Washington Lawyer

The Transformation of Legal Education

From Washington Lawyer, May 2011

By Sarah Kellogg

broderickForces at work in the world are fundamentally transforming the legal profession. A riptide of 21st–century social and economic trends—the ascendancy of information technology, the globalization of economic activity, the blurring of differences between professions and sectors, and the increasing integration of knowledge—has driven the transformation. More systemic than cyclical, these changes have only been intensified by the 2008 economic crash.

Law schools have been somewhat reluctant partners in this drama. Many schools have made nuanced modifications in their programs, while others have retrofitted much of their curricula, adding new programs on professionalism and ethics, focusing on building practice–based skills, and expanding their international outreach.

“This is a time of change for the legal practice. The change in the economy precipitated changes that would have come inevitably,” says William M. Treanor, executive vice president and dean of the Georgetown University Law Center.

“It does cause us to rethink how we prepare lawyers. Again, it’s accelerating a process that had already begun. Classically, law schools taught people to think like a lawyer. That was what the Socratic Method was about. It trained people very well, but for one part of what lawyers do. It didn’t train them to write, problem solve, and exercise judgment. We’re looking more broadly to train people for every facet of the law,” Treanor adds.

The first official warning shot for law schools came in 2007 with the release of Educating Lawyers: Preparation for the Profession of Law by the Carnegie Foundation for the Advancement of Teaching. The report urged law schools to revamp their curriculum to reflect the real-world needs of the legal community, including emphasizing practice-based skills such as writing briefs, interviewing clients, and understanding legal ethics.

Since then, rethinking the preparation of young lawyers has become a cottage industry. Law school calendars have been littered with forums, seminars, and panel discussions about the future. The most prominent among them has been the “contest of ideas” effort known as Future Ed between New York Law School and Harvard Law School. Paradoxically, it seems that the 200 U.S. law schools accredited by the American Bar Association (ABA) have taken 200 different routes to address the turmoil.

Yet there is a feeling among some that law schools have spent more time discussing the future than moving in a straight line toward it. “A lot of law schools are talking a good change game,” says Larry E. Ribstein, the Mildred Van Voorhis Jones Chair in Law and associate dean for research at the University of Illinois College of Law, who has written regularly on the future of legal education. “At least it shows the recognition of the need to make change, but they’re not actually doing it. But then, it’s justifiable to not try to turn on a dime without knowing what the legal market is going to look like in five years. And nobody is quite sure of that.”

Still, law schools are on a trajectory toward the future, whether they like it or not, pulled along by the restless and worried students they serve and the law firms they feed. Those schools that fail to keep pace with the profound changes upending the legal profession will find themselves out of sync with the new demands on lawyers and law firms.

While it is hard to know for sure, many believe the future of the legal profession won’t be some fanciful Star Trek–type utopia, but rather a pragmatic, considered, and evolved state, where law schools will be called on to reflect the changes in society and the profession, serving both as leaders and followers.

Ultimately, law schools in the future, like the legal profession itself, will be at once more collaborative, diverse, international, technologically friendly, and entrepreneurial than they are today.

“It is hard for us to comprehend, but today’s students are likely still to be practicing law in the last half of the 21st century,” wrote Thomas D. Morgan, the Oppenheim Professor of Antitrust and Trade Regulation Law at The George Washington University Law School, in his paper “Educating Lawyers for the Future Legal Profession.”

“None of us knows much about what the world will look like in 2050, but the challenge of legal education is one of helping students navigate toward that indefinite future. To meet that challenge, we must think about what future lawyers will do. Conversely, as we think about coming changes in legal education, we may also get a richer sense of what kind of people tomorrow’s lawyers are likely to become.”

Entrepreneurs Wanted
Tomorrow’s law school curriculum will need to be more entrepreneurial to respond to the financial pressures on the legal profession and the opportunities wrought by innovation and globalization. New lawyers entering the practice, whether they are sole practitioners or working inside a top–100 firm, must be fully trained on day one, capable of applying the law and managing the fluctuations inside law firms.

One possible—some would say likely—prospect that could have a truly dramatic effect on law schools and the profession already exists in Australia and soon will arrive in the United Kingdom: the publicly traded law firm. Australia was the first country to sanction them; its first firm to go public was Slater & Gordon, a plaintiffs firm that netted $35 million when it was listed on the Australian Stock Exchange in May 2007.

