No Practical Training at Your Law School? Blame the ABA. Guest Blogger - Edward Wiest
Long time Build A Solo Practice reader, Edward Wiest, is a solo in Massachussetts and a Harvard Law School graduate. He wrote such a terrific comment to my frequent challenges to law schools not offering practical training, I asked him if I could use his commentary as a guest post and he graciously agreed.
It’s one thing to point out—as this blawg and others have done—that the U.S. News ranking system doesn’t tell prospective law students much about whether any law school will actually prepare them to practice, rather than merely learn, law. I wouldn’t hold my breath waiting for prospective customers to drive real change in law school curricula. There are huge institutional constraints limiting the ability of the legal academy to provide any real introduction to the world their students—whether bound for BigLaw or a home office upon graduation—will enter upon graduation. It will take more than agitation from applicants to drive real change.
ABA rules governing the accreditation of law schools—and, effectively, their graduates’ ability to sit for the bar on a nationwide basis—effectively mandate separation between the legal academy and the real world of practice. Point your browser to the ABA’s published standards for law schools. Standard 402 and interpretation 402-4 strongly discourage the use of even full-time faculty with significant outside practices (e.g., ongoing real-world contact). Standard 304(f) provides for the adoption of rules limiting full-time students’ compensated part-time work (presumably for paying clients) during the academic year to 20 hours per week. Interpretation 305-3 provides that schools are not to award academic credit for field placement if a student receives payment in excess of expenses—a substantial disincentive to creating clinical placements in the private sector (outside the context of four year law co-op programs such as those at Northeastern). Micromanagement by accreditation, however, does not extend to career services offices; Standard 511 requires only that there be "an active career counseling service to assist students in making sound career choices and obtaining employment". It doesn’t require that a placement office provide the same support to aspiring solos as to those seeking traditional employment upon graduation—as was reported here in March 2007. The battle between Massachusetts School of Law and the ABA illustrate how the accreditation rules favor institutions designed from the outset to train scholars rather than independent practitioners ready to hit the ground running after graduation. (See Chuck Newton's great post on MSL here.)
The isolation of law students from contact with the day-to-day business problems that real world practitioners face every day is also embedded by the bias in clinical programs toward civil work solely for pro bono (i.e., non-paying) clients. ABA and state law student practice rules effectively bar law students from doing real work for credit for paying customers who might teach students a few things about how to manage a client relationship, particularly one which imposes economic restraints on what the lawyer can do (can the client afford one more deposition or an appeal?). City Journal noted the problematic nature of these limitations in a 2006 article. The system—as it exists today—essentially is one in which survival in private practice is left to on the job training once formal doctrinal education tested on the bar exam ends.
You can look it up—I’m a graduate of “the” Tier I law school and proud to be one. Nonetheless, Detroit Mercy's well documented efforts to bring the real world into the classroom may prove to be a lot better idea than programs for the study of the legal profession focused on the management of large professional firms (like this one I read about in an alumni magazine). Law students, particularly the stars headed to the top tier who rely on The Vault, Above the Law, and press reports about the life of BigLaw associates as a career guide won't get that message until law schools start to spread the word that there are many pathways a new lawyer can take--and that they have modified their curriculum to do more than prepare students for a scholars' life or a shot at BigLaw. The law schools that communicate such a message effectively are those most likely to move up a tier or two with their customers—regardless of what conclusion the U.S. News survey may reach.
Edward R. Wiest
Edward R. Wiest, PC
Business Litigation and ADR
(including Securities Arbitration)
Admitted in Massachusetts, New York, and New Jersey
81 Dana Street
Cambridge, MA 02138-4310
tel: (617) 547-6500/(781) 391-9129
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