTORNEYS

It’s hard to blame The Atlantic for reaching what would appear a perfectly logical conclusion: That an abundance of unemployed attorneys signals a diminished need for new lawyers. If only this were true.

In an article published earlier this week, business writer Jordan Weissmann points to plummeting law school admissions — down 24 percent over the last two years — as a solution to the glut of jobless lawyers flooding the market: “The last thing the economy needs is thousands of additional J.D.s sitting around with no work and $125,000 of grad-school debt hovering over them.” Weissmann goes on to suggest that a decline in new lawyers, which he describes as a “correction” will help restore “sanity” to the job market. Again, this is perfectly logical, but it’s also incorrect and it’s indicative of a widespread misperception of what’s really happening in the legal industry.

There is a faulty perception among misinformed observers the legal services market that suggests the sharp, large-firm hiring freeze correlates to a lack of demand for legal services. And while Weissmann does a commendable job explaining how large firms lost the need for new associates, he appears misguided about the true need for more lawyers. Contrary to what Weissmann is reporting here, the need for attorneys is actually quite significant, and the industry’s failure to meet this need has bloomed into a major problem threatening the integrity of the American justice system. The fact is, middle-class Americans need lawyers and the large-firm business model has made them nearly inaccessible. Meanwhile thousands of new graduates are unemployed, but lack the resources to serve the untapped middle-class market.

The most significant issue affecting the legal market is not an oversupply of service providers, but  rather an abandonment of the middle-class consumer. Most middle-class clients can’t afford $200-300 per hour for legal services, but also make too much money to qualify for pro bono assistance. This leaves many people who need legal services trapped in a position to represent themselves on a pro se basis. The problem is so bad that in 2011, the World Justice Project ranked the United States 11th out of 11 high-income countries in providing access to justice. In 2012, the Massachusetts Supreme Judicial Court took note of the problem in its state, reporting a growing trend of self-representation in the Commonwealth’s trial courts, with 75 percent of parties in both the Housing Court and the Family & Probate Court appearing on a pro se basis. Meanwhile, new attorneys have been cast off by large firms to cut costs, so there lies a resource of licensed legal service providers who don’t know how the first thing about running a legal practice or representing the people who need them.

Gillian K. Hadfield, professor of law and economics at the University of Southern California told the New York Times last month that the problem is not an abundance of lawyers. “We have a significant mismatch between demand and supply. It’s not a problem of producing too many lawyers. Actually, we have an exploding demand for both ordinary folk lawyers and big corporate ones.”

While Weissmann suggests the legal market is suffering from a simple supply and demand problem, the real issue at play is the absence of a mechanism that would connect attorneys with a market that desperately needs them. The solution to the so-called Justice Gap and the so-called Employment Gap is one in the same: Pair underemployed attorneys with underserved middle-class clients. Last year, former U.S. Attorney Kendall Coffey said it’s imperative that law schools train law students in practice management and that experienced attorneys volunteer as mentors to help a new generation of lawyers extend services to the middle class.

“Ironically, while thousands of new law graduates fret about the chronic joblessness that awaits them, tens of millions of Americans need attorneys but cannot afford them,” Coffey wrote. “And much of the unmet need rests in America’s middle class, which is neither rich enough to pay $250 an hour for lawyers nor poor enough to qualify for legal aid organizations.”

Weissmann’s incomplete analysis suggests that winnowing the supply of attorneys  will restore order. This ignores the reality that the economics of the legal industry have changed permanently. Even in a strong economy, it’s not likely that corporate clients will resume paying for junior associates now that they know they don’t have to. Meanwhile, the wait-and-see approach would continue to expand the Justice Gap and leave an unserved market in the lurch. The fact is that a reduction in law-school applicants, as Weissman suggests, is not the jolt of adrenaline that will shake the job market back to life. Instead, it will take an industry-wide commitment to change, encompassing law schools and large firms, to meet the need for legal services with people trained to provide them.