In the United Kingdom, the Legal Services Act of 2007, much of which is expected to take effect in 2011 and 2012, encourages more competition in that country’s legal market by allowing the creation of alternative business structures (ABSs), a provision that permits nonlawyers to partner with lawyers in providing legal services.

Publicly traded law firms are not so outlandish that they cannot catch on in the United States, a country where capitalism reigns. Critics have suggested these types of external investments—which would allow supermarkets, insurance companies, or banks to set up retail law firms—could pose ethical problems if nonlawyer investors attempt to influence the lawyer–client relationship. Proponents say the same ethics rules would apply to nonlawyers as lawyers, and publicly traded law firms would be no more ethically flawed than today’s firms.

While Rule 5.4(b) of the ABA Model Rules of Professional Conduct prohibits lawyers from forming partnerships with nonlawyers if “any of the activities of the partnership consist of the practice of law,” there will be enormous pressure to alter the ban, especially from plaintiff firms that work on a contingency basis and could use a shot of capital.[1] Most state bar associations have similar bans on nonlawyers owning an interest in a law firm, although the District of Columbia has an exception for nonlawyers who assist a firm in legal services and agree to operate by the Bar’s professional code of conduct.[2]

In the future, these very open and accepted applications of business principles in the law firm will transform the relationship between lawyer and client. Very much like the business world, law firms may find that their corporate and individual clients may not be guided as much by reputation and credentials as by outcomes and value added to the work. Law students will need to be well versed in this dichotomy.

“Everyone realized that when the economy is lean, you have to have business skills, be savvy and mature when you’re dealing with people,” said Gregory E. Maggs, interim dean and professor of law at George Washington. “You really want to make sure that young lawyers can fit into the business environment and understand the economics of a law firm and be able to run it. They need to be able to understand business culture.”

Furthermore, the evolution of the general counsel from legal matchmaker to legal arbiter is setting a new course for the profession. General counsel are no longer just charged with babysitting big law firms and their monthly bills. Instead, they are being asked to assess the whole legal marketplace and look for efficiencies and opportunities—big firms for this job, outsourcing for that one. They must be equal parts entrepreneur and lawyer, the intermediary between high–end corporate purchasers of legal services and big law firms. It is these types of new paradigms that will demand a more entrepreneurial approach to the law in the future—and a more entrepreneurial legal education.

“A lot of economic pressures are changing the practice of law, so that will have an impact on the number of opportunities open to young lawyers coming out of law schools, and that, in turn, affects what we do in law schools,” says Kurt L. Schmoke, dean of Howard University School of Law. “We are all linked together in this.”

Crossing Borders
Going global is the low–hanging fruit of opportunity for law schools. Globalization is remaking the face of international business, politics, and technology, prompting law schools to spin off new programs and institutes overseas to widen their outreach and pad their bottom lines.

It is imperative that new lawyers be able to operate in the global marketplace, equipped with vital cross–border legal skills and the necessary cultural sensitivities to feel at home in Shanghai, Dubai, or London. Toward that future, many law schools are offering cross–border scholarship opportunities for faculty and students, mandatory semester–abroad programs for students, and executive LL.Ms for foreign–trained lawyers.

“There’s been a dramatic change since I graduated from law school in 1985,” says Georgetown’s Treanor. “Practices were almost exclusively domestic. Big firms may have had clients outside the United States, but now law firms have branches outside the United States. Law firms are international entities, and even if you’re in government, it’s very likely your work has some kind of global dimension.”

And global legal training won’t always be centered on corporate law, either. As borders have receded, and will continue to do so in the future, the need for lawyers who are knowledgeable about complex laws and agreements governing international trade, environmental protection, and human rights is expanding. New international regimes and treaties require lawyers who feel comfortable operating with a global portfolio, undeterred by the complications of working in international legal systems.

“Students need to get a much better grounding in international issues, and they should be given opportunities to work with people from all over the world,” says Katherine S. Broderick, dean and professor of law at the University of the District of Columbia (UDC) David A. Clarke School of Law. “The whole global push is enormously important to us. As part of our strategic planning, we are looking to infuse more classroom offerings with opportunities for students to explore global legal issues.”

One of the benefits of these types of global alliances is the increasing diversity of the student body and faculty. Female students make up about 50 percent of U.S. law school populations today and even greater percentages overseas. More globally focused law schools likely will have more diversity in terms of race, sexual orientation, and religion.

