If you've spent the past few weeks focused on what's happening in law schools, you may think that the pandemic has triggered a crisis in legal education. But if, on the contrary, you have focused on the degree exams or that of the bar association and professional training, you may think that in reality the crisis is occurring in the qualification exams, in the admission to the bar association and in the certification of lawyers. And if you've focused on hiring decisions at law firms, you might think we're entering a lawyer hiring and employment crisis.
In fact, all this shows that the crisis has a whole system - in terms of the training of lawyers - that manifests itself in different places. The sooner we accept this fact, the more quickly and efficiently we can begin the process of organizing the selection of courses that will allow us to overcome the difficulties that in the short term assail us and develop study plans to unify the divided fragments of the training of lawyers and create an effective and legitimate system to train the new attorneys we need.
Here, a brief summary of the different situations that occur in this panorama.
- All North American law schools have had to close their physical doors due to the consequences of the physical distancing mandate. As in the courts, legal education revolves around the school building that everyone has to go to, the teacher in whose presence they must meet, and the legacy-based knowledge center on paper that serves as the anchor. to the entire institution. And like in court, the transition from the real world to the virtual world has been chaotic and jarring.
- As with judges, many law professors have to learn video conferencing as they go, in order to convert their lectures to an online format. Most are doing the best they can, but the effect is still something like televising a radio play. Teaching an “originally digital” class, which was designed from the ground up to be online, is something completely like moving a face-to-face class onto a camera and dispersing participants to the four winds.
- US law schools, after an initial period of struggle and a series of debates in the schools, are also coming (for the most part) to accept that their rating systems will have to change to "Pass or Fail" during this crisis. (Here you can find the breakdown of these US schools) For the most part, Canadian law schools are doing the same.
- In the United States, some jurisdictions have postponed their bar exams, while others are unsure or have not done so yet. Since new graduates who cannot take the bar exam cannot be admitted to practice, the focus has been on awarding an emergency diploma for 2020 graduates, or skipping the bar exam this year. In Canada, Ontario became the first province to cancel its attorney license exams.
- Speaking of my home, a Canadian jurisdiction has already decided to shorten the internship period from 12 to 8 months to allow internship students to be admitted to practice. The Saskatchewan (province in Canada) decision will almost certainly be replicated in other parts of the country, which should help ease concerns about law firms simply firing their students before their term ends.
- Law firms, which are predictably in the midst of a global recession, have already begun to lay off their associates and staff. Surely many more will follow, as I doubt that any of the stronger brand firms can avoid the same fate. Therefore, summer law programs will almost certainly be closed, and the on-campus interview process will move into the next winter, if not later.
- And, oh yes - law schools also have to worry about the postponement of the LSAT and the consequent delays in admitting future groups of students. Both the exit mechanisms and the entry mechanisms of the system are struggling and with it, legal education has a totally new problem.
This is an astonishing collection of disruptions and challenges, none of which the attorney training system was prepared to handle, all in less than a month. (Credit where it belongs: Despite all the chaos and hassle, law schools and their students have managed to switch almost all of their operations and formats from face-to-face to online in the space of a few weeks. Everything perfect? Barely. But schools and students have succeeded so far where many law firms and courts failed.)
But here's the catch: it's nearly impossible to address any of these issues without having significant repercussions on the others.
When law schools change their grades to pass or fail, law firm recruiters have to change their systems for evaluating students. When the new law licensing process stalls, companies cannot employ these new graduates as lawyers. When law firms downsize or postpone hiring new graduates, unemployment for new attorneys rises and fewer people show up to law school. And so on.
The most problematic thing is that all the relevant actors in this crazy struggle are independent of each other, with the mandate to pursue their own goals and their own survival, regardless of whether that search harms the other stakeholders. No one has either the general interest or the authority to coordinate a unified response. Licensing bodies can't tell law schools what to do, law firms can't tell licensing bodies what to do, and law students can't tell anyone what they have to do because they have no power and no one to defend them.
We have to appreciate what is really going on here. There are endless individual problems and complications in various areas related to the education and training of lawyers and licensing and recruitment. This is a big problem.
The lawyer training process is breaking down in front of us. It is breaking down because it is a disjointed, cobbled collection of self-serving fiefdoms that have been allowed to make their own decisions and pursue their own goals for decades.