ABOUT THE AUTHOR: Dave Brown is a founding partner of Boston MicroLaw, LLP, a firm of small business attorneys in Boston, dedicated to meeting the small-business needs of middle-class clients. He also served as a Northeastern University School of Law Legal Fellow researching potential solutions to the Justice Gap and the Employment Gap, so reading J.H. Weissmann’s article made him just a little sad.

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BC Law Dean Thinks It’s Time to Inform Naive Undergrads

SCREAMING EAGLE: Vincent Rougeau, Dean of BC Law, says it's time to inform undergrads on the realities of law school.

BUT MANAGING EXPECTATIONS WILL NOT MAKE A BETTER LAW SCHOOL

SCREAMING EAGLE: Vincent Rougeau, Dean of BC Law, says it's time to inform undergrads on the realities of law school.

SCREAMING EAGLE: Vincent Rougeau, Dean of BC Law, says it’s time to inform undergrads on the realities of law school.

The condescending notion that prospective law students need to be educated on “reality” in order to “fix law school” is uttered far too frequently. Vincent Rougeau, Dean of Boston College Law School, promoted this red herring in his recent U.S. News & World Report article, “Four Ways to Fix Law School.” His ideas to mend the system include more hands-on learning and exposure to international law in law school, more post-graduation partnerships with employers for recent graduates, and the radical idea that prospective law students should be told what they’re getting into. Those first three ideas are important  and indeed many schools have moved or are moving toward similar innovations. But the last idea is misguided, narrowly focused and even dangerous.

Rougeau mistakenly assumes that law students don’t know what they’re getting into. Puzzling, since this same group of people are often characterized as intelligent, diligent, and thorough. Certainly they possess the ingenuity and cleverness to investigate law schools and weigh their options. One hopes that they had the common sense to do so prior to making the commitment. As long as the information offered by schools is accurate, open, honest, and reflective of actual realities instead of manipulated to boost a school’s rankings, prospective law students will be able to make the determination for themselves.

He also shares the mistaken belief that law students think that the degree entitles them to a six-figure salary post-graduation, and that this is what drives them to attend law school. Firstly, not all law students elect to attend for the money. Reasons vary, and law schools should be ready to accommodate students regardless of motivation. Secondly, those who do attend for the big payday don’t believe that the J.D. is an automatic ticket to it. They strive and compete for grades and internships to position themselves for those lucrative jobs. While many of those have dried up, try convincing someone who wants to go to law school to make a lot of money not to do so because they won’t be the one to land that six-figure job.

The idea irresponsibly draws attention away from real reforms that law students and recent graduates need most. Measures that will help students and recent grads with mounting debt, shrinking salaries, and fewer job prospects. While Rougeau correctly points out that law schools must add programs that enhance students’ practical skills and job prospects, he neglects to address the other half of the equation. Namely, what law schools need to subtract in order to meet the needs of students. For instance, nowhere in his article does he mention costs or inflated tuition (BC charged $43,170 in 2012-2013). Without a discussion of costs, a law school’s commitment to real reform can’t be taken seriously. This doesn’t just mean freezing tuition, it means lowering it. It means fewer school facilities with unnecessary bells and whistles. It means a two-year program option. And it means either lowering salaries of administrators and professors, or demanding more from them to justify those salaries. If law students need to be educated about the realities of law school and their prospects thereafter, administrators and professors need a lesson about the realities of a 40 hour work week and merit-based salary scale.

The argument that efforts to fix law school must include lowering expectations of law students is nonsensical. Schools must improve the product, not manage the expectations of the customer.

ABOUT THE AUTHOR: Jon Cohen is a founding partner of Boston MicroLaw, LLP, a firm of small business attorneys in Boston, and a recent graduate of the Northeastern University School of Law. He swears he researched the average annual salary for an entry-level attorney before he entered law school.

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