As borders have crumbled in the legal profession, they likely will do so as well between law schools. The demand to have the ABA sanction foreign law schools is escalating, and a handful of overseas law schools are lining up to be the first candidates. The Jindal Global Law School outside of Delhi, India, and the Peking University School of Transnational Law in China have announced plans to seek accreditation if the ABA opens up its process.

Like many efforts to inject international competition into the United States, this one has proponents who see only virtues and opponents who see a struggle for limited resources. It is an idea that is a nonstarter right now for many law school deans. “I think it’s premature to decide whether to certify them or not,” says Claudio M. Grossman, dean of American University Washington College of Law. “There are many components to this decision, and it’s too soon to do it.”

Going forward, collaboration—global, national, or within the university—may prove to be a guiding principle for law schools. By crossing all types of borders, law schools will be better able to leverage their resources and provide a more dynamic education experience to their students.

The good news is law schools are offering more joint degrees within the university environment, such as partnering with business, communications, and medical schools, and developing new LL.M opportunities to reach out to a new pool of international students as well as American professionals seeking more specialized training.

“One of the wonderful qualities about legal education as it has developed over the years is that it has been very adaptive and responsive in terms of providing students with the opportunity to explore a wide range of law practice specializations,” says Veryl Miles, dean of The Catholic University of America Columbus School of Law.

Adapting to Technology
Law schools are not normally considered “first adopters” of technology, but they have steadily, if reluctantly, accepted the Web’s creeping influence in their classrooms. Law schools may be forgiven for being technological slowpokes. Perhaps it is too much to expect of legal education, long based on the deliberative Socratic method, to swiftly remake itself with social media’s hat trick: Facebook, LinkedIn, and Twitter.

In the future, law schools will have to embrace technological innovation in its many forms, and, even more importantly, acclimate their student bodies to the technologies reshaping society. Some law professors may find the idea of students tweeting or texting each other during lectures appalling, but it is a common practice in workplaces, and will become even more so in the future.

Moreover, the ubiquity of handheld communication devices has trained students to seek answers on the Internet. A scenario where law professors daily incorporate handheld technology into the classroom—training students on how best to find an answer rather than requiring them to memorize it—is right around the corner. Business schools fought a similar battle over the presence of calculators in the classroom years before, and lost.

Rapidly advancing technology for video conferencing and distance learning is opening the door to remote experts, cost savings, and a more elastic classroom that better serves students. These tools will only grow in their use, and, in the process, will shrink distances to allow for a truly global faculty and student body. Still, there remains some skepticism about efficacy of developing mentoring relationships by way of plasma screens.

“Many people think the law is being transformed by technology,” says George Washington’s Maggs. “In the end, some things never change. Careful reading and critical thinking are things that can be facilitated by technology, but the outcome remains the same.”

“When I teach my course, I still think the most important thing is to read the assigned cases very carefully, whether they are in an electronic format or… on paper in a casebook. There’s still no substitute for reading what the judge wrote and asking people difficult questions about it,” Maggs adds.

The challenge going forward for law schools will be how to manage all the information that new technology delivers. “Everything that can be done by a computer is being done by a computer,” says American University’s Grossman. “In the past, the problem was access to information. The problem now is selection of the right information.”

That is why law librarians will be key players on campus. The future of the law school library is not about bringing new technology in, but rather how to balance—both finances and real estate—the dual need for printed casebooks, magazines, and journals and online subscriptions to research services and publications. “The ABA still wants you to have these vast collections of books,” says UDC’s Broderick. “That is a financial disaster for public schools, which are charging lower tuitions and cannot afford expansive libraries. The bar wants to see a substantial collection in your library, and that includes hard copies.”

But solutions abound and they point to new, collaborative directions. The law schools at George Washington, Georgetown, and the University of Pennsylvania have agreed to share the costs of keeping their hard–copy casebooks current. Each school buys a third of the necessary printed volumes and journals, and the materials are made available through interlibrary loans, saving money and allowing for greater cooperation.

Experience v. Theory
When it comes to clinical training, law schools have always suffered in comparison to their medical counterparts in the ideal mix of theoretical and experiential training. Medical students are taught anatomy with books and lectures, but they are also put through their paces in clinics and hospitals to care for patients long before they receive their degrees.

In the future, law schools will emphasize far more the clinical components of their programs, as they look to involve their students in the business of law at earlier and earlier stages in their education. Many schools effectively have injected large doses of practical-skills training into newly launched courses, or weaved key skills such as brief writing into already established courses.

