The New York Times, February 17, 2013
THE American Bar Association, which sets the standards for accrediting law schools, met recently in Dallas at a time of existential crisis for legal education. The job market for law school graduates is collapsing; some schools have been misleading, or even fraudulent, in reporting admissions and employment data; tuition and student debt have reached record levels. Some question legal education itself: What is its mission? What value does it add?
Those are legitimate questions. But to answer them for legal education, we also need to ask them of the profession.
Consider this: Nearly half of those who graduated from law school in 2011 did not quickly find full-time, long-term work as lawyers. Yet the need for legal representation has never been greater. In New Jersey, where I teach law, 99 percent of the 172,000 defendants in landlord-tenant disputes last year lacked legal counsel.
Nationwide, judges decry not a surplus of lawyers, but a lack of competent representation for those who aren’t rich individuals and corporations.
Lawyers cost too much in part because of rates established during the economic bubbles of the past 15 years. No less than in the dot-com or real-estate or derivatives markets, the cost of legal services became unsustainable. The recession worsened, but did not cause, the predicament now: a mountain of student debt and dearth of legal jobs, even as there is a crying need for legal services.
Legal education has not so much failed the profession as mirrored it. Law schools have trained students for a profession that has left a huge part of the public unable to afford representation — especially the middle class — and at a cost that perpetuates the problem.
There is a way out. Law schools and the legal profession could restore a vibrant job market by making representation easier to obtain. In doing so, they would revive their historic commitment to the balance between acquiring wealth and promoting civic virtue.
The New York State courts took a step in that direction recently by requiring pro bono service as a condition for admission to the bar. That is laudable, but many law schools already encourage or require pro bono service. That proposal doesn’t address the deeper problem: the disconnect between cost and need.
That disconnect relates to how lawyers are hired. Big firms have been hiring a few graduates from a few select schools, and paying them exorbitantly. The result: These law-firm associates provide services, like document review or memo drafting, at rates that their competence and experience don’t merit. In a recession, clients resist paying the rates; now, firms resist hiring new lawyers.
Let’s scrap this system. We need, at its entry level, the equivalent of a medical residency. Law school graduates would practice for two years or so, under experienced supervision, at reduced hourly rates; repaying their debts could be suspended, as it is for medical residents.
Law firms would be able to hire more lawyers, at the lower rates, and give talented graduates of less prestigious institutions a chance to shine. The firms, at the end of the residencies, could then select whom to keep. Even for those who don’t make the cut, the residency will have provided valuable experience. The law firms should be required, under this proposal, to offer stipends to help those residents who don’t make the cut but have debt burdens.
In theory, there would be no restriction on the types of matters residents could undertake. At Rutgers, where I teach, students in clinics work on commercial transactions as well as criminal cases. Many states restrict the activities of law students; but residents, as new lawyers, would be able to litigate and give legal advice without restriction.
This scheme would reduce the cost of legal services; rates would vary according to the attorneys’ experience levels and the clients’ abilities to pay.
Every form of legal practice could benefit, not just pro bono work. The largest firms would use the legal residents on large institutional matters and use the savings to lower hourly rates for clients. Large and small firms could afford to serve people who can’t afford legal services but don’t qualify for pro bono aid: the middle class. (Many of the indigent already qualify for free representation.)
Schools are already experimenting: Mine is about to start a postgraduate, nonprofit law clinic/firm staffed by recent graduates, under supervision, to represent lower-middle-class clients.
The greatest benefit, however, would be the recovery of an ethic of legal practice that has been greatly diminished. At its best, law protects the vulnerable, safeguards liberty and serves the public. By embracing a residency model, the profession can rebalance the tension between profit and service.
John J. Farmer Jr., a former attorney general of New Jersey and senior counsel to the 9/11 Commission, is the dean of Rutgers School of Law in Newark.