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Tuesday, March 31, 2020

More on Emergency Licenses to Practice Law: Identify and Address The Emergent Problem--and Only That Problem

I have further thoughts on Howard's post below on emergency licensing of new law school graduates and on the paper he cites to. A lot of further thoughts. The issue is important and deserving of plenty of thought and discussion, and I lack the time to edit them into fewer or shorter thoughts. So read on at your leisure or your peril.

The summary is this: We should separate the question of the emergency need for legal services in this crisis from our understanding that the same crisis may cause suffering and economic uncertainty for new law school graduates. One involves a distinctive need centering on the object and concern of the legal profession: the clientThat is what we should be thinking of, and every emergency measure proposed or tried should be directed toward the end of best serving clients--specifically, clients in regions and subject areas and under circumstances where there is an actual emergency. It's far from clear that a blanket, nationwide system of admission to the bar, however much it might ease graduating law students' very understandable concerns, actually serves that paramount interest. We should start by identifying the right problem with specificity and tailoring the best solutions to that end. Helping law students is a valuable goal, at least for law schools, but it's a separate one. Where it can be undertaken in a way that helps clients, great; where it can't, we must find some other way. But clients always come first, and if there are better ways of serving those clients who are in specific need of emergency help, we should start there. I think some of the suggestions made by the author in their short but useful paper are worth thinking about and perhaps trying. But it's not clear that they are the first thing worth trying; and whatever we do try should be hedged round with client protections, even if they result in fewer new graduates getting more opportunities for employment. I may say that with personal regret, as a law teacher, but the paramount crisis here has to do with the needs of clients, not students. 

There are also excellent reasons to rethink the bar exam--and legal education--more generally. The current emergency that the authors argue exists may help us see some current flaws more clearly. But if the argument right now is that we urgently need to do something specifically for clients, that should be our focus, not general reform. I start with a question below and move to the longer argument after the jump. 

Under what circumstances would we give someone a license to practice medicine after two years of medical school classwork, perhaps (but not necessarily) with one or two rotations of working with patients? It is not impossible to imagine arguments that some emergencies would qualify--circumstances under which the need for patient care was desperate and it was impossible to retask currently practicing doctors to meet that need. We could also imagine strong arguments against it, or against doing so unless it was quite impossible to manage otherwise. I am no expert in medical education and I imagine, with some basis, that the classwork-then-rotation model has been greatly altered over time. But I also imagine that many doctors would say that classwork alone, or even classwork with significant practice simulations, or perhaps even classwork with significant practice simulations and one or two rotations of actual patient care under close supervision, is not a sufficient qualification to render medical care without harm. If one were inclined to make exceptions due to exigent circumstances, one imagines that the exception would have to fit the circumstances and be carefully circumscribed. For example, one might insist that any emergency license be limited to work in the area most urgently requiring medical care; a crisis in emergency care would be no basis for granting an emergency medical license to practice dermatology. And one might insist that such a license involve only institutional practice, in a fully resourced hospital or large medical practice in the relevant area and involving work with and under the close supervision of experienced physicians, and not hanging out one's own shingle. 

Such a view, one would hope, would be grounded in the view that the question is what is needed for patients. Certainly someone outside the profession would be almost certain to care about patients and not about the professional welfare of medical students as such. They might not be callous or indifferent to the students; they just would take that as a question that must take a distant second place to the question of help or harm to patients. If the emergency called for X number of new (as opposed to existing) doctors in a specific field, then that would be the way to address it. The fact that other medical students might have to wait to be licensed, and would suffer personally as a result, would be sad but not relevant. 

It is quite possible that this emergency would lead medical schools and doctors to rethink what medical education should look like. Again, I pretend to no expertise and, indeed, not much knowledge. But the emergency might lead them to conclude that the qualifications for entry should differ, or that the course of medical education should involve supervised clinical care almost from the outset, or that the whole process (if undertaken differently) could be speeded up. They might shift to year-round teaching. Conversely, they might conclude that some things are right about the current model and that, no matter the emergency, you simply can't make a doctor overnight, or at least not one who is ready to offer care to patients--supervised or unsupervised. But it's doubtful that the specific emergency would be a time to address all these issues in medical education--just the specific emergency.

