Law schools have caught plenty of flak in recent years from critics who charge that they routinely produce graduates who can write a law review article but cannot draft a contract or interview a client. Now the State Bar of California is mulling whether to impose a practical skills training requirement on lawyers applying for admission — a move some legal academics say is unnecessary and could stifle innovation.
“My personal judgment is that we don’t need this right now,” said Stanford Law School Dean Larry Kramer, noting that many law schools have been moving to add clinics and other skills-based courses. “I think they’re being a little too quick without recognizing what’s already going on.”
A state bar task force will soon begin examining whether new attorneys must attain a certain level of hands-on training before being admitted to practice in California. The discussion is still in the early stages, but ideas being kicked around include requiring an internship or mentorship program; a set number of skills-training hours; or a year-long course for 3Ls that covers real-world lawyering skills.
The Task Force on Admissions Regulation Reform is scheduled to issue its recommendations in December 2013. Whatever it decides, the repercussions could be major. California’s bar is the largest in the nation, so the ripple effects would reach law schools and bar associations outside the state.
“This is not a new issue,” said State Bar of California Executive Director Joseph Dunn. “The debate about practical skills training has been long-standing within legal academia. But because of their paralysis, in the last few years the debate has started to seep into the regulatory bodies at the state level that govern the admission to the practice of law.”
The state bar lacks authority to mandate law school curricula, Dunn noted, but schools in California would have little choice but to adjust should the bar go in that direction. Dunn predicted that law schools will push back, as they have in previous years when bar regulators have taken up the training issue.
“We’re probably going to hear the usual opposition that has been in play for decades from legal academia, which is, ‘We already offer robust options, clinics, internships, etc. There is no need to convert this into a mandatory requirement that would force us to amend our curriculum, which might impact our ranking on U.S. News & World Report,’ ” Dunn said.
The idea of a bar-mandated practical skills training requirement doesn’t sit well with Erwin Chemerinsky, dean of the University of California, Irvine School of Law. He is a vocal proponent of practical skills training — Irvine was founded in 2009 with a focus on real-world training and is the first California law school to require students to complete a clinic in order to graduate — but Chemerinsky is uncomfortable with the bar making rules that would influence law school curriculum.
“I have very mixed feelings,” he said. “On the one hand, I stringently support skills training in law school. On the other hand, I don’t like the idea of the state bar saying, ‘This is what you should be teaching.’…Law schools should decide what they teach. Not the bar.”
Dunn argued that ensuring that new lawyers can adequately represent their clients falls squarely within the function of the state bar, which has a responsibility to protect consumers of legal services. California bar president Jon Streeter suggested the matter is more important than ever, given that so many recent graduates have been unable to find jobs at law firms and instead have hung out shingles of their own. As solo practitioners, those new attorneys miss out on the mentoring and learning opportunities that law firms provide, he said.
“We want to ensure that everyone who begins the practice of law is ready to meet those obligations,” Streeter said. “Law schools have done a yeoman’s job in introducing clinical education on a scale that was unworkable two or three decades ago, but they’re not there yet. I’d like to see us close that gap.”
Stanford’s Kramer begs to differ. Many members of the practicing bar don’t realize the strides law schools have taken away from the strictly lecture-based model, he said.
Even at law firms, clients are beginning to object to underwriting associates’ on-the-job training. The changing demands of the legal job market have put a spotlight on practical skills training and prompted many law schools to increase the number of courses that teach students through real-world legal work such as representing clients in clinics, learning negotiation techniques, and drafting contracts and pleadings.
“I think law schools, even without the bar’s intervention, are responding to market pressures and have implemented skills training with plans to add more,” Kramer said. “Bar associations are largely populated by lawyers who went to law school a long time ago, when there was no skills training, and their perceptions are out of date.”
Better to allow law schools to experiment, Kramer argued. Strict regulations on what and how law schools teach would inevitably stifle innovation and force all California schools into the same mold, he said.
Not all law school administrators in California would oppose a mandate. Chapman University School of Law Dean Tom Campbell said it wouldn’t be a particular burden, since his school is already heading toward a much more skills-intensive curriculum. For example, the faculty is considering pairing traditional classroom courses such as real estate and labor law with courses in which students put that classroom knowledge to use in simulations or real-world projects.
“Of course, there will be some schools that feel curriculum is their exclusive prerogative,” Campbell said. “But I wouldn’t agree with that, because law is a profession and we’re a professional school.”
Cost certainly is one consideration. Clinics and simulation-based courses generally require a lower student-to-faculty ratio than do traditional lecture courses, and consequently require more resources. Chapman has managed to keep costs down by relying on adjunct professors eager to share their practical experience, Campbell said. Irvine relies on faculty members to teach its required clinics, Chemerinsky said.
Among the issues the task force will examine is how to handle the admission of lawyers from other states. It could impose some sort of a mentorship requirement for those individuals, or grant waivers to attorneys with a certain number of years’ experience, Dunn said. The panel will also debate what practical skills should be required and how to evaluate courses. The cost to the bar of overseeing such a requirement is another matter the task force will consider.
State bars in other states have wrestled with the question. For example, the Oregon State Bar and the Oregon Supreme Court worked together to create a mandatory, yearlong mentorship program for new lawyers that was launched in 2011. Delaware requires lawyers to complete a five-month clerkship. Mentorship requirements exist in Georgia, Nevada, Utah and Wyoming. The Washington State Bar Association considered mandatory mentorships and practical-skills training in 2010, but ultimately opted to develop a special CLE course for new lawyers. The practical-skills training requirement was deemed too costly.
As for California, Dunn acknowledged that a bar-coordinated mentorship program would be difficult to manage in so large a state.
Streeter plans to name the members of the task force during the next several weeks. The panel will include three legal academics, five current or former members of the bar’s board of trustees, three current or former members of the committee of bar examiners, two state judges, two general counsel, three practicing attorneys and two members of the public, in addition to a chair.
In a second phase, the task force will look at whether to end the practice of allowing graduates of unaccredited law schools to sit for the California bar exam — or whether to impose additional regulations on those schools.
“We’re only at the very beginning of the examination of this issue,” Streeter said. “Since it came out that we are looking at this, my mail has been running 80 percent enthusiastically in favor of this idea, including from many academics.”
Karen Sloan can be contacted at firstname.lastname@example.org.