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Thursday, May 07, 2020

Using the Diploma Privilege to Reflect on What We Do and What We Ought to Do

I suspect most readers would agree that the ABA Journal gets worse every year, perhaps understandably. (It costs money to put out a good journal, among other things. And the market for eyeballs has gotten fiercer.) But I thought this article, which I found via Paul Caron's blog, was pretty good. There has been a good deal of both sincere and strategic invocation of Wisconsin's diploma privilege of late as we look to alternatives to the bar exam in the short and long term. But those invocations are often heavier on citation than on detail. This article quotes Wisconsin lawyers and educators on why they think the diploma privilege works in their state. It could do more still, but it's a good start. (Its author, Stephanie Francis Ward, deserves credit by name.) In doing so, it reflects, and allows reflection, on what lawyers need and on what is needed to train them--and, by contrast, on what we actually do to train them.

On the first point, the lawyers quoted emphasize a few points: 1) the lawyers they see who get into trouble are not necessarily young, but what one might call early-mid-career, some 10-15 years into practice; 2) their troubles stem less from incompetence than from dishonesty and poor judgment; 3) specifically, according to the  director of Wisconsin's Office of Lawyer Regulation, the causes are "a poor or nonexistent mentor; anxiety, depression and chemical dependency; inadequate organizational skills; character issues; and a lack of business acumen."

For practicing lawyers and for those who teach legal ethics and thus encounter discussions of the subject, at least, much of this won't be terribly surprising, although it's useful to see it nicely packaged. It is possible that the 10-15 year point has to do with the size and nature of the cases one gets, with the germination and worsening of substance abuse or other personal problems over time, or with emerging from under the supervision and care of a mentor and from working in a team to working alone or as a team leader. But it also invites more general thoughts about the life-cycle of professional practice, or indeed of work in many fields, and of the strengths and weaknesses of each period of one's professional life, in one's inexorable journey from energy and callowness, to skill and hubris, to wisdom and senescence.

The emphasis on things other than legal knowledge is noteworthy. Do we stress honesty, integrity, and virtue enough in legal education? In life in general? I doubt it, in part because I doubt one can ever stress it enough. Certainly I stress character and honesty when I teach legal ethics, and add grace notes about it in all my classes. But I could do more. There is a tendency in legal education either to stress technical acumen more than character and virtue, or to confuse the teaching of social justice, or right thinking, or just policies, outcomes, and theories, with the teaching of good character, and to think one has accomplished the second task if one has emphasized the first set of ideas. Of course they are not the same. One can be a person with fine ideals and a lousy character, or commendable in one's goals but lousy in one's tactics, or possessed of a decent set of views on personal character but withal weak or untrustworthy. 

I also find the emphasis on organizational skills useful--and painful. Those who teach legal ethics or are in practice know that the most common causes of disciplinary complaints involve neglect of cases and failure to communicate with clients, as well as complaints about fees and more serious problems such as poor management of funds or fraudulent activity. Most of these involve organizational issues and many of them could have been prevented relatively easily.

I emphasize things like returning calls when I teach legal ethics in part because (and here's the painful element) my organizational skills are much poorer than they should be. People who harbor ambition or simply want to be well thought of don't like to confess such things out loud; I certainly don't. But my inbox is too long, I have too many unanswered emails or phone calls, I sometimes delay the painful duty in favor of the easy activity (like blogging), and I don't make the best use of my RAs or my assistant. I am not alone in this, surely, but that doesn't make the realization much less painful. When I reflect on what I did poorly in practice and still haunts me, I remember the failure to stay properly in touch with a particular client. Had I remained in practice, I suspect that organizational issues, not legal acumen or larger character issues of honesty and integrity, would have been my worst problems. Perhaps I would have overcome them and perhaps not. Like most people, law professors tend to focus on what they are good at and assume these are the most important skills or qualities to have. Thus they are perhaps more inclined than they should be to assume that legal acumen and raw intelligence are the key to professional success--and, accordingly, that they would have been successful lawyers had they stayed in practice for the long haul. Surely these are requisite skills and no doubt they are some lawyers' Achilles' heels. But even if they're necessary, they're not sufficient, nor are they the cause of most client complaints.