It's in something like this light that I view the arguments for emergency licenses to practice law referenced by Howard in his post below. Here I have somewhat more expertise, both as a legal educator and quondam practicing lawyer (trained under two slightly different systems, American and Canadian) and as a frequent teacher of the Legal Profession course. Even so, most legal educators are not necessarily experts on legal education and certainly not necessarily experts on legal practice, and I don't pretend here to know more than I do. I would be inclined to grant more expert status to my clinical colleagues on such questions, albeit bounded by the knowledge that not all law students do clinical work and so they don't necessarily see every kind of law student.

But I am certain of one thing: In thinking about these issues, our job as legal educators and lawyers is, like that of doctors and teachers of medicine, to prioritize the welfare of the client. Like (I hope) all teachers, I have immense admiration and affection for my students, something that grows with experience as a teacher and is brought home this week by the feelings one has getting to see one's students again--even within tiny boxes on a computer screen. But if, as a teacher, I give a student a failing grade, that doesn't mean I lack affection for that student or for law students generally; certainly it's not the case that if I really love my students I will give all of them As. And if it should come to pass that I ever have to tell a bar admission committee that some applicant is unfit to practice law, I will still feel the same affection for my students; certainly my affection for my students and concern for their immediate welfare doesn't mean I should always give a positive answer if I am sent an inquiry letter by a bar admission committee. Nevertheless, I do have great affection for them. As a teacher in a profession of which I am a member, however, I have a duty that counts above that affection: a duty to think about the client first. I have no duty to work to maintain legal practice as a professional monopoly, no duty to ensure that all lawyers are as prosperous as possible, no duty to ensure that there are as many (or as few) practicing lawyers as possible. I have a personal desire and institutional duty to make sure that my students are as happy as possible and that they get jobs and preferably good jobs; but subject to my higher duty to ensure that clients are well served and protected. Any reforms that I think are necessary or feasible for law school and legal licensing--eliminating a third year, requiring skills education, requiring that every student take a course in Kantian jurisprudence, improving the bar exam or replacing it with something else, or what have you--should ultimately be answerable to the interest of clients. 

None of the above is a criticism of the paper Howard links to. I assume the authors have greater expertise than I do, and I appreciate the speed of their effort and that it can't accomplish everything given its brevity. They expressly welcome input. They stress near the end of the paper that they "have focused...on the needs of clients and the legal system, because that is the first concern of professionals." They're right, and I take them at their word. They do not advocate for one solution to the problem that they perceive, but offer several options, noting that they may have different individual views on which option is best. And most of the six options they discuss in the paper include suggestions about how to provide "additional assurance of a candidate's competence." All good things. 

The authors also refer a number of times--quite a few times in a short paper--to the interests of current law students. "A substantial number of law graduates rely upon bar passage to secure employment," they write, and without that opportunity they "face months of uncertainty, unemployment, and financial hardship. And after the line at the end about focusing on the needs of clients that I quoted above, they add, "As a profession, however, we also have a duty to the students completing their legal studies this spring....[W]e need to provide humane options these new graduates[.]" And although they make a reasoned case for the urgent need for lawyers to provide client services in the present emergency, there must necessarily be a speculative aspect to it. What data or arguments they have are thus supplemented with affective words like "urgent."

In thinking about what is needed to respond to what the authors describe as an emergency for people in need of legal care, our first and last thought should be: What is needed to address that emergency? I have many personal and institutional concerns about the welfare of my own students, but no professional duty to make sure that every graduate of every law school finds a job. (I believe I do have a duty to argue that law schools not over-admit students for their own reasons, although some debate this point. I also can imagine thinking that accrediting bodies should have a global duty to ensure that as many or as few students are admitted to law schools as suits client demand and that law schools not be free to pick their student body numbers based on irrelevant considerations like rankings, tuition dollars, or their survival as institutions.) As a lawyer and professional educator, I do have a duty to ensure that every client is well served.

