Texas lawyers will soon be confronted with legal issues which did not exist five years ago, and whose full impact will develop over the next decade. Our law schools will be challenged to prepare new attorneys to address these looming changes.
Some of those issues will undoubtedly involve the dramatic changes to the institution of marriage. Thirteen states and the District of Columbia now recognize the creation of same-sex marriage. Texas does not, and likely will not, allow the creation of such marriages at any time in the foreseeable future. However, as a result of the recent decision by the Supreme Court of the United States in striking down the federal Defense of Marriage Act (U.S. v Windsor), same-sex couples who marry, then move to Texas will bring with them new federal law issues, including social security matters, military law concerns, federal tax and estate planning challenges, and immigration questions, to name just a few. Some of these couples will undoubtedly decide to end their marriages, which will bring into play all of the property, custody, support, and related matters involved in the breakup of traditional marriages. Texas courts currently do not have jurisdiction to entertain same-sex divorces, per the 2010 decision by the Dallas Court of Appeals in the case of In Re J.B and H.B. Determining how to resolve these conflicts, which will spill over into many areas of practice in addition to family law, will pose real challenges to Texas attorneys.
New issues will also arise in the context of the changes resulting from the Affordable Health Care Act. Implementation will challenge individuals and businesses trying to comply with an incredibly complex and continually evolving set of mandates and regulations.
If Congress addresses Immigration Law reform, up to eleven million people nationwide will emerge from the shadows. Many of them will then seek access to a legal system from which they have hidden, to seek resolution of the same types of conflict facing all other people. Millions (although nobody is sure of the exact number) reside in Texas.
The challenges are not limited to the implementation of federal law. Texas will be required to update the methods by which we provide criminal defense, given the reality that close to 70 percent of those charged with crimes are indigent, and given the hodge-podge of systems in place in this state to deal with that challenge. (See: Bill Piatt, Reinventing the Wheel: Constructing Ethical Approaches to State Indigent Legal Defense Systems, 2 St. Mary’s L. J. Legal Mal. & Ethics 372 (2012)).
Technology continues to evolve. New concerns regarding client confidentiality will need to be addressed in an environment where the privacy of all communications is now at issue.
The list could go on and on. Many of these questions cannot now be tested on a bar exam, given the evolving nature of the problems. It is clear that law schools cannot punt the obligation to prepare future attorneys to assist clients in these areas, to the Board of Law Examiners. How then could law schools prepare the next generation to deal with these pending issues?
A partnership between the law schools and the Bar could result in the creation of a statewide panel of attorneys, judges and professors. The panel would track and explain current developments and predict and suggest how these matters might be resolved. Law schools could require attendance by their students and faculty members in an online seminar or series of seminars conducted by this panel. The Bar could offer CLE credit for these presentations. The panel would issue periodic alerts to students, practitioners, and professors, as critical issues affecting the legal profession in Texas develop.
Implementing this approach would require an explicit and renewed recognition by all involved that the ultimate purpose of our profession, and thus our system of legal education, is to serve the interests of our clients and the administration of justice. Requiring students to recognize how they must prepare to adapt to the coming changes, communicates this message to them at the very beginning of their legal careers.
In the next article we will consider the impact on legal education of the increasing costs of that education, given the new realities of the job market. We will conclude this series with an examination of how the growing external challenges to our profession will affect legal education in Texas.