- Part 1 in this series: What we’re up against
- Part 2 in this series: Justice system down
- Part 3 in this series: Justice reconstructed
If you’ve spent the last few weeks focused on what’s happening in law schools, you might think the pandemic has triggered a crisis in legal education. If you’ve spent that time instead focused on bar exams and articling, you might think the crisis is actually occurring in bar admission and lawyer certification. And if you’ve been focused on law firms’ early personnel and recruitment decisions, you might instead think we’re heading into a crisis in lawyer hiring and employment.
In fact, this is all one crisis in one system — lawyer formation — manifesting itself in different locations. The sooner we accept that fact, the sooner we can begin the process of both organizing triage to get us through the short-term hardships assailing us, and drawing up blueprints to unify the shattered fragments of lawyer formation and create an effective and legitimate system for developing new lawyers.
Here’s a brief survey of the eruptions taking place across this landscape.
● Every law school in North America has had to close its physical doors because of the pandemic’s physical distancing consequences. As is the case with courts, legal education revolves around the school building to which everyone has to come, the professor in whose presence they must gather, and the legacy paper-based knowledge centre anchoring the whole institution. And as with the courts, the transition from real world to virtual world has been chaotic and jarring.
● Also like judges, many law professors are now having to learn video-conferencing on the fly, in order to convert their lectures to an online format. Most are doing their best, but the effect is still something like televising a radio play. Teaching a “digitally native” class, one that was designed from the start to be online, is a different beast than delivering an in-person lecture to a camera and scattering the participants to the four winds.
● Law schools in the US, after an initial period of struggle and a series of debates within faculties, are also (mostly) coming around to accepting that their grading systems will have to change to Pass/Fail during this crisis. (A US school-by-school breakdown can be found here.) For the most part, Canadian law schools are doing the same.
● In the United States, some jurisdictions have postponed their bar exams, while others aren’t sure or haven’t yet. (This situation changes daily, so these links are probably already out of date.) Since new graduates who can’t take the bar can’t be admitted to practice, the focus has now turned to emergency diploma privilege for 2020 grads, or to skip the bar exam this year. In Canada, Ontario became the first province to cancel its lawyer licensing exams.
● Speaking of my home, one Canadian jurisdiction has already decided to shorten the articling period from 12 to 8 months to allow articling students to be admitted to practice. Saskatchewan’s decision will almost certainly be followed elsewhere in the country, which should help alleviate concerns about law firms simply laying off their students before their term has been completed.
● Law firms, predictably in the teeth of a global recession, have already begun to lay off associates and staff members. Many more surely will follow, as I doubt any but the most ironclad-brand firms will avoid the same fate. Summer law programs will therefore almost certainly all be shut down, and the on-campus interview process will move to next winter, if not later.
● And, oh yeah — law schools also have to worry about postponement of the LSAT and consequent delays in admitting future cohorts of students. It’s not just the system’s output mechanisms that are struggling — if the input mechanisms go too, legal education has a whole new problem.
That is a staggering collection of disruptions and challenges, none of which the lawyer formation system was prepared to handle, all taking place in less than a month. (Credit where it’s due: For all the chaos and upset involved, law schools and their students have managed to shift almost all their operations from in-person to online in the space of a few weeks. Has it been seamless? Hardly. But schools and students have so far succeeded where many law firms and courts failed.)
But here’s the problem: It’s almost impossible to tackle any one of these issues without having significant knock-on effects on the others.
When law schools change their grades to pass/fail, law firm recruiters have to change their student assessment systems. When the new lawyer licensing process stalls out, firms can’t employ these new graduates as lawyers. When law firms scale back or postpone the hiring of new grads, new lawyer unemployment climbs and fewer people apply to law school. And so on.
More problematically, all the relevant actors in this mad scramble are independent from the other, mandated to pursue their own goals and their own survival regardless of whether that pursuit damages the other stakeholders. Nobody has either the overarching interest or the requisite authority to coordinate a unified response. Licensing bodies can’t tell law schools what to do, law firms can’t tell licensing bodies what to do, and law students can’t tell anyone what to do because they have no power and nobody to advocate for them.
We need to appreciate what’s actually going on here. These are not myriad individual problems and complications in several related areas of lawyer education and training and licensing and hiring. This is one big problem.
The lawyer formation process is breaking down in front of us. It’s breaking down because it’s a disjointed, cobbled-together collection of self-interested fiefdoms that have been allowed to call their own shots and pursue their own goals for decades.
