Lawyers as a public good

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Thanks to San Diego lawyer and blogger Joseph Dang, I belatedly caught up with an article in California Lawyer magazine about the University of California at Irvine’s intention to launch a new law school this fall. If you’re not familiar with this plan, UC Irvine ambiti0usly aims to debut in the Top 20 rank of US law schools, in no small part by adopting an innovative, non-traditional approach to the school’s purpose and curriculum:

“Relatively early in the 20th century,” [Dean Erwin] Chemerinsky observes, “preparing lawyers for the practice of law was relegated to the bottom rung of law schools, and the top law schools didn’t see it as their primary mission. Could you imagine if a school graduated medical students or dental students who never treated a patient? Yet most law students have never had a client.”

The new school aims to change all that, starting with its first year, when law students will be introduced to the practical tools of their profession through a lawyering-skills class that integrates clinical experience. Then, in their second year, students will work through simulated fact situations, honing their skills in a particular field of civil or criminal law, so that when they are ready to register for a third-year, semester-long clinical course, they will already have a working knowledge of how to represent clients. “My central vision for the school,” says Chemerinsky, “is that we will do the best job of any school in the country in preparing students for the [actual] practice of law. A top-quality clinical program is key to achieving this.”

Among UC-Irvine’s other goals is to encourage more interdisciplinary study among law students and produce a healthy ratio of graduates taking public-sector jobs. It’s a bold experiment, and the odds are long against it, but there’s no better time than this for a new kind of law school to take root within the profession. Perhaps needless to say, I think this is a great idea.

But what really caught my imagination, and sparked a whole other line of thinking, was one other aspect of the UC Irvine model: thanks to funding by a clutch of law firms, the university plans to offer every student a full scholarship — that is to say, free tuition. That’s a concept that, among other things, cuts to the heart of what law schools are for. If the idea behind a law school is to turn out the world’s best lawyers — and UC Irvine appears to be aiming that way — doesn’t it make sense to remove barriers to that goal raised by the ability of the best candidates to afford the program? And in turn, doesn’t that get us thinking a little about the role of the marketplace in the formation of lawyers and the services they will eventually deliver?

This ended up, interestingly enough, dovetailing with a growing discussion within journalism circles about the future of the newspaper. You’ve certainly read enough articles about it and heard me talk about it here before — the fact that most everyone accepts newspapers are dying (and TV is next) and that the web is the immediate future, but that no one knows how to build a profitable business model that can sustain a news-gathering organization.  Premium subscriptions, micro-payments, online advertising — it’s all been tried and nothing has really worked yet. So now people are starting to talk about radically different solutions.

In The Guardian, Maura Kelly looks at non-profit newsrooms and start-up media organizations like GlobalPost. But interestingly, Bruce Ackerman (of Freakonomics fame) and Ian Ayres effectively combine these two approaches and have proposed (also in The Guardian) national endowment systems for investigative journalism:

In contrast to current proposals, we do not rely on public or private do-gooders to dole out money to their favourite journalists. Each national endowment would subsidize investigations on a strict mathematical formula based on the number of citizens who actually read their reports on news sites. …

[C]ommon sense, as well as fundamental liberal values, counsels against any governmental effort to regulate the quality of news. So long as the endowment only subsidizes investigative expenditures, in-depth reporting will get a large share of the fund – provided that it generates important stories that generate broad interest.

The endowment must monitor media hits and circulation counts. This is doable. Advertisers already rely on independent audits. So can the government. Some governmental monitoring of financial matters is also necessary. News organizations would otherwise be tempted to obtain subsidies for marketing and business operations. Without minimizing the problems involved in institutional design, the creation of an effective and disciplined national endowment seems entirely realistic.

The driving theory behind these efforts to save journalism is that investigative reporting – finding out what people don’t want to tell us — is a public good that’s too important to be left to the vagaries of the market. Just as we don’t rely on privately run firehouses to keep our cities from burning down, we can’t rely on privately run media companies to bring pressure to bear on our society’s power brokers. Newspapers, as Seth Godin says, wrap two cents of journalism with ninety-eight cents of overhead and distraction. Investigative journalism suffers from the tragedy of the commons: everyone benefits from its existence, but hardly anyone is willing to pay for it by itself. By removing (or at least reducing the impact of) market forces from its implementation, we can help investigate reporting to flourish and deliver real benefits of transparency and accountability to our society and its institutions.

What does any of this have to do with UC Irvine’s law school and its full-scholarship program? Think about this: what if every law school in the world had free tuition? (Or, more accurately, no tuition.) What if interested third parties covered all the costs of legal education in order to ensure it was done properly, freed from the shackles of market pressures and US News & World Report silliness? Now think about this: what if lawyers were free?  What if we decided that the provision of legal services was so important to the operation of a just society that market mechanisms preventing access to justice should be removed? What would our profession look like then?

Well, it’s a safe bet that our graduating law school classes would be far more diverse, especially socio-economically: the built-in bias in favour of applicants from wealthy backgrounds would fade. It’s also a safe bet that a law school curriculum designed to maximize the benefit of each graduating lawyer to the public good would be incredibly different from what most law schools now offer. Also very different would be the qualifications required of the people offering the courses.