Do we teach these qualities? Can we? Is law school set up to teach them, or does it do so only incidentally, such as by cramming several exams into a short period? No doubt many of us grant extensions on papers and such fairly generously, thinking that the quality of mercy is not strained, and perhaps that extensions happen often in practice. But perhaps we should be stricter and more Draconian about such matters in law teaching: insisting in practice and not just in theory on excellent attendance and marking students absent for lateness, refusing to grant extensions short of truly dire circumstances, setting hard deadlines for intermediate steps in the paper-writing process and marking students down for failing to meet them, and so on. Better organizational training would entail greater administrative costs for law professors and might hurt their teaching evaluations or lower their course enrollments. It might have a disproportionate impact on some students. The proper answer to these concerns might well be, tant pis. Better that we bear the brunt than that clients do, or that some students suffer now rather than having both them and their clients suffer later. 

Some of us, in writing about why the Wisconsin diploma privilege cannot be loosely invoked or suddenly applied to all schools in all states, have emphasized its insistence on a set curriculum that takes up a great deal of law school. It's thus interesting that the lawyers and educators quoted in the story don't emphasize this in particular, although perhaps other Wisconsin lawyers and law teachers might. What they do emphasize is captured in a nice quote from Gordon Smith, a former Wisconsin prof who is now dean at BYU:

"Law schools aren’t set up to be the gatekeepers to the profession in the same way they might be if they really were the gatekeepers. I suspect that those of us who taught at Wisconsin or Marquette recognize that there’s a special obligation to ensure that the students who graduate are competent to practice law. We’re the last stop, other than character and fitness."   

Again, this is useful for thinking about what is needed to train lawyers, especially in the absence of a bar exam, and about what we actually do or should be doing. It does not contradict a modern emphasis on things like wellness, student happiness, thinking of students as consumers (or students thinking of themselves as consumers), making legal education available to as many students as possible, or legal education as a good in itself. But it may be in some tension with it, or at least suggests that these things are not ends in themselves but should be thought of in terms of how best to do the job of gatekeeping. Treating students well, compassionately, and as human beings does not, for example, mean that we shouldn't flunk them if they do poorly. Providing more resources for learning how to write instead of assuming students already have those skills, and spending time patiently teaching them those skills, doesn't require that one pass a student who still can't write competently (at the least; why not insist that in order to pass, they be able to write well?) at the end of that process. (The same is true of requiring mathematical skills for law students, something we don't really insist on at all even if we should.)

By and large, it seems to me that most of our gatekeeping happens at the front end. At many schools, the "gateway" schools or degree mills excepted, it's hard to get in but not so hard to graduate. (For that matter, at virtually all law schools it's very hard to get a job as a professor but the tenure rate is very high--higher than in other fields. We emphasize uniform high standards along specific dimensions, not experimentation and pluralism in hiring with more error correction at the tenure stage. At that, teaching and service are less important than scholarship for tenure, and even then the demands are not terribly great. I'm not sure whether these similarities are related or not. I suspect the latter at least affects the former.)

There are plausible justifications for this. But those justifications are also subject to the normal tendency to be influenced by self-interest or institutional need. It is true that one can do other things with a law degree besides practice law, or gain some value from a one-year certificate in, say, legal compliance--and it is also true that both justifications have the benefit of putting students in seats and money in the bank. We are more rigorous in selection (in substantial part for ranking-related reasons) than in evaluation and weeding out. We are more concerned with basic performance than with competence to practice law or character and fitness. Our grading curves have more to do with ranking than with culling, and we mostly test for things that are more measurable, and easier and cheaper to administer en masse, than testing for genuine competence to practice law--which, again, we can justify on the basis that practicing law is not the only function of a legal education. Most of the harder and more unpleasant tasks we slough off onto the bar, sometimes with the justification that it's not our job or not our skill set, or that if law schools turfed students based on fitness and character concerns they would be more intrusive and perhaps more arbitrary or discriminatory.

Certainly a focus on acting as strenuous gatekeepers, at least in terms of competence to practice and perhaps also in terms of character and fitness, would require a change in who we hire (look at all the Ph.D's in this year's hiring report), how we teach, how large our classes are, how we evaluate, and how much we spend, individually and institutionally, in terms of time and resources. It would make us less profitable and perhaps more disliked by students. And it would emphasize our function as a professional training institution, not an academic and scholarly field, and thus push us further away from the century-long dream of being thought of as a genuine academic discipline, more like a history department than a beauticians' school.

