Advocates for Starving Advocates

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. 

  • Matt Lord

    “bare it”? Might be “bear.” Excuse me for skipping the misogynistic puns available. In any case, a good critique of the residency proposal, but I’m unsure what real legal pro reform we can expect. It seems to me that the legal industry, much like the banking industry, has reformed in a manner that allows it to continue to hold power through capital acquisition. Given the surplus of law school grads in the current system, there is plenty of room for BigLaw to let some schools founder and still have plenty of acolytes leaping at the chance to work 100 hours a week. And if that is the case, I don’t see where real reform comes from. The academy? Don’t need half of them. Clients? Not any more disappointed with lawyers than they used to be (phew, thank god the bankers were even worse!). Courts? HAH! Perhaps some of the more progressive, smaller state bars (are there any of such description?) could influence the reform trend. But Otherwise, not sure.

    • Ed’s Note: The grammar mistake Matt reveals in his comment has since been corrected. Thanks for the comment and the correction.

    • hungrydavebrown

      In response to your comment, Matt, I believe the best answer is that reform comes not from any one entity, but from the market as a whole. The fact is that there is a large, untapped resource of clients who could afford to pay $50-$150/hour for legal services, and BigLaw can’t (not won’t, but can’t) service them. BigLaw’s overhead is too high for that market. So, the reform will come from a concerted effort of practicing attorneys, BigLaw and law schools to start developing practice managers among the next generation of attorneys.

      And I believe you’ll see the courts involved as well, particularly with regards to licensing requirements. Part of the changes that will guide the future of this industry and legal education will include a new professional conduct code that allows pre-3Ls to sit for the bar and obtain perhaps a provisional/apprentice license prior to graduation.

      I can see why you’re so skeptical, particularly after reading about Dean Farmer’s proposal, which is an absolute joke. I wrote more about that, here:

      http://shrinkthelaw.com/2013/02/19/rutgers-dean-wants-to-let-law-firms-ruin-everything-again/#

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