The Massachusetts Supreme Judicial Court (the state’s top court) is formally asking for comment on a proposed rule change that would put access to justice issues on the bar exam.
The proposed rule is written in such a way that the continuity with past areas is clear, but the overall impact is potentially significant, with law schools, or at least those that “teach to the test” surely placing more emphasis on those issues.
Here is the proposed list of issues within the topic area:
*Landlord-tenant (evictions, including affirmative defenses and counterclaims and fee shifting statutes), foreclosures, real estate-closings (currently within the topics of Property, Contracts and Unfair or Deceptive Practices [including G.L. c. 93A]);
*Divorce, child custody, support, visitation, termination of parental rights, domestic abuse, guardianships and conservatorships (currently within the topic of Family Law);
*Consumer matters, including debt collections, predatory lending and unfair and deceptive practices (currently within the topics of Unfair or Deceptive Practices [including G.L. c. 93A], Contracts, Torts);
*Health care proxies/power of attorneys/advance directives (currently within the topic of Wills & Trusts);
*Due process doctrines related to fair hearings, civil commitment and civil right to counsel (currently within the topic of Constitutional Law);
*Representation of nonprofit organizations (currently within the topic of Business Organizations); and
*Ethical rules including MA Rules 1.2, 1.5, 1.14, 1.15, 4.3, 6.1, 6.5 and Limited Assistance Representation (currently within the topic of Professional Responsibility).
I am particularly excited by the possibility of ensuring that all lawyers learn about unbundling and also that it is OK for judges to be engaged in the courtroom when that is what is needed to ensure that the self-represented are heard. (This last is important, because I would argue that among lawyers’ ethical responsibilities is not inappropriately interfering with judges fulfilling their duties in this area. This could happen as a result of lawyers failing to understand the emerging law in this area.)
I understand that while both the Boston and Massachusetts Bar Associations support the proposal, the publication Massachusetts Lawyers Weekly does not. Apparently they believe that the issue can be better addressed by “incorporate[ing] access to justice issues into the one-day course on practicing with professionalism that all new lawyers must complete within 18 months of admission to the bar.” This seems to miss the key points, that many law schools, and all bar review courses “teach to the test,” and that knowledge of these issues should be formally required.
I hope that the proposed change for which the Court is seeking comment, if and when adopted, becomes a national model. Also, I hope that the next step is to add unbundling and judicial engagement to the Multi-state Professional Responsibility Exam.