Just as the court system is failing because it’s really about what judges and lawyers want rather than what clients and the public need, so too lawyer formation is failing because it’s really about what law schools want and what regulators want and what law firms want. Lawyer formation is not about the lawyer who’s being formed.
If the lawyer formation process were really about the lawyer, it would be holistic and unified, focused on the individual striving to become a legal professional. Instead, look at how we’ve separated the first several years of a lawyer’s career into three disjointed periods, administered by three different entities:
- Law schools “teach the law” — even though the bulk of what they teach and how they teach it has not changed in more than 60 years. That scandalous fact alone could legitimately disqualify schools from having any further role in these conversations.
- Courts and regulators “licence the lawyer” — even though the bulk of this process involves re-teaching and re-testing students on what (we apparently believe) law schools didn’t teach effectively in the first place.
- Law firms — no, let’s be real here, clients — “train the lawyer,” by paying either the new practitioner or their employer to figure out, on the job, how they’re supposed to meet actual legal needs. Clients pay to make lawyers competent. What a disgrace.
We have separated lawyer education from lawyer training, and separated them both from lawyer licensing and entry into the profession. We’ve allowed this ridiculous process to continue year after year, despite knowing all its weaknesses and failings, and now we’re going to pay the price of that carelessness in one lump sum.
The pandemic is, of course, the proximate cause of all this. Physical distancing forced law schools to change their teaching and grading systems and forced regulators to rethink their licensing system. The global recession — and maybe that’s not a strong enough word — that’s about to strike us like an onrushing avalanche is forcing law firms to massively recalibrate their hiring and firing decisions.
But someday, probably years from now, the pandemic will end and the economy will recover. Will all these aspects of lawyer formation just “go back to normal” then? I strongly doubt they will, for two reasons.
One is that this ordeal is going to last so long — and feel even longer — that we’ll have a surprisingly hard time remembering what “normal” used to be like. Humans have a remarkable ability to grow accustomed to new conditions — if you’re not sure about that, look outside a month from now and see how many people aren’t wearing masks.
But the other, more important reason why we won’t just “snap back” to the old ways of doing things is that those ways have been permanently, irrevocably discredited. Those of us who’ve spent years advocating for change in the lawyer formation process have always been met with, “It doesn’t need to be done” and “Nobody would allow it” and “That would never work.”
Well, guess what? We did it anyway, because we had to, and it worked. And now we get to ask:
- If Pass/Fail is an acceptable grading system during an emergency, why isn’t it acceptable all the time? Having taught a couple of law courses myself, and having experienced as an instructor how letter grades are arbitrary and indefensible, I believe Honours/Pass/Fail is the ideal assessment system — it tells both the student and her potential future employers all they need to know about course performance. And I’m not the only one who thinks that.
- If we’re willing to grant emergency diplomas to law graduates who’ve not passed a Bar exam, why would we force future generations of lawyers to pass a test that we’ve effectively conceded is merely optional to the licensing process? Why would we not go a step further and officially do away with the bar exam altogether and pursue bar admission through alternative models?
- In Canada, we’re willing to say that eight months of articling is as good as 12. What about six? What about four? When articling is already under heavy attack, when it’s been shown to be an abusive and discriminatory experience for many students, when we’re already having serious discussions about whether the practice should be discontinued, why should we carry it on a day further, especially in a pandemic?
- Most seriously of all: If law firms are laying off experienced associates now, what are the chances they’re going to hire brand-new ones in three, six, or nine months’ time? What happens when the Class of 2020 (and maybe 2021) finds almost no job opportunities upon graduation or licensing? If the outsourcing of new lawyer training to law firms (upon which the entire lawyer development system hinges) stops, and firms survive without it — why would firms take on this role again?
Our “bucket brigade” approach to lawyer development, in which each participant takes the formative lawyer from one stage to the next, has been exposed (like all supply chains around the world) to be fatally vulnerable to disruption. Out of this crisis will emerge a driving need to re-unify the lawyer development system, to really rethink what it is we’re trying to achieve: to develop competent, confident lawyers to serve clients and society. In order to achieve that goal, we need to:
- Reconfigure and unify all the systems and processes of lawyer formation;
- Centralize and empower a single authority to be responsible for lawyer formation; and
- Most importantly, refocus the lawyer formation system on the lawyer who’s actually being formed.
That’s how I see the impact of the pandemic on legal education, lawyer licensing, and legal professional development. For my thoughts about practical steps we can take to achieve these goals, in both the short term and the medium-to-long term, please see the next two posts in this series, coming tomorrow.