“The profession itself has tried to argue that law schools should do more experiential instruction, and a lot of that is because corporate clients have indicated to firms that they don’t want to pay for training young lawyers anymore,” says Howard’s Schmoke. “Also, firms want to know that young people know where the courthouse is and how to take a deposition. They can refine their skills once they get into a firm, but they don’t want to have a young lawyer starting from scratch on skills training.”

But do not prematurely declare the death of legal theory. One promise of the future is that legal theory may be more, not less, important. Certainly it will be vital to have a thorough knowledge of legal theory when trying to work on a global scale, applying the rule of law across various legal traditions. A solid foundation in legal theory will be helpful as lawyers work in collaboration with professionals in medicine and business to create new entities inside and outside law schools. And a broad understanding of theory will be key when marrying technological innovation with the practice of law.

Two prime examples of the need for a strong grounding in legal theory are the outsourcing of discovery work and the growth of online legal services. Both innovations take routine tasks and remake them to reduce costs and increase efficiency. To create and manage these types of services, lawyers need to be familiar with more sophisticated transactions and understand where the law intersects technology—all of which requires an underlying framework of legal theory. Without understanding that foundation, it would be impossible to craft a solution or innovation that is both reliable and legal.

The same likely will be true of legal ethics and professionalism in the coming years. Ethics education has not always been the highest priority of legal training, a situation that critics have lamented as professionalism took a back seat to other more contemporary courses and themes.

“Law schools fail to complement the focus on skill in legal analyses with effective support for developing ethical and social skills,” the 2007 Carnegie report concluded. “Students need opportunities to learn about, reflect on, and practice the responsibilities of legal professionals. Despite progress in making legal ethics a part of the curriculum, law schools rarely pay consistent attention to the social and cultural contexts of legal institutions and the varied forms of legal practice.”

Because lawyers play a different role in society than chief executive officers—safeguarding civil rights, advancing the rule of law, and serving at the critical edge of ethical choices—lawyers must always be grounded in an ethical system that both guides their personal choices and provides good counsel for their clients.

Establishing an ethical foundation for young lawyers will be vital as they wrestle with new situations and relationships in a global legal market. By introducing law students to professional responsibility early in their law school careers, they will have the grounding they need to address and solve the difficult ethical decisions they’re bound to confront throughout their careers. “This is a responsibility we all must respect and share,” says American’s Grossman.

Unsustainable Costs
The economics of law school operations have always been a delicate balance of supply and demand, and will continue to be so in the future. Law schools are dependent on tuition to finance their operations, but tuition has become a pressure point that threatens the entire enterprise.

That is why observers speculate that the traditional structure of law schools may be upended in the next five to 10 years, leaving the three–year program as only one of many options for legal training. Instead, students could choose condensed courses of study, including one- and two-year program options, or access distance–learning solutions.

“Tuition and living expenses, high as they are, typically are only part of the cost of going to school,” Morgan wrote in his “Educating Lawyers” article. “Often the greater cost is income not earned in the three years of law school. The ability to complete law school in two years or less could substitute the relatively high salary of a first-year lawyer for the relatively insignificant salary of most students.”

These changes are necessary to address one critical fact: law school debt is staggering and unsustainable. Between the 2001–02 and 2008–09 academic years, the amount of money borrowed by law students to cover their expenses grew considerably. In 2008–09, students borrowed $66,045, on average, to graduate from a public law school, up from $46,499 in 2001–02, according to the most recent ABA statistics. Contrast that with borrowing for private law schools, where students borrowed, on average, $70,147 in 2001–02 and $100,003 in the 2008–09 academic year.

Students have balked at the costs, especially because their wages have not kept pace with law school tuition. The salary a young lawyer commands cannot always offset the cost of a legal education. The 2010 Associate Salary Survey by the National Association for Law Placement shows that the median first-year salary for private firms was $115,000, compared to the median entry-level salary of $42,000 for an attorney at a civil legal services organization. The median entry–level salary for public defenders was $45,700.[3]

Beyond the dollars, legal officials worry that the size of debt is now impacting the choices that students make, both in deciding whether to come to law school and what types of law they will practice once they graduate.

“While [Catholic University] has been fortunate to be able to increase our tuition discount over the last several years, the discount is not sufficient to reduce the cost of education for all of our students,” says law school dean Miles. “In part because of our mission of service, we attract a good number of students who enter the legal profession as a means of working on behalf of the less fortunate and disenfranchised. Students with large debt loads may be limited in the types of positions they are able to pursue after graduation.”

