Pandemic VI: Lawyer formation re-engineered

As I noted in my previous post, the pandemic is accelerating and accentuating all the trends that were already going to bring the existing lawyer formation system to a grinding halt. Less than eight months ago, I wrote here at Law21 about how the lawyer development system is breaking down and how we could replace it with something better.

At the time, I thought that the system would break down because law firms would hire fewer and fewer new lawyers and would thus remove themselves from their longtime de facto role as “on-the-job lawyer trainers.” This would have knock-on effects up and down the new lawyer pipeline.

Legal regulators, I wrote, need to unify the disparate strands and fragmented shards of lawyer formation and assert control over the lawyer development process in their jurisdiction. Education, training, licensing, and ongoing competence assessment all need to be carried out under unified supervision and against a comprehensive, authoritative vision for creating competent, confident lawyers to serve clients and society.

That, as they say, was then. A process that I thought last August would unfold over the course of years is now happening in weeks. So I’d like to recommend that post for your review, and to now use it as a launching point for the following proposal for reinventing lawyer formation in the post-pandemic era, whenever that arrives.

To make this change possible, we have to stop thinking of lawyer formation in terms of the organizations we’ve allowed to handle different segments of lawyer development — law schools, bar admission entities, law firms — and start thinking in terms of, from the perspective of, the lawyers we are helping to form. We need to figure out what lawyers actually need, in terms of structured instruction and supervised experience, in their first 10 years in the legal community, and only then turn our minds to which sorts of entities are best positioned to provide it.

Right now, out there working on ways to rethink and re-engineer lawyer formation, are many very smart people with extensive experience in legal education. I fall into neither of those categories; nonetheless, I’d like to submit for your consideration this rough breakdown of the three elements that I believe lawyers need to acquire during their formative years.

1. Education in core legal principles. What are the foundational building blocks of law? Before a student learns the first thing about the rules of evidence or the standards of contributory negligence or what makes a will valid, they first need to know the essential elements of law and the benefits it offers to society. These include:

  • underlying principles of law (fairness, due process, precedent, the rule of law, etc.)
  • essential features of law (rights, obligations, remedies, solutions — recall the consumer legal hub)
  • key manifestations of law in society (procedures, guarantees, title, disputes and their resolution)

Law is not a trade, and law school is not a trade school. There is a genuine role for what we think of as “traditional legal education,” and this is it. But it does not involve textbooks and lectures and exams in “Contracts” or “Land Transactions” or “Tax” or any other “practice area” course. It involves, yes, “thinking like a lawyer,” but more importantly, understanding why we have law and why we have lawyers — the benefits both provide in terms of safeguarding and promoting social stability, inter-personal reliability, individual dignity, and collective responsibility.

Examples of the principles, features, and manifestations of law would be drawn from all the standard “practice areas” — not to “teach” those areas of law, but to illustrate points about precedents and obligations and guarantees and so on. This segment of the process would be best administered in person, a group of novices learning together under the guidance of experienced educators, in order to help with socialization of new lawyers and the building of their networks.

By the time a student finishes this segment (and demonstrates to their instructor’s satisfaction their command of it), a student would know the “why” and “how” of law; only then would they dive deeply into the specific “what.”

2. Knowledge of legal subject matter. While this might look like all those substantive “practice area” courses from law school, there are a couple of key differences.

One difference is that these courses would be learned mostly online, through recorded video instruction and the completion of various “modules” that could consists of dozens or even hundreds of units, depending on how much of a specialty a student wanted to develop. Assessment of a student’s learning would be conducted by expert practitioners in each area authorized by regulators to test students as soon as they wish to be certified as having completed some or all of the course. Completing and “passing” 20 modules, say, would give you a basic grounding; 40 would makes you moderately informed; 100 would make you a budding expert.

The second difference is that there would be no mandatory courses. I recognize this is controversial, and you might protest that there are some things “every lawyer should know.” In terms of professional identity and responsibility, I agree, and these are covered in the third section below. I also agree that there should still be “pre-requisite” courses for some subjects — for example, you would not enrol in “Mergers & Acquisitions” until you’ve first completed a minimum number of law “Business Law” modules.

But in terms of requiring every student to master an (increasingly arbitrary) array of legal subjects, I disagree. We need to stop forcing future lawyers to spend the first precious years of their lawyer formation learning about areas of the law they will never use. A highly specialized legal market needs equally specialized lawyers who learn continuously and fluidly throughout their careers.

Under this proposal, nothing would prevent a lawyer who, having completed and been certified in, say, employment law, from later changing their career plans and completing a course in patent law. The lawyer’s “classmates” at any given time would therefore encompass a broad range of novice learners and experienced practitioners,  producing a far more diverse, dynamic and collaborative learning environment. “Law school” in this system stops being a place where you spend the first three years of your career and never return again; it becomes a lifelong learning resource — what CLE should have been, but never was.

We should no longer use the legal education system to satisfy an antiquated vision of a profession filled with jacks-of-all-trades and Atticus Finches; instead, we should empower law students to build the types of legal careers they want to lead and serve the parts of society they want to serve in a rapidly changing world.

3. Skills and standards of a lawyer. This is the part of the lawyer development process that many veteran practitioners refer to as “the real world.” I draw no hierarchical distinctions regarding whether these subjects are superior to any others. But here is where you’ll find subjects such as:

  • professional identity
  • legal ethics
  • professional conduct
  • character and integrity
  • personal empathy
  • customer service
  • business fundamentals
  • workflow management
  • financial literacy
  • technology training
  • project management, and
  • cultural competence.