Like many law professors, I have a number of opinions about what ought to be done differently in legal education and legal licensing. But there is a danger in any emergency (or any other situation) of confirmation bias, of seeing any problem as best solved by what I already happen to think is a good idea, and of not letting a crisis go to waste. I should be on my guard against my own tendencies in this regard, and readers should always be wary of arguments that aim to solve a particular problem but happen to confirm the writer's own long-standing views. (Read any op-ed section of any newspaper these days to see this tendency in full bloom.) I don't make this charge against the writers of this paper, to be clear. Rather, I'm making the point that if the goal is to respond to an emergent problem, we should aim to solve the specific problem, and only that problem, responsively and effectively. Anything else is secondary and perhaps, given our natural tendency to see new issues through the lens of longstanding views, suspect.

So we should ask something like the following questions: Is there an emergency in providing legal services to people in need? What sort of emergency, specifically? What kind of services and in what locations are in a state of urgent need? Who is best suited to provide those kinds of services in those locations in the most competent and efficient fashion? How many inexperienced new law school graduates, as opposed to existing and more experienced lawyers, are needed to fill the gaps? How can we best ensure that they do so in a way that serves those clients without doing harm to them? We might separately be interested in ensuring that things like the bar exam are dealt with well and in a way that minimizes harm to graduating law students, simply because that's the job of law schools and state bars. But I don't know that this can be called an emergency. The authors talk movingly and, I'm sure, accurately enough about the many personal, emotional, and other costs currently being suffered by imminent law graduates. But that is not client-centered, not unique to them as compared to similar suffering and insecurity on the part of millions of others, and not necessarily a problem that is best solved through emergency waivers of professional competence certification and a license to practice law, as opposed to solutions such as helping them find government aid, addressing tuition and debt issues (which might harm law schools and their faculty among others, but better that than harm the individual students), and so on. I take as a general guide that if a solution to some problem would help law students but hurt clients, it should be rejected; if it would help law students  but might harm clients, it should almost certainly be rejected; and if some solution can be found that might help law students without harming clients at all, it should be preferred. 

Let me assume that there is a legal services emergency. More specifically, let me assume that there is a legal services emergency in some practice areas and in some places. Given the numbers, it's harder to argue that there is a crisis requiring emergency solutions in Alabama, or Minnesota, or New Mexico. (I live in one of those states, as do my children; I hope it's clear I'm hardly lacking in concern about its well-being now and in the near and long term.) There are obvious areas in which there is a good argument for emergent needs for legal services, such as criminal law and no doubt others. And it's reasonable to focus, as the authors do, on particular populations most in need and most lacking in resources, and who require help navigating government aid and other particular immediate needs. If we widen the net to assert that in every place and in every practice area, more people are going to need lawyers, if not now then over the next six months to four years, I'm not sure that qualifies as an emergency requiring immediate and drastic change. (Or, if it does, the solution can be more minimal, such as an emergency license with an expiration date and a requirement to take the bar exam at some future date.) The soundest question is, how many lawyers are needed to provide specific services in specific places?

The next question is who should provide the relevant services--or, to put it differently, why recent law graduates, who may or may not have clinical and other practice experience, are best suited from a client- and need-centered perspective to fill those needs. The clients most in need of services and in the most precarious positions are the ones who can least afford legal error, however innocent, owing to something like inexperience. If we are urging state bars to take emergency action owing to an unprecedented emergency, it's not clear to me why the first place to look is to recent graduates rather than already-existing practicing lawyers. There were some 180,000 lawyers in New York state in 2019. Are they all providing essential services? Are all the services they are currently providing--say, those provided by first-year associates at large New York City firms--really more essential than the services the authors point to as being in a state of emergency? Despite their lack of experience in a given area, might their general experience qualify them better to provide those specific services than new law school graduates? Is it any more or less radical to eliminate the bar exam than to demand, on an emergency basis, a higher amount of pro bono work or, paid or otherwise, that lawyers provide work in specific areas in which there is an emergent need? Which is better for clients? Or, if there are lawyers in relevant areas of practice in a state that is not in crisis, would it be better or worse for that state's bar to require them to provide services long-distance for the clients in the need-filled regions? (Surely much practice right now, in areas other than and perhaps including criminal law, will be distance practice, regardless of whether the person providing it is a practicing lawyer or a law graduate and where they are located.)