A Glut of Lawyers
Behind every discussion about the future of legal education in the United States is an equally serious but lower–profile debate about whether there are too many law schools producing too many lawyers. In the 1963–64 academic year, some 49,000 students were studying in 136 law schools in the United States; 154,549 students attended 200 law schools in the 2009–10 academic year.

Many have argued that there is a systemic oversupply of new lawyers and it will continue unabated into the future without some action by the ABA to limit the number of law schools and graduates. Others think that the market will eventually right the disparities, as law schools pare back their admissions and lower wages redirect some attorneys to use their law degrees in other professions. Talk of accrediting overseas law schools has only added to concerns about a future, as some worry that foreign-educated lawyers could swamp the U.S. market.

Yet some experts feel there are not enough law schools or lawyers in the United States or internationally to serve the growing population of clients in need of services. “There are not nearly enough law schools to represent those most in need of help and to promote progressive policy legal reforms and legislation,” says UDC’s Broderick.

Generally, the ABA’s law school accreditation process has been attacked for not being sufficiently stringent in the accreditation and reaccredidation oversight processes. Miles, who sits on the ABA’s Accreditation Committee, disagrees, noting that the marketplace has a way of righting the ship over the long term.

“In my experience, the review process is careful and rigorous in terms of assessing whether an existing or proposed school meets the standards for accreditation,” Miles says. “And, it has been the response of the ABA leadership that its role in the accreditation process is to assure compliance with standards of quality for law schools and the lawyers they produce, not to limit the number of schools or lawyers. This is not to say increases in the number of schools and lawyers are not a concern, but economic forces will most likely address undue increases in the number of schools and lawyers over time.”

A Final Caveat
Divining the future of law schools is admittedly a crapshoot. Five years ago, no one would have foreseen that the well–heeled law firms that call Washington home would have been forced to restructure, laying off staff and trimming partner profits (or even closing their doors, in some cases), to search for the new normal in streamlined operations.

Today, law schools are at a particularly critical point, because they must educate law students to operate in 2011’s unpredictable and changing environment, while keeping a watchful eye on trends to determine where the legal profession will be in five and 10 years. No easy task.

Law schools quietly suggest that their ability to transform for a new era is limited, in part, by the strict guidelines they must adhere to for accreditation. Critics of regulation have argued that once market pressures intensify enough to force accrediting associations to change regulations, there will be a rush to remake law schools and their programs. In sum, the introduction of competition through a more deregulated system, while controversial and destabilizing, would trigger a massive reorganization among law schools and in the profession itself.

“There are too many of the wrong kinds of law schools,” says Ribstein, the University of Illinois associate dean. “We need more law schools attuned to the market, and that won’t happen without some competition, and that will only occur with a change in regulation.”

All this talk of change ignores a critical fact, of course. Most solo practitioners and lawyers in small firms in the United States operate in much the same way they would have 50 years ago. Certainly information technology has made their practices more efficient, but it doesn’t substantially alter the type of work they do or their clients. While large law firms are competing on a global scale, small firms are still competing in their local neighborhoods and cities. They might benefit from broad reforms in law schools, but then again they might not.

Perhaps the advantage of this inflection point in legal education is that it will result in new breeds of attorneys—those who focus as much on what they are doing as why they are doing it. Young lawyers who come out of the legal system in the future will have to be experts in the law and the business of law, but they also might be more in touch with their reasons for entering the profession.

“I think students are thinking more of law as a profession,” says Georgetown’s Treanor. “We got away from that for a while. There was a period in which people came to law school because it was seen as a ticket to wealth and power, and they were often dissatisfied as a result. Because even in the best of times, business is a much better ticket to wealth than law. I think the concept of law as a profession is one that people ultimately find more satisfying and one we may be returning to.”

Sarah Kellogg is a freelance writer in Washington, D.C. She wrote last about nanotechnology in the March 2011 issue of Washington Lawyer.

Notes
[1] Rule 5.4(b) of the American Bar Association Model Rules of Professional Conduct.
[2] Rule 5.4(b) of the D.C. Rules of Professional Conduct (Professional Independence of a Lawyer).
[3] The 2010 Associate Survey from the National Association for Law Placement, available at www.nalp.org/assoc_pi_sal2010.