I offer no strong conclusions. My goal is simply to suggest that the article provides food for thought about what the Wisconsin lawyers and educators think works about their setup and why, and thus about what law schools in general ought to be doing--and what they are actually doing. I can't help but note a certain irony or tension in the current circumstances, in which we are both urging something like an emergency diploma privilege approach and have chosen to adopt pass-fail grading for the semester--with, I am guessing, an assumption or instruction on the part of most schools and professors that few if any students should actually be given a failing grade. We are thus simultaneously using the gatekeeper approach to justify current emergency measures and moving even further away from actually acting as gatekeepers. I'm not criticizing this, or not overmuch. We deal with sudden circumstances as best we can. And much of the movement quickly turned in the direction of supervised rather than unrestricted practice. (Although, on this point, it's worth noting the Wisconsin lawyer regulation official's quote identifying a "poor or nonexistent mentor" as a leading cause of disciplinary trouble. A proper system of supervised practice demands that we give thought to what sound supervision actually requires and impose meaningful and costly demands on both the supervised and the supervisor.)   

But in thinking about longer-term models, we ought to think about what we need to be doing and how it differs from what we do currently. We ought to understand the role of things like compassion more precisely, as a way of dealing with people and their problems and getting the most and best out of them, and not mistake it for the absence of high standards or an unwillingness to make hard and painful decisions--including the decision that someone doesn't belong in law school or in practice. We should avoid the temptation of wanting to be liked, or likable, or popular, especially by leaving the unpopular jobs for someone else: bar examiners, or character and fitness committees, or disciplinary bodies. We shouldn't necessarily keep the features we have now--cheap exam methods, light tenure standards, high graduation rates, large classes, multiplying non-degree programs, aping other academic departments, or what have you. We certainly shouldn't retain them simply because we like them, or because they make us feel like academics and not professional trainers, or because they will ensure that fewer schools go out of business, even if there are independent and plausible justifications for those features. This seems like an excellent time to reflect on what we do and what we should do, and to think about ways we can make life more demanding and less pleasant for law professors and law schools, and perhaps even for law students.       

Posted by Paul Horwitz on May 7, 2020 at 11:42 AM in Paul Horwitz | Permalink



Posted by: Ashima Gupta | Feb 5, 2021 4:21:48 AM

I agree entirely that law schools should focus more on preparing students to be competent lawyers--but that doesn't require abandoning our scholarly ambitions. I started my academic career as a very pointy-headed academic (CA clerkship, S Ct clerkship, 18 months of actual practice); taught purely doctrinal, "theory," and interdisciplinary courses for about 25 years; and then moved into primarily clinical teaching. I have found the theory and intellectual challenges in the clinic much deeper than in any of my earlier courses. I have also continued to publish scholarship, and know other clinicians and writing professors who do the same. The time demands of any type of experiential teaching definitely are higher than in the doctrinal classroom, and there is somewhat less time for scholarship; I don't want to gloss over that. But scholarship doesn't disappear, and in many ways it is enriched.

I am currently co-PI with Logan Cornett at IAALS (Institute for the Advancement of the American Legal System) on a study ("Building a Better Bar") that is exploring what new lawyers do during their first year of practice--and what skills/knowledge/character they need to perform competently. With the help of a wonderful team of researchers at other schools, we have held 49 focus groups (one more to go!) in twelve states. 4/5ths of those groups were with junior attorneys, the other 1/5th with supervisors.

This is qualitative research, using NVivo software as a coding tool, and we are deep in the coding. The full report won't be available until December but I think it will provide lots of information for schools that want to structure their curricula to better prepare students to practice law--both entry-level and over a lifetime. Some things in our curricula need to change, but many could stay the same. It will take some pushing past self-interest among tenured faculty to achieve this goal, but not complete self immolation. I hope that you and others will be interested.

Our research is also designed to inform the licensing process. One problem with the current debate over licensing lawyers during the pandemic is that the current bar exam has very little relationship to practicing law. It simply replicates law school, while magnifying some of the worst features of our testing. Memorization, multiple choice questions, and 30-minute essays? These have very little connection to law practice, and bar exams have never been validated to have that connection (as licensing tests in other fields have).

So far, Nevada has proposed the best approach to licensing during the pandemic. The bar examiners in that state have proposed giving the exam online and remotely, so that graduates can plan with some certainty to take it. The exam will be composed entirely of essays and a performance test (the most valid part of the current bar exam), with more time to answer and open book access. Nevada will have some difficulty assessing these exam answers compared to previous years, because the format will be so different. There are also some access problems for remotely administered exams, but the bar could provide testing sites for those who lack secure internet access or a quiet place to take the exam. The Nevada Supreme Court will decide by the end of this week or early next whether to accept this proposal. No solution is perfect this summer but it is, to date, the best one I've heard.

Posted by: Deborah Merritt | May 14, 2020 11:48:10 AM

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