Radical roads to reform lawyer formation

On April 27, I’ll be delivering the morning keynote address to The Future is Now: Legal Services, the annual conference of the Illinois Supreme Court Commission on Professionalism. The topic of my presentation will be “Reinventing Professional Development for Lawyers of the Future,” and if that’s of interest to you, I’d encourage you to check out the full conference agenda (featuring superstar presenters like Kim Bennett and Brian Cuban) and register for the event today.

For my contribution to the conference materials, I prepared a paper titled “Towards A New and Better Model For Lawyer Formation and Ongoing Competence.” In case you’re interested, I’ve reproduced a modified excerpt below.

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What do I mean when I talk about “lawyer formation?” I think that term can best be understood as the process by which a person becomes a competent, confident, and independent lawyer:

  • Competent: The lawyer has established to the satisfaction of the relevant licensing authority that they possess the minimum capacities and characteristics necessary for licensure.
  • Confident: The lawyer has acquired enough professional experience and received sufficient guidance and validation to attain emotional self-assurance and trust in their own abilities.
  • Independent: The lawyer can serve clients, manage tasks, fulfil professional duties, and regulate themselves without requiring supervision or oversight by more experienced practitioners.

This formation process begins no later than the first day of formal legal education (although it can start much earlier, even before a person applies to take the LSAT), and it ends when a licensed lawyer meets all three of the foregoing conditions (an occasion that will arrive at different times for different people).

At a minimum, lawyer formation takes three to four years — but for most of us, the process lasts significantly longer, sometimes a decade or more. That obviously means our achievement of “competent lawyer” status won’t occur until years after we first obtained our license to practice — long after a regulatory authority informed us and the world that we were fully licensed to deliver every type of legal service to anyone who cared to hire us.

Lawyer licensing is out of step with lawyer competence, and the lawyer formation process is the reason why. In most jurisdictions today, that process fails to properly and efficiently ensure competence, confidence, and independence among the lawyers it certifies. It is fragmented, repetitive, and focused primarily on the interests of the entities (law schools, bar examiners, regulators) that administer each step, rather than on the lawyer it is forming and the clients that lawyer will someday serve.

What we need is a new lawyer development model that is unified, strategically designed, and focused on the needs and interests of lawyers and clients. But we can’t achieve this goal by incremental steps, not when so many longstanding and powerful institutions benefit from the status quo, and especially not in the Pandemic Era, when half-measures accomplish very little. We need to think bigger, challenge more fundamentally, and be ready to embrace entirely new approaches to this issue.

I’d like to recommend three actions that would begin to truly overhaul the lawyer licensing and development process. They would be disruptive. They would cost a lot of money and require a lot of effort. But I believe they’re the kind of measures we’ll need if we want to make real progress towards a healthier, more capable, and more effective legal profession.

1. Design a licensing assessment system that makes a law degree optional. Create a robust competence framework for new lawyer licensing, and assess applicants’ ability to satisfy its requirements regardless of whether the applicant has completed a law degree. Follow the lead of the Solicitors Regulation Authority (SRA) in England & Wales, which in September 2021 will make the Solicitors Qualification Examination the sole “legal knowledge” criterion for bar admission — a law degree will not be necessary. The SRA is concerned only with whether an applicant has acquired the skills and knowledge to pass the exam; it is not especially concerned with where or how the applicant acquired those attributes.

Future Road to Lawyering

North American regulators should develop a multi-dimensional competence framework for law licensure that encompasses:

  • legal reasoning and knowledge,
  • legal ethics and professional identity,
  • legal business skills and client service, and
  • empathy and emotional resilience.

Regulators should then assess aspiring lawyers against this framework, regardless of whether or to what extent applicants have completed law school. Regulators should also encourage the growth of non-school entities that can emerge to give aspiring lawyers the knowledge, skills, and training they need to satisfy the competence framework and assessment system.

Under our current licensing system, the law degree acts as a proxy for a set of learning experiences that are presumed to advance the student towards competence. Rather than forcing would-be lawyers to invest three years and hundreds of thousands of dollars to acquire this proxy certification, regulators should decide what a new lawyer should actually know and know how to do, and design an assessment process that allows bar applicants to prepare themselves to pass it however they wish.

2. Require supervised practice experience for licensing. No jurisdiction in the United States requires aspiring lawyers to gain supervised practice experience before they receive their law license. In this regard, the US stands almost entirely alone in the world. Articling students in Canada, trainee solicitors in England, and rechtsreferendare in Germany are examples of apprenticed lawyers-in-training who spend one to two years in a legal work environment applying the knowledge and principles they learned in law school, under the supervision of experienced practitioners. American legal regulators should follow suit.

Even if a mandatory period of supervised post-graduate training in a legal workplace is not adopted by American regulators, there are other ways to ensure a significant degree of exposure to practice realities. States could require that a law student complete a specified amount of supervised clinical education in law school, as was recently recommended by the Institute for the Advancement of the American Legal System (IAALS)’s “Building a Better Bar” report.

Simulated Future Firm™

Alternatively, regulators could require that licensing applicants successfully complete a virtual “simulated law firm” program, where would-be lawyers handle fictitious files, connect with clients and witnesses portrayed by actors, and learn the ropes of law practice in a training environment with oversight and mentoring from practice advisors. Simulated law firms are currently part of the bar admission program in five Canadian provinces. They do not substitute for the actual experience of working in a legal services environment, but they are preferable to the absence of any kind of experience at all.

3. Mandate comprehensive CPD for lawyers in their first five years. One consistent shortfall in lawyer development across all jurisdictions is that new lawyers are credentialed and licensed too early. Most first-year lawyers are unprepared to carry out the tasks that clients and employers require of them, poorly trained to handle the basics of business management and client relations, and unready to handle the intense emotional disruption of the shift from academic to working life on their own.

Regulators therefore should continue the training and education of lawyers following their call to the Bar. They should create a comprehensive professional development program designed to guide the growth of the novice lawyer throughout their first five years in the law. This program could provide:

  • asynchronous learning through online videos and interactive materials,
  • mandatory in-person workshops and conferences for junior practitioners,
  • access to toolkits filled with resources for running a legal business,
  • mentoring opportunities with multiple senior lawyers in their jurisdiction, and
  • an anonymous Help Line that can be called any time day or night for assistance, support, or counselling.

Essential Support for the Future

A program like this would not be cheap to develop and deploy; but it would be much less costly than losing thousands of lawyers to discouragement and depression every year, not to mention reducing the professional insurance costs of under-developed lawyers mishandling their own affairs and those of their clients. And, along with the other two actions described above, it would mark a new beginning in how the legal profession regards lawyer formation and would accelerate the development of annual new cohorts of strong, proficient, and confident lawyers.

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The first step towards solving a problem is confronting head-on that it’s real and it’s serious. I don’t think we’ve arrived at that point yet when it comes to our lawyer formation process — there’s still too much poking around the edges or pinning all the blame on individual stakeholders (law schools, bar examiners, etc). But every day we postpone true recognition of our troubles, the longer it will take us to come up with solutions equal to the challenge.

The real issue is not that these three foregoing suggestions are too radical, but that they might not be radical enough. Only when we come to accept the need to fundamentally change how we approach the critical first decade of a lawyer’s career will these solutions seem equal to the monumental task at hand.