Just as the judicial system is failing because it is about what judges and lawyers want rather than what clients and the public need, so the training of lawyers is failing because it is about what law schools want and what regulators want and what law firms want. Lawyer training is not about the lawyer being trained.
If the attorney training process was truly about the attorney, it would be holistic and unified, centered on the student striving to become a legal professional. Instead, look at how we've separated the early years of an attorney's career into three disjointed periods, managed by three different entities:
- Law schools "teach the law" - although the bulk of what they teach and how they teach it has not changed in more than 60 years. That outrageous fact alone could legitimately disqualify schools from playing a bigger role in these conversations.
- Courts and regulatory bodies "empower the lawyer," although the bulk of this process involves reteaching and testing students what (we believe) law schools did not teach effectively in the beginning.
- Law firms - let's be honest, real clients - "train the lawyer," paying the new professional or their employer to find out, in the course of their work, how they are supposed to meet real legal needs. Clients pay for attorneys to be competent. Which is a shame.
We have separated the education of lawyers from the training of lawyers, and we have separated them from the license to practice law, as well as entry into the profession. We have allowed this ridiculous process to continue year after year, despite knowing all its weaknesses and flaws, and now we are going to pay the price for that oversight in one lump sum.
The pandemic is, of course, the proximate cause of all this. The physical distancing forced law schools to change their teaching and classification systems and forced regulators to rethink their licensing system. The global recession - and maybe that's not a strong enough word - that is about to hit us like an on-going avalanche, is forcing law firms to massively recalibrate their hiring and firing decisions.
But someday, probably a few years from now, the pandemic will end and the economy will recover. Will all these aspects of the training of lawyers "return to normal" then? I highly doubt they will, for two reasons.
One is that this ordeal is going to last so long - and it will feel even longer - that it will be surprisingly difficult for us to remember how "normal" used to be. Humans have a remarkable ability to get used to new conditions - if you're not sure about that, look outside a month from now and see how many people are not wearing masks.
But the other, more important reason why we won't go back to the old ways of doing things is that those ways have been permanently discredited. Those of us who have spent years advocating for change in the attorney training process have always been greeted with, "You don't need to do it" and "No one would allow it" and "That would never work.
Well, guess what? We did it anyway, because we had to, and it worked. And now we have to ask:
- If Pass / Fail is an acceptable rating system during an emergency, why is it not acceptable all the time? Having taught a couple of law courses myself, and having experienced as an instructor how letter grades are arbitrary and indefensible, I think Honors / Pass / Fail is the ideal assessment system - it tells both the student and their Potential future employers all they need to know about course performance. And I'm not the only one who thinks that.
- If we are willing to award emergency diplomas to law graduates who have not passed a Bar Exam, why is it that forcing future generations of lawyers to pass an exam that we have actually admitted is merely optional in the award process? of licenses? Why wouldn't we go a step further and officially eliminate the bar exam and seek admission to the bar through alternative models?
- In Canada, we are willing to say that eight months of professional practice is as good as twelve. And what about six? What about four? When the practice of submission is already under heavy attack, when it has been shown to be an abusive and discriminatory experience for many students, when we are already having serious discussions about whether the practice should be interrupted, why should we continue one more day with this system, especially in a pandemic?
- Worst of all: If law firms are laying off experienced associates now, what are the chances that they will hire new associates three, six, or nine months from now? What will happen when the Class of 2020 (and maybe 2021) finds almost no job opportunities upon graduation or licensure? If the outsourcing of new lawyer training to law firms (on which the entire lawyer development system depends) stops and companies survive without it, why would companies take this role again?
Our 'person-to-person delivery chain' approach to lawyer development, where each participant takes the lawyer-in-training from one stage to the next, has been exposed (like all supply chains in the world) and it is strongly vulnerable to disruption. Out of this crisis will emerge a compelling need to re-unify the lawyer development and training system, to really rethink what we are trying to achieve: to develop competent and confident lawyers to serve clients and society. To achieve that goal, we need:
- Reconfigure and unify all legal training systems and processes;
- Centralize and empower a single authority to be in charge of training lawyers; Y
- Most importantly, refocus the lawyer training system on the lawyer being trained.
This is how I view the impact of the pandemic on legal education, law licensing, and legal professional development. For my thoughts on the practical steps we can take to achieve these goals, both in the short, medium and long term, please see the next two posts in this series.
*The opinions expressed in this article are those of the author and do not necessarily reflect the views of the administrators of The Crypto Legal blog or the Lawgic Tec association.