Steven Harper
Steven Harper (Karen Hoyt)

For any lawyer, credibility is everything. A key reason that the American Bar Association’s Task Force on the Future of Legal Education’s report and recommendations [PDF] were so worthwhile was the stature and credibility of the group’s participants, especially its chairman, retired Indiana Supreme Court Chief Justice Randall T. Shepard. Although imperfect, the panel’s effort and outcome have received widespread and well-deserved praise, notwithstanding the reservations expressed by Am Law Daily contributor Matt Leichter.

But with regard to one vitally important issue—the cost and financing of legal education—the task force punted. Now, a second panel formed to address that specific issue, the ABA Task Force on the Financing of Legal Education, is confronting a credibility problem at the outset.

The Best Intentions

The chairman of the new task force, Dennis Archer, is undoubtedly a decent man trying to the right thing. In fact, Archer, the chairman emeritus of Dickinson Wright, has an impressive history of public service that includes a stint as ABA president (2003–04) and mayor of Detroit (1994–2001).

But as a former associate justice of the Michigan Supreme Court (1986–90), Archer understands that appearances matter. In fact, the mere appearance of impropriety in a case is enough to prompt a judge to step aside. It’s not a question of personal ethics. Rather, it’s a matter of public perceptions about the integrity of a decision-making process and its outcomes.

Since 2010, Archer has been a member of the National Policy Board of InfiLaw, which owns three private ABA-accredited, for-profit law schools: Arizona Summit Law School (formerly the Phoenix Law School), Charlotte School of Law and the Florida Coastal School of Law. According to the InfiLaw website, the board on which he sits “provides counsel upon the strategic direction and long-term plans for the InfiLaw system of independent law schools.”

The Business Model

Annual tuition and fees at all three InfiLaw schools exceed $40,000. According to their ABA disclosures, meanwhile, the schools have been big beneficiaries of the current dysfunctional system of financing that funds legal education. At Arizona Summit, median federal law student debt between July 1, 2012, and June 30, 2013, was $184,825. At Florida Coastal, it was $162,549. Charlotte Law School‘s median was $155,697, plus $20,018 more in private loans.

At all three law schools, students carried no “institutional financial plan debt.” Translation: While their own investment in their students is minimal, the InfiLaw schools have plenty of federal student loan dollars in the game.

A Disturbing Trend

Even as the market for lawyers has languished, the InfiLaw schools have increased enrollment. According to the ABA, the three schools graduated a combined class of 679 students in 2011. Nine months later, only 256 of them, or 38 percent, had long-term, full-time jobs requiring a J.D.

By last year, the combined combined graduating class for the three schools had swelled to 1,191 students. Only 428 found full-time, long-term J.D.-required employment. That’s 36 percent.

The Arizona Summit website’s description of employment outcomes for its graduates is typical of how the three InfiLaw schools portray student outcomes to prelaw applicants:

“Arizona Summit Law School was able to confirm the employment status of 99 percent (278 out of 279) of its program completers [sic] who graduated Sept. 1, 2012, through Aug. 31, 2013. The job placement rate for these graduates was 90 percent. This figure was calculated using the NALP formula for calculating job placement rate. Therefore, the 90 percent job placement rate was calculated by adding together all the employed graduates (250) and then dividing by the number of graduates whose employment status we were able to confirm (278). In accordance with NALP guidelines, the number of employed graduates includes all employment positions, including legal and nonlegal positions, permanent and temporary positions, full-time and part-time positions, and any positions funded by Arizona Summit Law School.”

Another document posted on the site reveals that 25 of those jobs were “law school– funded positions,” 22 of them short-term.

The Challenge of Leadership

Perhaps it takes an insider, such as former Justice Archer, to accomplish the kind of monumental change that his constituents at InfiLaw may well resist. Perhaps this will be a “Nixon goes to China” moment for him and the profession. Maybe it will be the equivalent of President Lyndon Johnson muscling civil rights legislation through the Senate—a Texan overcoming a resistant South in the 1960s.

On the other hand, if the latest ABA task force produces anything less than revolutionary recommendations that finally make law schools financially accountable for the fate of their graduates, everyone will laugh it off—as they should. Unfortunately, there’s nothing particularly funny about the situation.

Steven J. Harper is an adjunct professor at Northwestern University and author of “The Lawyer Bubble: A Profession in Crisis” (Basic Books, April 2013) and other books. He retired as a partner at Kirkland & Ellis in 2008, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at http://thebellyofthebeast.wordpress.com/. A version of the column above was first published on The Belly of the Beast.