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Legal Education and

Professional Development

-An Educational

Continuum

Report of

The Task Force on Law Schools

and the Profession: Narrowing the Gap

American Bar Association

Section of Legal Education and Admissions

to the Bar

JULY 1992

r

Opinions expressed in this Report are not

to be deemed to represent the views of the Association or the Section unless and until adopted pursuant to their Bylaws.

©1992 American Bar Association. All

rights reserved. American Bar

Association, 750 North Lake Shore Drive,

Chicago, Illinois

60611, (312) 988-5000.

ISBN: 0-89707-77 4-1

Dedication

To our departed colleagues,

Dean Robert

B. McKay,

Honorable Alvin

B. Rubin, and

Dean Albert M. Sacks,

in appreciation of their lasting contributions to legal education and the professional development of lawyers.

AMERICAN BAR ASSOCIATION

SECTION OF LEGAL EDUCATION AND

ADMISSIONS TO THE BAR

Task Force on Law Schools and

the Profession: Narrowing the Gap

Robert Macerate, Esq., Chairperson

Professor Peter W. Martin, Vice Chairperson

Associate Dean Peter A. Winograd, Vice Chairperson

Professor J. Michael Norwood, Reporter

Members

Cory M. Amron, Esq.

Professor Anthony G. Amsterdam

Honorable Dennis W. Archer (to December 1990)

Professor Curtis J. Berger (to December 1991;

thereafter AALS Liaison)

Talbot D'Alemberte, Esq.

(to December 1990)

Dean Joseph D. Harbaugh

Professor Richard G. Huber

Dean Maximilian

W. Kempner

Dean

John R. Kramer

Dean Robert B. McKay (deceased, 1990)

Honorable Robert R. Merhige, Jr.

John 0. Mudd, Esq.

Dean

Susan Wester berg Prager

Norman Redlich, Esq.

Harold

L. Rock, Esq.

Honorable

Alvin

B. Rubin (deceased, 1991)

Dean

Albert M. Sacks (deceased, 1991)

Professor Roy T. Stuckey

Michael Traynor, Esq.

Honorable

Sol Wachtler

Honorable Rosalie E. Wahl

Dean Marilyn Yarbrough

Association of American Law Schools Liaisons

Dean Betsy Levin

Professor Thomas D. Morgan

American Bar Foundation Liaisons

Bryant G. Garth, Esq.

Joanne Martin, Esq.

v vi The Task Force

Task Force Consultants

Professor Bruce A. Green

Professor Randy Hertz

Richard Diebold Lee, Esq.

Professor Marjorie A. McDiarmid

Special Consultants

Dean James P. White

Kathleen

S. Grove, Esq.

Staff Directors

Frederick R. Franklin, Esq. (to December 1991)

Rachel

Patrick, Esq. (as of January 1992)

Contents

Process and Procedures of the Task Force . . . . . . . . . . . . . . . . . . . . . xi

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part I. THE PROFESSION FOR WHICH LAWYERS MUST

PREPARE..................................................... 9

Chapter 1

Chapter 2

Chapter 3 An Overview

of the Profession. . . . . . . . . . . . . . . . . . . 11

Lawyers and Legal Services: Growth, Change

and Multicultural Diversity....................... 13

A. Explosion in Numbers and Use of Legal

Services.......................................... 13

B. The Change in Gender Make-up.............. 18

C. The Belated Opening to Minorities and

Diversity......................................... 23

The Diverse Practice

Settings.................... 29

A. Sole Practitioners and Small Firms . . . . . . . . . . 35 B. New Providers of Legal Services............. 47 C. Large and Middle-Sized Firms . . . . . . . . . . . . . . . . 73 D. In-House Counsel............................... 88 E. Lawyers for Government...................... 95

Organization

and Regulation of the Profession 103 A. The Beginnings of the Profession. . . . . . . . . . . . 103

