Faced with rising student debt and declining applications to law schools, a task force of the American Bar Association is calling for sweeping changes in legal education, including training people without law degrees to provide limited legal services and opening the bar to those who have not completed four years of college and three years of law school.
The report, to be issued on Friday, does not refer specifically to President Obama’s suggestion last month that law schools might limit classes to two years, and have students spend their third year clerking or practicing in a firm. But it did recommend the elimination of the rules that law students must have 45,000 minutes in a classroom to graduate and that they cannot get credit for field placements that are paid.
Here is the Draft Report’s own Summary, with some of the most key language underlined bye. I must say that I am impressed by the depth of perspective and the range of changes promoted. The chair of the Task Force is retired Chief Justice Randall Sheppard, of Indiana. He has been a long-time friend of access innovation, and this Draft Report would appear to reflect his well thought out perspective.
Sadly, however, I do not see any endorsement of the required pro bono hours approach for bar admission candidates, pioneered in New York. I do not understand why, unless it is because of the fear that such an endorsement would lead to increased demand for mandatory pro bono for all lawyers, perish the thought. (My own thought on that one is that admitted lawyers should be required to do pro bono, but the option of a buy out based on an escalating multiple of hourly billing rate, with the multiple going up with the rate.)
The Draft Report includes specific recommendations directed to a wide variety of stakeholders.
Pricing and Funding of Legal Education: Law schools are funded through a complex system of tuition revenue and non-tuition sources such as endowment income and state subsidies. Law school pricing practices are also complex, and involve extensive discounting and reliance on loans. A currently widespread practice is for a school to announce nominal tuition rates, and then chase certain high LSAT/GPA students by offering substantial discounts (styled as scholarships) without regard to financial need. Other students, by contrast, receive little if any benefit from discounting and must rely extensively on borrowing to finance their education and various federal programs make such loans virtually open- ended. One result is that students whose credentials are the weakest incur large debt in order to sustain the school budget and enable higher-credentialed students to attend at little cost. Many of these less credentialed students also have lower potential return on their investment in a legal education. These practices are in need of serious re-engineering.
Accreditation: The system of accreditation administered by the ABA Section of Legal Education and Admissions to the Bar has served the profession and the nation well. Today, however, it reinforces a far higher level of standardization in legal education than is necessary to turn out capable lawyers. The ABA Standards for Approval of Law Schools also impose certain requirements that increase costs without conferring commensurate benefits. The Task Force concludes that the Standards would better serve the public interest by enabling more heterogeneity in law schools and by encouraging more attention to services, outcomes, and value delivered to law students. The Task Force thus recommends that a number of the Standards be repealed or dramatically liberalized.
Innovation: The ABA accreditation system should also better facilitate innovation in law schools and programs of legal education. The current procedures under which schools can seek to vary from ABA Standards in order to pursue experiments are narrow and confidential. The Task Force recommends that the Section use the variance system energetically as an avenue to foster experimentation by law schools and open the variance process and results to full public view.
Skills and Competencies: The principal purpose of law school is to prepare individuals to provide law-related services. This elementary fact is often minimized. The profession’s calls for more attention to skills training, experiential learning, and the development of practice-related competencies have been well taken. Many law schools have expanded such opportunities for students, yet, there is a need to do much more. The balance between doctrinal instruction and focused preparation for the delivery of legal services needs to shift still further toward developing the competencies required by people who will deliver services to clients.
Broader Delivery of Law-Related Services: The delivery of law- related services today is primarily by lawyers. These services may not be cost-effective for many who are in need of them, and some communities and constituencies lack accessible legal services. State supreme courts, state bar associations, and admitting authorities should devise new or improved frameworks for licensing providers of legal services. This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission for people whose preparation may be other than the traditional four-years of college plus three-years of classroom- based law school education. The current lack of access to legal advice of any kind that exists across the country requires such innovative steps.
The highly reflective Richard Granat has posted an analysis of why he has recently come to the view that creating a category of limited legal technicians may do more harm than good. In short, he worries that the pricing model will be no cheaper than lawyers, and that such non-lawyers will force out solo lawyers. In my opinion either may (or may not) be true, but not both. In any event, my view is we should test the concept and see what happens. In short, even in the unlikely event that non-lawyers had to train for three years, they would probably be better than traditional lawyers at the limited tasks for which they had been trained. But, Richard’s views are always worthy of great attention.