One possible practical answer is that it's much easier politically and practically to unleash new graduates than to get existing lawyers to provide needed services in particular areas in particular places. I don't mean that as an insult. I don't doubt that many existing lawyers are of their own free will extending themselves and providing these kinds of needed services. But the political economy of the two approaches is very different. That matters. A solution that's not going to happen in the real world is not a solution. But we should start from the perspective of finding the best solution to the clients most in need of emergency services, and depart from it only if we have to, and not only for the sake of convenience or because it would kill two birds with one stone. And it is not impossible to start with the best solution and see how many existing, experienced lawyers could be convinced or (to be blunt) coerced into providing emergency services, and then estimate how many more lawyers are needed, even if they are inexperienced and currently unlicensed. That raises logistical problems of its own, of course. But I'm not sure it's worse--for clients--than a blanket nationwide waiver. 

There are two other possible answers. One is offered in passing by the authors: that "these graduates are fully equipped to practice online." I think "in passing" is all that it deserves. I'm sure most of my students know how to function online better than I do. I'm not sure they know how to practice online better than already-experienced lawyers under the age of 30 or 35. And I would emphasize the difference between being equipped to practice online and being equipped to practice online. An inexperienced 3L with no clinical experience and little skills training may be better equipped to commit an error, harmful to his or her client, more speedily and efficiently and with more skillful use of technology. And the point is undercut later in the paper when the authors write that "[current] [l]awyers...are adapting quickly to the online environment." If that's true, then this argument doesn't carry much weight. 

The other is that Wisconsin already has a diploma privilege for graduates of its states' law schools and that "this system has worked well for Wisconsin" and the experience shows that "risks to the public are minimal." But Wisconsin's privilege is strictly administered, with students required to make satisfactory grades on 30 credits in mandatory subject areas and another 30 credits in specified elective subject areas. It also surely depends on the small number of law schools, their closeness to the bar, the presence of a board of visitors or dean's advisors, the size of the bar, and the nature of the state legal community. As the then-director of Wisconsin's board of bar examiners observed some time ago, if it works it is because Wisconsin uses rigor and regulation to make it work. The authors argue that a constraint limiting the privilege to the state in which the graduate went to law school "would hamper efforts to serve clients, and would be particularly problematic for graduates (and their employers) who have already accepted jobs in other states." This, it seems to me, is the equivalent of arguing that we should follow Wisconsin's privilege while abandoning the features that have made it "work[] well" and made "risks to the public [] minimal."    

Let us assume that clients in some places need legal help in some areas on an emergency basis and that some number of recent or imminent graduates are needed to help fill that need (in addition to the use of more experienced lawyers who are thus more likely to be able to render experienced and more-than-competent service to those clients). In my view, the most promising lines of inquiry followed by the authors in the paper involve what they call the "Emergency Diploma Privilege-Plus" and "Supervised Practice" options. The first option is, so to speak, the bare Wisconsin privilege with the addition of substitutes for some of the Wisconsin duties that appertain to that privilege; the authors call it a diploma privilege-"plus," but it's more of a way to ensure that the privilege actually does what the Wisconsin privilege does. It requires things like certification that the student successfully performed a clinic or externship while in law school, completion of "bridge-the-gap programs," an affidavit from an employer or externship supervisor, and area-specific CLE program completion.

The second option is familiar to me given that I completed articles of clerkship in Ontario, i.e. working under supervision as an "articling student" for a year before joining the bar, although it's a little different and more minimal than that. It would allow new graduates to practice under the close supervision of a licensed lawyer, and admit them to practice after they had completed 240 hours of supervised legal work and obtained an affidavit from the supervisor attesting to their competence. Given the point of dealing with an emergency need for client services in particular places and subject areas, one could imagine a version that specifically granted the ability to practice under close supervision by a lawyer and in the relevant areas of need, and that continued that supervisory requirement for much more than 240 hours. (At the time, my articling status involved working under supervision for a year--with a form of bar exam afterwards.) These new lawyers might not be able to go off after a few months and join an M&A department or hang out their own shingle somewhere providing commercial real estate work; but that is not the main point, as I take it, of changing the rules on an emergency basis and for urgent reasons. At that point, it would really be about helping law students, or about revising the rules for bar admission, not about serving the emergency needs of newly vulnerable clients in a crisis.

