(Wavebreak Media LTD)

Is paying a law student for the services he or she renders in an externship so fundamentally inconsistent with the educational objectives of such a program that academic credit should not be awarded to the student? The American Bar Association’s Council of the Section of Legal Education and Admissions to the Bar recently answered that question with a resounding “yes.” And the council took that position in the face of its own committee’s recommendation to abandon the pay ban in place for some time.

Not surprisingly, the ABA’s Law Student Division had lobbied hard for elimination of the prohibition against both compensation and credits in the same program, claiming it imposed an undue financial hardship on law students. The council was ultimately persuaded, however, by the argument of the Society of American Law Teachers, who maintained that compensation and academic credit for the same externship “will necessarily undermine the academic focus of field placement experiences.”

A cynic might suggest that the opposition from the academics was motivated more by a fear of losing students interest in their unpaid clinics or, at best, a desire to ensure enough students apply for judicial or government externships, which are not likely to offer compensation. But the law teachers claim the notion that law students in an externship should not be paid is predicated on the belief that an employer paying a law student in a clerkship is naturally concerned about realizing a recovery on his investment. As such, his primary concern is having the law student perform work that first and foremost benefits the law firm. If that research or drafting experience also has a collateral educational benefit, so much the better.

The pure externship, on the other hand, is unencumbered by the profit motive and so can be focused on engaging the student in the actual lawyering being performed by her supervisor, so that she comes away more fully exposed to the intricacies and subtleties of the legal process and the reasoning inherent in it.

At least that is the theory. But anyone who ever worked in a law practice setting during law school knows how valuable it is to actually be part of the process; to see real lawyers at work on real cases, even if it meant first digging through endless research assignments and tedious document production. In short, a paid clerkship can—and often does—provide the rigorous legal training that an externship is expected to provide. Compensation and learning simply are not mutually exclusive, and the council’s continuation of its blanket ban on any and all paid externships fails to recognize that reality.

Law students today are typically graduating with crushing debt often exceeding several hundred thousand dollars. They should not be denied the opportunity to mitigate that financial burden by earning dollars and academic credits in the same externship. It would have been far more appropriate for the council to have promulgated strict and rigorous requirements designed to ensure the satisfaction of a meaningful learning experience in a paid externship or clerkship and then have the law schools award academic credit for those that meet those criteria.

The ABA House of Delegates will review this and other council positions on accreditation standards when it meets next month at the ABA annual meeting. The house should request the council revisit its blanket payment ban and consider a more nuanced approach. Surely the council can develop externship standards that recognize both the law student’s need for a valuable academic experience and her need to pay her tuition bills. •