B. The Bar's Identity in Learning, Skills and

Professional Values............................ 105

C. Law School: The Unifying Experience...... 111

D. The Judiciary: The Profession's

Gatekeeper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
E. The Survival of a Single Public Profession. 119 Part II. A VISION OF THE SKILLS AND VALUES NEW LAWYERS SHOULD SEEK TO ACQUIRE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Chapter 4 Formulating a Statement of Skills and Values 123 A. Reasons for a Statement .. .. . .. . .. .. .. .. .. .. .. 123 B. Focus of the Statement .. .. .. .. .. .. .. .. .. . .. . .. 124 C. Formulation of the Statement . . . . . . . . . . . . . . . . 125 D. Uses of the Statement......................... 127

E. Abuses of the Statement to Be Avoided..... 131

vii r viii Contents

Chapter 5 The Statement of Fundamental Lawyering

Skills and Professional Values . . . . . . . . . . . . . . . . . . . 135 A. Organization of the Statement . . . . . . . . . . . . . . . 135

B. Overview of the Skills and Values

Analyzed......................................... 138 C. The Analysis of Skills and Values . . . . . . . . . . . 141

Part III. THE EDUCATIONAL CONTINUUM THROUGH WHICH

LAWYERS ACQUIRE THEIR SKILLS AND VALUES........ 223

Chapter 6

Chapter 7

Chapter 8

Chapter 9

The Process Prior to Law School................. 225

A. Self-Assessment and Commitment to Self

Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 B. The Need for Informed Choice . . . . . . . . . . . . . . . 227

Professional Development During Law School 233

A. The Law Schools' Role in Professional

Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

B. Assessing Current Instruction in Skills and

Values............................................ 236

C. The Accreditation Process and Instruction

in Skills and Values............................ 260

D. Employment Experience as a Complement

to Law School..... .. .. .. .. . .. . .. . .. . .. . . .. .. .. .. 268

The Transition from Law Student to

Practitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 A. The Licensing Process .. .. . .. .. .. . .. . .. .. .. .. .. 273

B. Curricular Requirements for Bar

Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4 C. The Bar Examination .. .. .. .. .. .. .. .. .. .. .. .. .. 277 D. Building the Continuum.................... .. . 284

E. Transition Education for Bar Applicants

and New Lawyers.............................. 285

Professional Development

After Law School... 305

A. The Development of Continuing Legal

Education . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . .. 305 B. The Growth in Mandatory CLE . . . . . . . . . . . . . . 309

C. The Extent and Diversity of Current CLE

Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 D. On-the-Job and In-House Training........... 314 E. The Continuing Quest for Excellence........ 316

Contents ix

Chapter 10 The Need for a National Institute to Enhance the Process of Professional Development....... 319 Part IV. RECOMMENDATIONS OF THE TASK FORCE.............. 325

A. Disseminating and Discussing the

Statement of Skills and Values ............... 327

B. Choosing a Career in the Law and a Law

School

............................................ 328 c. Enhancing Professional Development

During

the Law School Years ................. 330

D. Placing the Transition and Licensing

Process

in the Educational Continuum ...... 334

E. Striving for Professional Excellence After

Law School ...................................... 336 F.

Establishing an American Institute for the

Practice of Law ................................. 337

APPENDICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

Appendix A Bibliography....................... 341

Appendix B The American Bar Foundation's

Study-Learning Lawyering:

Where

Do Lawyers Acquire

Practice Skills?. . . . . . . . . . . . . . . . . . . . . 379

Appendix C Report on the Task Force's

Hearings

and Conferences........ 385

Appendix D Questionnaire Used in the Task

Force's Survey of Law Schools'