What would become of the private bar? Remember, lawyers in this system aren’t charging fees directly; they’re billing the government or a non-profit entity for their work (but not, I’ll wager, for their time). Rationally, the funding organization would want to create certain standards of competent advice and productive service; it would be interesting to see which ones they came up with. Law firm compensation and advancement likely would not be based on hours billed but on other criteria — perhaps client satisfaction, risk reduction, value generation and so forth. Solos would be plentiful, mega-firms less so. Millionaire lawyers, like millionaire media and performing artists of the near future, would be rare. More people would go into the law not to make money, but to serve society. (Many doctors are already familiar with this sort of model, and I think those who have to answer to a for-profit entity would describe a very different quality of service than those who answer to a non-profit entity.)

This is, I readily admit, a thought exercise rather than a practical or even fully desirable scenario; think of it as Imagine for lawyers. There would be plenty of complications and downsides to a publicly funded legal profession. But there are plenty of complications and downsides to our current professional setup too. Today, law is a private-sector business that provides what is very arguably a public good. It’s fair to surmise that at least some of the difficulties and tensions between lawyers and society result from that misalignment.

If lawyers were considered a public good — if everyone knew and could access all their rights, could easily build legal risk management and problem avoidance into their lives and businesses, utterly free from worries about the direct cost because we were all collectively funding it for our mutual benefit — what sort of legal profession would we end up with? What would we lose? What would we gain?

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3 Responses to “Lawyers as a public good”

  1. Bob Tarantino

    I have two comments, one relatively minor, the other fundamental.

    First, do we have any evidence whatsoever for this proposition: “[Free/no tuition would have the result that] More people would go into the law not to make money, but to serve society”? Before tuition fees in Canada were de-regulated, were there more people going into “public service” areas of practice than there are currently? Do those low-fee US law schools which exist graduate more graduates who go into public service than higher-cost law schools? Do law students who graduate with no debt go into public service at a higher rate than their peers who graduate with debt? I’m not saying it’s not possible, but we all seem to simply *assume* that lower (or non-existent) tuition will result in more publicly-minded lawyers, but is that in fact the case?

    Second, and fundamentally, I strongly believe that the onus for funding the profession, accepting for the moment that there is a good case for it, would not be the obligation of “the public” but the obligation *of the profession* – serving the public interest is the cornerstone on which the profession is founded. It is the principle animating the grant of self-regulation to the profession. If “society” not only hands over effective control of the profession to the profession but also then agrees to *fund it*, what exactly is the quid pro quo being paid by the profession in all of this?

  2. Jordan Furlong

    Bob, your first point is taken, in part — I don’t know whether any studies have been done correlating low tuition with public-service jobs. There have been studies, though — I think NALP has done them — that show high tuition strongly discouraging public-sector jobs, simply because the relatively low salaries these positions make it difficult for lawyers to pay off their debts and make a living in the urban centers where these jobs are most often located.

    As for increasing the number of lawyers seeking to serve society rather than make money, a small quibble with your quote: I suggested not that not free tuition would attract more publicly-minded law students, but that free legal services (and the consequent lower average salary) would — or at the very least, would discourage the singularly money-minded applicants. We all had classmates in law school who were clearly motivated by the money and the prestige that a legal career would bring. I’m not saying that’s a bad thing, necessarily, but I think it’s a virtual certainty that a legal profession bent towards the public good would not be much of a draw to them.

    Regarding your second point, I agree that “serving the public interest is the cornerstone on which the profession is founded.” But I’d have a hard time being convinced that the public interest is the cornerstone upon which the profession usually operates in practice. With the great majority of the public (including many individual lawyers) effectively unable to access the justice system because of cost and other barriers, and many lawyers seemingly undisturbed by that fact on a day-to-day basis, it’s difficult to support an argument that we are operationally dedicated to the public interest. This is the misalignment between the private-sector profession and the public good of legal services I mentioned.

    I don’t think self-governance is inherently incompatible with outside funding: Canada’s doctors, to take one example, bill the government for their services while successfully regulating themselves. Self-governance, to my mind, comes down to trust: the extent to which society trusts a profession to regulate its own internal affairs because the profession is seen to be fair, responsible, transparent, and mindful of the social good it provides. The quid pro quo is in the social compact between the profession and the public. Violate that compact or be seen to be ignoring it — as happened to some lawyer governing bodies in the UK and Australia — and the public, through its government, will intervene and say. “Okay, you had your chance; now we’re going to oversee your operations.” That result, to my mind, is a professional and institutional failure.

    Professions of all kinds risk their self-governance not when their bills are paid other than directly by their clients/patients/customers, but when they forget, as you say, that the privilege of their position is not a divinely bestowed right but a gift of trust from the people they serve.

  3. Joseph Dang

    While there might be no empirical studies to show lower tuition would encourage more public service attorneys, fact of the matter is that high tuition coupled with low salary offers a clear case of discouragement.

    It’s just numbers. When I came out of law school it wasn’t out of the ordinary to face $100,000 in tuition. I hear it’s much higher now. Public service positions don’t pay much at all. One can assume there is a definite amount of people who desire a public service job but cannot possibly do so with their student loan bills. How large this number is, of course, is unknown, but I don’t think it is such a stretch to say they exist.

    Thanks for the shout out Jordan!

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