Sunday, January 10, 2016
Professionalism - First, Last, Always
So now that we have talked somewhat about the current state of legal education, how to begin to fix it? I would suggest that we should ground our law school (soon we’ll change the name to law center, but more on that later) of the 21st century in what makes law school different from other graduate programs - professional identity. Let me discuss briefly why professionalism is important before I explain how we should set about teaching it.
The need for professional identity is a sine quo non for lawyers. We use professional identity to ensure a certain level of professionalism, civility, and more importantly, proper delivery of legal services. We also have a vested self interest as lawyers in the concept of self regulation of the profession, because otherwise we will concede control of the law to outside regulators.
Now normally that would not be a big deal, particularly given the businessification of the practice of law, (a reality, regardless of any personal feelings you may have on the subject), but for the unique role lawyers play in a democratic society. We speak truth to power, and the law not only allows it, but requires it. Self regulation by the profession, the formation of professional identity, and the internalization of what it means to be a lawyer are the means by which we guarantee the continued rule of law. Our profession’s ability to stand apart from the machinery of government is what gives us the ability to stand up and say no, when everyone arounds us wants a yes - and are not really willing to hear another’s truth. It is the most important thing law schools teach, and the one done most inefficiently and ineffectively.
The ABA standards require that students are taught the model rules of professional responsibility in a minimum 2 credit hour format. Now that two credits is part of the 88-90 credits normally required for graduation. Think about it for a minute, the ABA only requires that roughly 2 percent of a law student’s education address professional responsibility - yet we all know lawyers deal with issues of ethics and professionalism every day. There are a lot of reasons, most of them historical for this approach - but it is not enough, not even close. We have taught professional responsibility as though it were a Sunday School class, and our students have responded to that approach as one might expect - they get the message that this stuff can get you in trouble, but it doesn’t “really” matter, not like the substantive law. That is the wrong approach to developing a professional identity, but it is endemic.
Law Schools can maximize the formation of a positive professional identity by structurally modifying the way in which professional responsibility, as well as professionalism, is taught. This change should have multiple components, to include:
1. Substantive law classes
2. Modeling appropriate behavior
3. Immersive professionalism discussions across the curriculum
1. Substantive Law Classes - Make it 4 credits
This is actually the easiest one to fix. Most law schools currently require a 3 credit course, usually taught in a modified socratic method by one professor in a traditional classroom environment. In our new school we will keep this course (to allow for diversity in delivery), but also offer an opportunity for the doctrinal class to instead be tethered with skills courses where professional responsibility issues often arise - client counseling, negotiations, and mediation. These skills course would revolve around the professional responsibility course, with the various skills problems confronted by the students designed to reflect the doctrinal rules as they are taught in the professional responsibility course. This creates a synergy that is otherwise absent. It would be a good beginning, but not enough.
Most legal writing and substantive law courses in the first year of the curriculum, in fact most required courses, are 4 credits. Professional responsibility should be as well. I would take that one additional credit and make a separate course, one that allowed for the modeling of appropriate behavior, we could call it “Developing Your Professional Identity.” I would require it to be taught by senior members of the law faculty, preferably those in leadership positions, such as the dean of the law school. If not the dean, then a senior respected member who is known for having a developed a professional identity that has withstood the test of time. At my law school I could easily see several of our senior faculty teaching this course, and the students would be immeasurably better from spending quality time learning why and how their decisions about the lawyer they will be matter so much. This would allow students to experience mentoring at its best, and bring our most trusted and beloved professors forward into the light, where they belong. I must confess that is how I learned it at Notre Dame and though is has been over two decades those lessons are still fresh in my mind.
2. Modeling Appropriate Behavior
As mentioned above modeling would work as the basis for the 1 credit class added to the curriculum, but our school will go beyond this, making professionalism a core component of our orientation process, extracurricular activities, and on campus presentations. This would flow over into the school’s pro bono program, and eventually make its way into the very fabric of the institution, its alumni, and student body. Clients and the profession would both benefit in an astounding way. It would also mirror the actual way it works in the real world - we mentor, we model, we walk the walk, which allows us to talk the talk. This would serve the added benefit of exposing our students, in a controlled environment, to what they should expect in their internships, clinics, summer placements, and eventual first job - while also helping them to develop the skills necessary to maximize their success in these endeavors. When an institution loses sight of the core need to do the right thing when no one is looking it is in distress, internalizing these values would protect higher education in the legal arena while also growing good lawyers - a win win.
3. Immersive Professionalism Discussions Across the Curriculum
The substantive curriculum in our new law school will be arranged quite differently (more about that in a subsequent post), but regardless of the structure of our curriculum in the future, learning outcomes and competencies concerning professionalism must be built into every course. We all know that each component of the law has an ethical issue attached to it. Each of us have experienced ethical questions as part of a substantive law course - they should not only be answered, but prepositioned as additional components of the course of instruction. If we break down the silos of traditional legal education this will be easier to accomplish, but we can even do it now using our current structure. The ABAs recent focus on learning outcomes will assist us in convincing less forward leaning faculty on the efficacy of this approach as well. It does not require a lot of time, but the benefit is immense.
If we truly want the profession of law to remain a profession we must substantively alter the way in which we teach it, support it, and live it. The richness of the conversations that would ensue, with the fabric of the law behind it all, would be tremendous boon for our students. Professional identify could then become one of the fundamental colors woven through the tapestry of the student’s law school experience, instead of a lovely, but nearly unnecessary fringe. Next time we’ll talk about how to arrange an appropriate curriculum for this new type of law school, and how changing it will transform the position of law schools within the legal community.
All the best,
Posted by Charlie Rose at 10:18 PM