Skills

and Values Instruction . . . . 397

Appendix E Practical Skills Training in

Commonwealth Jurisdictions.... 405

Appendix F A Mission Statement for an

American Institute for the

Practice of Law.................... 413

PROCESS AND PROCEDURES OF

THE TASK FORCE

The Council of the Section of Legal Education and Admissions to the Bar established the Task Force at the beginning of 1989. Justice Rosalie Wahl, chairperson of the Section, appointed the initial mem bers. Over the ensuing three years the Council of the Section has lent strong support to the Task Force and the successive chairpersons of the Section (Philip S. Anderson, Esq., Dean Norman Redlich, Jose Garda-Pedrosa, Esq. and Dean Henry Ramsey) have worked closely with it. Justice Wahl and Dean Redlich were appointed members of the Task Force following their terms as chairperson of the Section. From the outset the Office of the ABA Consultant on Legal Education has been an indispensable resource for the Task Force both in collecting the data from the Task Force's survey and by providing information from its unique store of historical materials relating to legal education. Both Dean James White and Assistant Consultant Kathleen Grove have been active participants in the work of the Task Force. The Task Force met for the first time on May 19, 1989 in Wash ington, D.C., surveyed earlier studies, identified sources of data and information potentially useful in its work and began assembling a comprehensive bibliography (Appendix A to the Report is the bibli ography of material utilized by the Task Force). As part of its effort to describe the breadth and complexities of the legal profession (see Part I of this Report), the Task Force decided, at its initial meeting, that it would be useful to update the empirical data about the profession contained in earlier studies such as that of Zemans and Rosenblum, The Making of a Public Profession. To that end, the Task Force enlisted the assistance of the American Bar Foundation, which conducted a study of recent law school graduates and their employers that has informed the deliberations of the Task Force. This project was supported by a generous grant from the Charles E. Culpepper Foundation. The findings of the Foundation study "Learning Lawyering: Where Do Lawyers Acquire Practice Skills?" are summarized in Appendix B to the Report. B.G. Garth, Director, and Joanne Martin, Assistant Director, have acted as liai sons to the Task Force and greatly assisted in the development of this Report. As described in Part II of the Report, the Task Force conducted an in-depth study of the full range of skills and values necessary for a lawyer to assume professional responsibility for handling a legal matter. A subcommittee of the Task Force enlisted Professor Randy xi xii Process and Procedures Hertz of the New York University Law School as a volunteer Consultant to conduct the study and to assist in the development of the Statement of Skills and Values. A tentative draft of the State ment was completed in June 1991 and widely circulated for comment on its content and the uses to which it might be put. This circulation was generously undertaken by West Publishing Company and by ALI ABA through its CLE Journal and Register. The Statement of Funda mental Lawyering Skills and Professional Values in Part II of the Report is the product. It will also be published in a free standing edition available to all who wish to make use of it. To broaden the perspective on the issue of the preparation of lawyers for practice, a subcommittee of the Task Force conducted four public hearings between February 1990 and June 1991. Partic ipants in the hearings were asked their opinion: on whether newly admitted lawyers were prepared to practice law without supervi sion; as to what should be taught to improve graduates for practice; on how any additional training, if desirable, should be accom plished; and whether they favored a skills training requirement and/ or performance testing for bar admissions. The subcommittee responsible for the conduct of the hearings prepared a report which is appended as Appendix C. The information obtained through the hearings was extensively supplemented by informal submissions made to the Task Force over the entire period of its deliberations.

Impressed

by the lack of any authoritative appraisal of the state of skills and values instruction in the law schools, the Task Force in

1990 undertook a comprehensive survey of ABA-approved law

schools regarding the extent of curriculum development in the skills training area and the availability of such programs to students. The questionnaire sent to the law schools is Appendix D to the Report. The data gathered through this survey, together with that from other surveys to which the Task Force was given access, are the principal bases for the assessment in Chapter 7 .B. of the Report "Current Instruction in Lawyering Skills and Professional Values." The University of New Mexico donated substantial computer support to this project. Professor Marjorie A. McDiarmid of the West Virginia University College of Law was initially enlisted in 1990 as a volun teer Consultant to help design the computer program for the storage of the collected data. In 1992 she returned to the project generously giving of her time and experience to provide special support for bringing other survey materials together with that gathered by the

Task Force.

