An authorized and approximate translation into Spanish of Pandemic VI: Lawyer formation re-engineered, installment of the Pandemic series of Jordan furlong, published in Law 21 the 7 of April of 2020.
As I pointed out in my previous delivery, the pandemic is accelerating and accentuating all the trends that were already going to stop the existing legal training system. Less than eight months ago, I wrote in Law 21 about how the lawyer development system is falling apart and how we could replace it with something better.
At the time, I thought that the system would break down because law firms would hire fewer and fewer new lawyers and thus withdraw from their old de facto role as "on-the-job lawyer educators." This would have secondary effects on the new lawyer system.
Legal regulators, I wrote, need to unify the various branches and fragments of attorney training and assert control over the attorney development process in their jurisdiction. Education, training, licensing and continuous assessment of competence must be carried out under unified supervision and with a broad and authoritative vision to create competent and confident lawyers who serve their clients and society.
That, like I said, was then. A process that I thought would unfold over the years is now happening in weeks. So I would like to recommend that post for your review, and now use it as a starting point for the next proposal to reinvent lawyer training in the post-pandemic era, when it comes.
To make this change possible, we need to stop thinking of lawyer training in terms of the organizations that we have allowed to deal with the different segments of lawyer development: law schools, law admissions bodies, law firms. lawyers, and start thinking from the perspective of the lawyers we are helping to train. We have to find out what attorneys really need, in terms of structured instruction and supervised experience, in their first 10 years in the legal community, and only then direct our minds to what types of entities are best positioned to provide it.
Right now, there are many very smart people with extensive experience in legal education working on ways to rethink the training of lawyers. I do not belong to any of those categories; however, I would like to submit for your consideration this rough breakdown of the three elements that I believe lawyers should acquire during their formative years.
1. Education in basic legal principles. What are the foundations of law? Before a student learns the first thing about the rules of proof or the norms of contributory negligence or what makes a will valid, they need to know the essential elements of the law and the benefits it offers to society. These include:
- The underlying principles of law (equity, due process, precedents, the rule of law, etc.)
- Essential characteristics of the right (rights, obligations, resources, solutions remember the legal center of the consumer)
- Key manifestations of law in society (procedures, guarantees, titles, controversies and their resolution)
Law is not a trade, and law school is not a trade school. There is a genuine role for what we think of as "traditional legal education." But it does not involve textbooks, lectures and exams in "Contracts" or "Land Transactions" or "Taxes" or any other "practice area" course. It does involve "thinking like a lawyer," but more importantly, understanding why we have the law and why we have lawyers, the benefits that both provide in terms of safeguarding and promoting social stability, interpersonal reliability, individual dignity and collective responsibility.
Examples of the principles, characteristics and manifestations of the law would be drawn from all the usual "areas of practice", not to "teach" those areas of the law, but to illustrate points about precedents, obligations and guarantees, and so on. This segment of the process would best be managed in person, a group of novices learning together under the guidance of experienced educators, in order to help new attorneys socialize and network. By the time a student completes this segment (and demonstrates their mastery of it to their instructor's satisfaction), they will know the "why" and "how" of law; Only then will you dive deep into the specific 'what'.
2. Knowledge of legal matters. While this might look like all those substantive "practice area" courses from law school, there are a couple of key differences.
One difference is that these courses would be learned mostly online, through videotaped instruction and the completion of various "modules" that could consist of dozens or even hundreds of units, depending on the specialty the student would like to develop. The assessment of a student's learning would be carried out by expert professionals in each area authorized by the regulatory bodies to test students as soon as they wish to be certified as having completed part or all of the course. Completing and "passing" 20 modules, for example, would give you a basic knowledge base; 40 would make you moderately informed; 100 would make you an expert.
The second difference is that there would be no compulsory courses. I admit this is controversial, and you might point out that there are some things that "every lawyer should know." In terms of professional identity and responsibility, I agree, and these are covered in the third section below. I also agree that there should be "prerequisite" courses for some subjects, for example, you would not enroll in "Mergers and Acquisitions" until you have completed a minimum number of "Business Law" modules.
But as for requiring each student to master an (increasingly arbitrary) set of legal topics, I disagree. We need to stop forcing prospective attorneys to spend the precious first years of their law training learning about areas of the law that they will never use. A highly specialized legal market needs equally specialized attorneys who are continually and fluently learning throughout their careers.
Under this proposal, nothing would prevent a lawyer who has completed and is certified, for example, in employment law, from later changing their career plans and completing a course in patent law. The attorney's "classmates" at any given time would therefore encompass a wide range of beginning learners and experienced professionals, producing a much more diverse, dynamic and collaborative learning environment. The "law school" in this system is no longer a place where you spend the first three years of your degree and you never come back; it becomes a lifelong learning resource, which CLE (Continuing Legal Education) should have been, but never was.
We should no longer use the legal education system to satisfy an outdated vision of a profession filled with "thousand trades" and Atticus Finches; instead, we should empower law students to build the kinds of legal careers they want to lead and serve the parts of society they want to serve in a rapidly changing world.
3. Skills and standards of an attorney. This is the part of the attorney development process that many veterans refer to as "the real world." I do not make hierarchical distinctions as to whether these subjects are superior to others. But this is where you will find topics like:
- Professional identity
- Legal ethics
- Professional conduct
- Character and integrity
- Personal empathy
- Customer Service
- Business fundamentals
- Workflow management
- Financial education
- Technology training
- Project management, and
- Cultural competence.
Through a combination of classroom and online education, students would gain mastery of these topics and the practical realities of their application. But more importantly, they would be given the opportunity to put these skills and knowledge to the test, whether in three- or four-month internship opportunities in the private and public sector, or in virtual classrooms and mock law firms.
Does that last part sound too far-fetched? It's already happening right now. Take a look at the Canadian Center for Professional Legal Education's Practice Readiness Education Program, which is now replacing the bar exam process in Alberta, Saskatchewan, Manitoba, and Nova Scotia. And take a look at Ontario's already well-established Legal Practice Program.
I am confident that other Canadian regulators will soon convert their requirement to terminate the PREP, LPP, or similar programs. Other countries should study and adapt these innovative and timely methods of assessing the competence of new lawyers. The template for modern, practical and supervised lawyer training is available to you right now here in Canada.
A couple of final points in this third category.
a) This third category of learning can (and often should) take place at the same time as the second category. Our current system of training for lawyers teaches students the knowledge of a legal subject, and then years later, exposes them to the practical application of it. That's an unnecessary disconnect born of vendor fragmentation. Students should be encouraged to learn how to be a lawyer in practice at the same time that they learn how to be a lawyer in theory. (Integrated courses combining elements of the second and third categories could be considered).
b) This third category is not exclusive to the private exercise of the right. "An attorney" does not refer exclusively to individuals who serve several serial clients in the private sector. Corporate attorneys, public sector attorneys, and public interest attorneys are all attorneys. This third category should provide both instruction and experience in all these different dimensions of being a lawyer (and especially in ethics and professional responsibility, which is currently 95% taught from a private practice perspective). Among the many shortcomings of our current law development system is the fact that "private practice attorney" is the default setting. That has to change.
These are my suggestions to rethink, redesign, and reunify the attorney training process. Next in this series are my thoughts on what the pandemic is going to do to private law practices, and what a rescue mission and reengineering project might look like in this highly vulnerable sector of the legal economy.
*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.