I think these two options are well worth considering. I certainly applaud the authors for raising them as options, as well as for the other options they examine. I offer no opinion about the others. (One--exams administered in small groups--seems ridiculous on its face given our current concerns about eliminating unavoidable personal contact; but although I share that reaction and many others will, its plausibility really depends on information we arguably just don't have right now.) UPDATE: I also find this suggestion from Derek Muller interesting--insufficient in itself, as I think he recognizes, but a useful addition to the list of ideas and something law professors who favor action on the bar exam ought to be eager to spend the time doing. 

And it is worth adding that in a general sense, I support rethinking the bar exam and professional licensing for legal practice generally. I learned vastly more, and of a more important nature, from articling for a law firm for a year in Ontario and getting edited, praised, or chewed out by lawyers than I did from cramming and sitting for the bar exam in the US. I also support rethinking legal education. On the one hand, it is understandable that a number of recent reactions to the necessary move online have consisted of op-eds in the Chronicle of Higher Education worrying that this will all become a way for universities to argue that we need fewer faculty or less in-person education, that it will become a vehicle for neoliberal this-or-that, and so on. On the other, readers who find the authors' arguments convincing--who think that recent law graduates will be in a position, either under special conditions or vel non, to provide competent legal service to clients (and if it's not competent, we shouldn't be urging them to provide those services, regardless of what it means for the law students themselves)--should certainly be giving thought to what we do and don't need in legal education. Why not two years of law school and one year of supervised employment? Why not one or one-and-a-half years of law school with a year or half-year of supervised employment? Why not insist on the same required, practice-oriented courses and credit numbers that the Wisconsin courts insist on as a condition of the diploma privilege, hiring to meet those needs--and, if it turns out that there is no room for or interest in many of the courses many of us like to teach, on law and literature or legal history or social ontology and the law or contemporary constitutional theory, then too bad? Why not shrink the full-time faculty further, focusing in hiring on those who are most skills-oriented in their qualifications and teaching, and rely more heavily on adjunct practicing attorneys? (This is not a criticism of academic lawyers. I like academic law. But I have no principled objection to the idea that more of us ought to be shifted over to Departments of Law across campus, at salaries commensurate with those of other departments and without the same professional training responsibilities. I might not like it personally, but that doesn't make it a bad idea. No one promised me that being a law teacher would be a great gig.)

One could imagine someone reacting to these questions by saying now is not the time to address all of them--to remake the bar exam and legal education (although the two are probably closely related and one may well entail the other). I agree. The question is how to address a specific and urgent problem as closely, directly, and effectively as possible. Other matters, however important, can or must wait until later. (This is also a recipe for quietism, admittedly. As I've argued before, on reform issues a sense of urgency and energy is, in a sense, called for especially in moments of non-urgency, when reform is both least likely and most likely to be undertaken in a sound and successful manner.) But this of course applies to the whole question of what we should or must do right now. What we should and must do is identify specific emergency-related crises and needs with respect to the provision of legal services for vulnerable clients. Other needs and concerns must come second. There are good reasons for law schools to find ways to help law students. But if that is a crisis, it's not the same kind of crisis, and it should only be alleviated through something like a bar exam waiver if it would not otherwise have any negative impact on clients, who are the only legitimate justification for our guild status. As little as I tend to like the bar exam, as oppose to other methods of certifying would-be lawyers as fit to practice, I don't think it would be a sound move to get rid of it nationally without other safeguards, and in any event a nationwide waiver wouldn't really be a response to the emergency that's at the heart of the authors' proposals.        



Posted by Paul Horwitz on March 31, 2020 at 01:36 PM in Paul Horwitz | Permalink


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