To develop a

comprehensive picture of post-admission legal education the Task Force was fortunate to enlist as a volunteer

Process and Procedures xiii

Consultant, Richard Diebold Lee, Esq.

of the California bar, a former law professor at Temple University, director of in-house training for the law firm of Morrison & Foerster and chair of the California State Bar's Committee on MCLE. He made a principal contribution to Chapters 8, 9 and 10 of the Report regarding the role of continuing legal education in professional development after law school and the need for a national institute to enhance the continuum of profes sional development.

Professor Bruce Green

of the faculty of the Fordham University School of Law joined the Task Force as a further volunteer Consult ant and gathered the material for the portions of Chapter 8 of the Report that relate to the licensing process and programs for bar applicants and new lawyers, including the material in Appendix E on practical skills training programs in Commonwealth countries.

In developing

the material with respect to the proposed national institute for the practice of law, the Task Force had the benefit of consultations with Paul Wolkin, the Director of ALI-ABA; Richard

Carter,

the Director of the ABA Division for Professional Education; and Victor Rubino, the Executive Director of the Practising Law

Institute.

The Task Force functioned during its early stages through seven active subcommittees responsible for developing separate phases of the project. In the final stages of the project consecutive drafts of segments of this Report were circulated among Task Force members. It is conservatively estimated that in excess of 12,000 hours of volunteer time and substantial supporting services provided with out charge were given directly to the project over its three year span.

The ABA Business Law Section

made grants to support the work of the Task Force during 1991 and 1992 and the Sections of Legal

Education

and Admissions to the Bar and of Tort and Insurance Practice are helping to defray the Task Force's costs of publication. The

Task Force held seven plenary meetings:

May 19, 1989 Washington,

D.C.

December 4, 1989 New York City

April 22,

1990 New York City

November 2-3,

1990 St. Louis, Missouri

April 26-27, 1991 New York City

November 22-23, 1991 New York City

March 27-28, 1992 New York City

The St. Louis meeting in November 1990 was held in conjunction with a conference conducted by the ABA Standing Committee on Lawyer Competence. The five plenary sessions of the Task Force in xi v Process and Procedures New York City were hosted by the law firm of Sullivan & Cromwell which over the more than three years of the project provided exten sive logistical and staff support without charge. Over the life of the project the Task Force has greatly benefited from its liaison with the Association of American Law Schools provided by Dean Betsy Levin, Executive Director of AALS, Profes sor Thomas Morgan, the President of AALS in 1990, and, during 1992, Professor Curtis Berger, who became President-elect of AALS while serving as an appointed member of the Task Force.

Introduction

to the Report

Introduction

The Common Enterprise

The Gap Between Expectation and Reality

Development

of the Skills Training Curriculum

For What Must Lawyers Prepare?

The Skills and Values to Be Acquired

The Continuing Process

of Professional Development

The Common Enterprise

At its birth this Task Force acquired a name that projects a distorted image of a legal education community separated from the "profession" by a "gap" that requires narrowing. As the Task Force proceeded to fulfill the mission suggested by its name and to narrow the "gap," it recognized that the image was false. Thus, the title of this Report attempts to correct the distortion, and suggests a differ ent and more accurate vision of the relationship between legal education and the practicing bar. Both communities are part of one profession. The skills and values of the competent lawyer are devel oped along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experi ence, and continues throughout a lawyer's professional career. Legal educators and practicing lawyers should stop viewing themselves as separated by a "gap" and recognize that they are engaged in a common enterprise-the education and professional development of the members of a great profession.

Law schools

and the practicing bar have different missions to perform, and they function in different experiential worlds with different cultures. These differences are pronounced and result from a system of legal education that relies on university-based profes sional schools for the formal education of the country's lawyers. 1 The transition during this century from a clerkship/mentoring system of educating lawyers to reliance on professional schools in a university setting has been traced by many observers to the accep tance of the Langdellian appellate case-method, which views the study of law as an academic science. Other observers have pointed to the dissatisfaction of the profession with the exploitative aspects of law-office training and the poor quality of the product. Other,quotesdbs_dbs33.pdfusesText_39

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