September 2012 Bar Bulletin
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September 2012 Bar Bulletin

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Residency Programs for Lawyers?

By Richard Mitchell

 

The Law School Law Firm

In the fall of 2011, professors Bradley Borden and Robert Rhee published a 12-page essay in the South Carolina Law Review – "The Law School Law Firm" – whose impact has yet to be fully absorbed by the legal profession.1

In their paper, Borden and Rhee make a simple argument. To address the chasm between law school education and law practice, law schools should set up professionally managed, revenue generating, nonprofit law firms, which are separate from the law schools, to train newly minted lawyers. The often-debated issues of whether law schools are graduating practice-ready attorneys, and whether curriculums should include more practice-oriented opportunities, focus on a traditional a three-year education model. What is needed, Borden and Rhee argue, is a radical break from the current legal education model and the implementation of a law school law firm system that acts as a law residency program for new graduates.2

In essence, practical training will be meaningfully achieved outside of law schools (and law firms for that matter) and before a newly minted graduate is expected to operate independently within a law firm setting.3

Law School Should Be Like Medical School

Much of what is spurring recent scholarship around legal education reform, and in particular Borden and Rhee's law school law firm idea, can be understood in the impact of the Great Recession. Several well-known factors call into question the value of a legal education and the ability of new lawyers to become skilled practitioners within a reasonable amount of time, such as:

  • increasing tuition rates;
  • the scaling back, if not wholesale rejection, of training programs for junior associates within law firms;
  • the shrinking marketplace for legal jobs with the industry producing less than 50% of the jobs needed to employ law school graduates annually; and
  • law firms re-tooling their delivery of services to produce more at a lower cost.

In November 2009, the American Bar Association's Commission on the Impact of the Economic Crisis on the Profession and Legal Needs issued its report, "The Value Proposition of Attending Law School."4 In that report, the commission essentially concluded that going to law school could result in more financial difficulty than law students expected. Clearly, with the ABA's cautionary statement to future law students, something has to change.

So, is the law residency idea the complete solution to the problem? Not really, as the problem is still a lack of practical training and low demand in a shrinking economy. But it's a good start.

The Massachusetts Bar Association's (MBA) Task Force on the Law, Economy and Underemployment issued its analysis of the challenge in May of this year, in a report called "Beginning the Conversation."5 The MBA's task force compared law schools to medical schools during the 2010–2011 academic years. Interestingly, the task force noted that medical schools had a 43.6% admission rate, with approximately 18,665 medical graduates in a marketplace that anticipated a shortage of physicians by 2020. Meanwhile, law schools had a 68.7% admission rate, with approximately 49,700 law graduates in a marketplace that could absorb less than 50% of the graduates.

As set forth in the MBA's task force report, part of the problem "appears" to be that law schools are producing more lawyers than the market requires. So while there is something to be said about reducing the number of law graduate produced annually, which law schools will need to address, there is also the challenge of ensuring that the legal needs of those underserved are met.

The ever-increasing legal need of the underserved in our community begs the question: With so many underemployed lawyers in the marketplace, why are we not training them and putting them to work the community?

The Law Residency Program

The law residency program idea has a role to play here. Such a program could be constructed in much the same way that medical residencies are set up. It could operate as an independent, nonprofit law firm, and be managed by an experienced lawyer/administrator. It would be a practical teaching environment with a distinct focus on the needs of the underserved in the community.

Following graduation, newly minted lawyers could apply to become a resident of the law school law firm. If accepted, the law residents would be compensated while residents, and practice across a wide range legal fields with emphasis on their chosen field.

Over the course of two to three years, residents could rotate within one or more of three core areas (civil, criminal, corporate) and gain practical experience from seasoned practitioners and academics on a range of practice areas in each rotation. Following their periods of residency, graduates would be certified as having completed at least one rotation and would then enter the private market in much the same way a medical resident enters the marketplace.

All residents would perform work related to the law residency program's clients (law firms, nonprofits and walk-in clients), in addition to low-cost and pro bono services at a minimum amount of time. The residency program's clients would pay a reduced rate for the services provided. In the interest of meeting training goals, the resident would have a reduced billable hour requirement.

Skills checklists developed for each of the three core areas would be used to assist residents in identifying and selecting work assignments from the available work. Work assignments would be distributed, monitored and supervised by the law residency program's senior lawyers (practitioners and professors) to ensure that each resident is accumulating the necessary practical skills to complete the residency. Following graduation from the residency, the program's clients would have an opportunity to hire the graduates.

A network of mentoring attorneys, whether solo practitioners or lawyers in mid-size and large firms, would support the law residency program via a listserve and other informal means. The law school law firm would develop and produce programs related to practice management and designed to assist practicing lawyers who are winding down and selling their practices, as well as solo practitioners who have just hung out their shingles. The goal would be to connect the residents with the vast majority of our bar who are small and solo practitioners.

Such a program could do for the residents of our community and new lawyers what medical residencies have done for doctors and the healthcare community for many years. In short, new law graduates would enter the marketplace with marketable skills and the community's needs could be addressed!

While all the mechanics and legal issues related to this idea have not been resolved, it remains one worth debating. Surely, the result would be a better-educated, more competent lawyer who is capable of providing high-quality legal services for all members of the community, regardless of their ability to pay. What do you think?

1 Bradley T. Borden, Robert Rhee, "The Law School Law Firm," 63 S.C. L.Rev. 1 (Autumn 2011).

2 Id.

3 A special thank you goes to William Becker, Esq., who has discussed, debated and shared his ideas about a law school residency program with me over the last few months.

4 http://www.americanbar.org/content/dam/aba/migrated/lsd/legaled/value.authcheckdam.pdf

5 http://www.massbar.org/media/1246788/beginning%20the%20conversation.pdf

 

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