MacCrate, R --- "Yesterday, Today and Tomorrow: Building the Continuum of Legal Education and Professional Development" [2004] LegEdDig 25; (2004) 12(4) Legal Education Digest 12
Yesterday, Today and Tomorrow: Building the Continuum of Legal Education and Professional Development
[2004] LegEdDig 25; (2004) 12(4) Legal Education Digest 12
Clinical Research Institute, New York Law School, Research Paper Series No. 03/04-1, Sept 2003
(available at http://ssrn.com/abstract=444601)
Early in the last century Alfred North Whitehead pointed out that education in its essence is the acquisition of the art of utilising knowledge. During the first half of the 20th century, this course of putting knowledge to use was broadly pursued. By the early l960s, scholars were saying that the professions were triumphant. More and more students, with a variety of motivations, sought professional status in their chosen fields. The same scholars spoke of the dream of a professionally run society becoming a reality.
The traditional model of lawyer served to bolster the relationship of trust between client and attorney. It visualised the licensed practitioner, whose qualifications had been vouched for by his or her license and who was permitted to render services not permitted to the unlicensed, as being retained by the individual client to apply systematically formulated knowledge to the client’s problems. For the lawyer’s part, in this traditional model, professional responsibility was treated as an entirely personal duty owed individually by the lawyer to the client. At the same time, the lawyer held himself or herself out as available to provide such services to all who had need of them.
Underlying this traditional model was an assumed objectivity based on the lawyer’s personal detachment from the client and the client’s problems. The various standards of ethical conduct in this model were submitted to voluntarily by the lawyer as going beyond those required by law of an ordinary citizen. No profession was more attractive to would-be professionals than the law. Ever-larger numbers sought the status and rewards of membership in the legal profession.
The ABA Code of Professional Responsibility sought to raise professional awareness and to articulate what the profession perceived at that time to be its voluntarily assumed responsibilities. There have, however, continued to be varying perceptions as to just what professional responsibility is and can be. The Model Rules of Professional Conduct represented a conscientious effort on the part of the profession to articulate the responsibilities of the lawyer as he or she fulfills a variety of roles and is confronted by vastly changed social, economic and political circumstances.
The Task Force on Law Schools and the Profession: Narrowing the Gap sought to build on the vision articulated in the Model Rules by articulating the values at the core of each of the dimensions of the legal professional identified in the Preamble to the Model Rules.
Today the concept of a profession is being stretched and strained, possibly beyond its limits, by the pressures of numbers, complexity in the law, institutionalisation both of lawyers and of clients and the forces of the marketplace. Is there a place for a profession of law in what has been called the legal services industry?
At the core of the legal profession’s concepts of confidentiality, loyalty and avoidance of conflicts of interest lies a conception of legal practice as a two-party arrangement between the lawyer and the client. But institutional settings for the rendering of professional services have become the norm, both on the lawyer’s and the client’s sides.
Increasingly the lawyer claims a right to share in any economic rewards realised by a client and the ethic of the contingent fee is extended from tort litigation across all fields of business and commercial transactional law. The relationship of client and attorney becomes subordinate to the lawyer’s professional advancement or to the contract for the publishing rights to a client’s story. Arbitrary limits are sought to be placed on what a legal services attorney may do for his or her client.
In pursuing these fundamentally important objectives, the profession may regain the all-important sense of belonging to a larger calling. Law has been called the cement of society. If it is, then lawyers are the masons to work that cement.
The publication in July 1992 of the Task Force Report immediately touched off a spate of commentaries both supporting and questioning the changes in legal education and professional development advocated in the Report. Following upon the initiative of the Council on Legal Education for Professional Responsibility (CLEPR) in the 1970s and the accelerating development of clinical education during the 1980s with its focus upon preparing students for the responsible practice of law, the Task Force’s vision of the lawyering skills and professional values to be acquired by lawyers struck a responsive chord within the legal profession that stimulated a continuing dialogue throughout the 1990s and into the present century. In 1994, the ABA House of Delegates gave its support to continuum building by broadly endorsing the Task Force’s recommendations for specific action by law schools, by licensing authorities, and by state, territorial and local bar associations.
The law schools have an enormous stake in the profession. What the profession is and what it becomes have had and will continue to have a profound effect on legal education. The ongoing Best Practices project of the Clinical Legal Education Association (CLEA) epitomises the kind of careful attention and critical thinking about professional education that the Task Force had hoped to spark. The thesis of the Best Practices project is that law school programs of instruction should make it possible for law students to obtain the competencies they will need to carry out their professional responsibilities upon entering law practice and to develop the competencies required for their first professional jobs. Renewed attention and effort need to be devoted to improving law school instruction in the values that lend purpose to a law school education and the profession for which it prepares.
Viewing the professional development of lawyers along the continuum visualised by the Task Force, the ultimate evaluation by the licensing authority is commonly preceded by evaluation of the candidate through tests and examinations: for admission to college; for graduation from college; for admission to law school; and for graduation from law school.
The Task Force Report recognised the important role of bar licensing authorities in the creation and implementation of reforms of the educational continuum for new members of the profession. To implement its vision of the process by which new lawyers should prepare for the practice of law, the Task Force recommended that licensing authorities consider modifying bar examinations that do not give appropriate weight to applicants’ acquisition of lawyering skills and professional values that ensure readiness to assume the responsibilities of practice.
In recent years, legal educators and bar associations have increasingly expressed concerns about the bar examination and have called for reforms. For licensing authorities to give credit in the admissions process for a successfully completed clinical experience in an accredited law school under faculty supervision and duly certified by that faculty would be giving credit where credit is due. The question of the measurement of the credit and its integration into the bar examiners’ grading system will have to be determined. Just as the results of the multi-state performance test are factored into an applicant’s total score, credit should be given for successfully completed clinical experiences supervised and certified by the faculty of a duly accredited law school.
But however this issue is resolved ultimately, how can it be reasonable for the profession to forgo the opportunity to improve the bar testing process by drawing on readily available mechanisms like clinical courses and resources like clinical teachers?