Through a combination of in-person and online education, learners would acquire mastery of these subjects and the practical realities of their application.  But more importantly, they would be given the chance to test these skills and this knowledge, either in three- to four-month work placement opportunities in the private and public sector, or in virtual classrooms and simulated law firms.

Does that last part sound too far-fetched? It’s already happening, right now. Check out the Practice Readiness Education Program provided by the Canadian Center for Professional Legal Education, which is now replacing the bar exam process in Alberta, Saskatchewan, Manitoba, and Nova Scotia. And check out the Law Practice Program already well-established in Ontario.

I’m confident that other Canadian regulators will soon convert their articling requirement to completion of the PREP, LPP, or similar programs. Other countries should study and adapt these innovative and timely new-lawyer-competence assessment methods. The template for modern, practical, supervised hands-on lawyer training is available for you right now here in Canada.

A couple of final points in this third category.

(a) This third category of learning can (and often should) take place contemporaneous with the second category. Our current lawyer formation system teaches students knowledge of a legal subject area, and then years later, exposes them to the practical implementation of it. That’s a needless disconnect born of provider fragmentation. Students should be encouraged to learn how to be a lawyer in practice at the same time as learning how to be a lawyer in theory. (Integrated courses that combine items in the second and third categories could be considered.)

(b) This third category is not exclusive to the private practice of law. “A lawyer” does not exclusively refer to people who serve multiple clients on a serial basis in the private sector. Corporate counsel, public-sector counsel, and public-interest counsel are all lawyers. This third category should provide both instruction and experience in all these different dimensions of being a lawyer (and especially in ethics and professional responsibility, which currently is taught 95% from the perspective of private practice). Among the many shortcomings of our current lawyer development system is that “private-practice lawyer” is the default setting. That needs to change.

These are my suggestions for rethinking, re-engineering, and reunifying the lawyer formation process. Next up in this series are my thoughts about what the pandemic is going to do to private law practices, and what a rescue mission and re-engineering project might look like in this highly vulnerable sector of the legal economy.



9 Comments

  1. Suzanne Rose

    Great read, Jordan. I wonder where you see the role of state bar associations, mandatory CLE, state ethics boards and attorney discipline as you consider the past-pandemic legal economy and lawyer formation.

  2. Alexandar Ivanov Pavlov

    Very interesting article and I like that there is a passage about the legal ethics. I tried to draw the attention of my former colleagues public notaries about the ethics and notarial deontology but there was almost zero interest.

  3. Colin S. Levy

    This post outlines much of what you, me, and others firmly believe in and what legal education should mean and, more broadly, what lawyers should look like. Your efforts to push forward without hesitation inspires me to continue to join with you in that effort, no matter the odds.

  4. Jordan Furlong

    Thanks very much for your feedback and questions, Suzanne! Here are some thoughts on each:

    – If you mean state bar associations acting in a regulatory capacity, I think these entities have an enormously important role to play in dictating the new terms of lawyer formation to law schools and other emergent educational/training organizations — acting under authority delegated from the legislature or courts, these bar associations must apply themselves as soon as possible to developing robust theories and practical models of lawyer competence and deploying them across their jurisdictions.

    – If, however, you mean voluntary state bar associations that act as interest groups for lawyers, providing practice-area sections and CLEs and newsletters and that sort of thing — I think they’re in grave danger. The lawyers and law firms who make up the bulk of their membership are about to enter several months of extreme hardship and forced cost-cutting, and I expect these lawyers will find few such associations deliver sufficient value and relevance to their members to warrant continued membership fees.

    – I am a longtime critic of mandatory CLE (https://www.law21.ca/2013/04/the-mcle-question-no-one-wants-to-ask/), and I look forward to a near-term or mid-term future in which it’s been eliminated, as part of the kind of thorough re-envisioning and restructuring of lawyer competence standards described in the first entry in this comment. But judging from the knee-jerk protectionism that’s already emerged in support of the bar exam, I expect this won’t be easy. Too many stakeholders in the legal economy need MCLE to continue, for two reasons: (1) It substitutes for actual professional competence standards and systems and therefore gives cover to regulators who otherwise have absolutely no response when asked how they know if lawyers are good enough to practise, and (2) the revenue from MCLE keeps an astonishing number of powerful legal entities financially viable, and there is no way they will ever voluntarily relinquish that revenue — it will have to be taken away from them.

    – I actually don’t know enough about state ethics boards and attorney discipline systems — those functions seem to be carried out here in Canada by law societies as part of their overall disciplinary mandate, but I don’t know how the US versions work. I do think, though, that the control by lawyers over any aspects of lawyer discipline systems will come to a swift end this decade, as part of sweeping changes to professional regulation in all sectors to ensure the independence of regulators — not from the state, but from the people and practices that they’re regulating. “Regulatory capture” is a massive unaddressed problem in the legal profession that’s going to get addressed and solved this decade, whether lawyers like it or (more probably) not.

  5. Suzanne Rose

    Hi Jordan. Thanks for your response. My experience with my state bar is that it’s more of a fraternity for office and board holders than anything else. They supposedly do some lobbying at the state legislature and pay attention to A2J. I’ve had some experience with the disciplinary board in TN and I’m not sure how effective they are. It seems a lawyer could shoot someone in the middle of 5th Avenue and after losing their license for a period of time could reapply and be reinstated. When I read some of the disciplinary actions taken against TN lawyers, I’m appalled at the criminality and lack of morals of some of these respondents who somehow are allowed to become lawyers (1st mistake) and are allowed to continue after a period of suspension.


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