A GUIDE TO A FUNDAMENTAL REFORM OF LEGAL EDUCATION – 25 RECOMMENDATIONS ON ENHANCING PROFESSIONAL DEVELOPMENT DURING LAW SCHOOL

As many of you may know, in July 1992 the ABA’s Task Force on Law Schools and the Profession: Narrowing the Gap issued what came to be called the “MacCrate Report”, a withering critique of traditional law schools. In substance, the task force compiled a list of the 10 fundamental skills and the 4 fundamental values needed to be taught in order to be a trained member of the legal profession. It found that law schools teach only 2 of the skills and not well at that.

 While it did not make specific findings about the deficiencies in teaching the values, it suggested more emphasis on them including a recommendation that law schools should be concerned to convey to students that the professional value of the need to “promote justice fairness and morality” is an essential ingredient of the legal profession. .

 At the heart of the report is its “demand” that: law schools affirm that “education in lawyering skills and profesional values is central to the mission of law schools”; they should use effective teaching methods, and they should make students aware of the full range of opportunity for professional development in the rich variety of private practice settings.  

The response to the issuance of the report was immediate. Some law school deans opposed the findings of the report. The basic argument of the deans was that the report looked at legal education from the point of view of practitioners. There has been opposition from law school faculty for years of anything that smacks of turning their institutions into “trade schools”.

 However, there was a flurry of activity in support of the report. A task force was formed within the AALS to implement the MacCrate Report. Within the ABA, in February, 1994. a resolution proposed by the Illinois and Iowa state bars asking the ABA House of Delegates to support of some of the recommendations of the report passed. The ABA’s Section of Legal Education and Admissions to the Bar sent the resolution to the deans of all the ABA approved law schools and was scheduled to report to the House of Delegates at its next annual meeting. The Commission on Legal Education of the State Bar of Wisconsin proposed reforms of legal education based on the recommendations of the MacCrate Report.

 All of that was in 1994. For the last 15 years, other than when I write an occasional article in praise of it, there seems to be scarce mention of the MacCrate Report.   Now while I am not a believer in conspiracy theories, I do have to mention that about 1994 the ABA decided for the first time to hire an Executive Director and the person chosen for the position was prior to that a dean of a law school who had written and spoken out against the MacCrate Report.

Even if you have not read the entire 414(!) page report, you will still be able to recognize how comprehensive the recommendations are, and how the adoption of these, 25 recommendations (which can be found on pages 330-334) would fundamentally change the way in which legal education is delivered.

As usual, comments are invited and welcome.

C.  Enhancing Professional Development During the Law School Years

1. Law schools and the practicing bar should look upon the development of lawyers as a common enterprise, recognizing that legal educators and practicing lawyers have different capacities and opportunities to impart to future lawyers the skills and values required for the competent and responsible practice of law. (Introduction, Chapter 4.D, Chapter 5.C, Chapter 7.A, Chapter 7.B, Chapter 7D, Chapter 8.E and Chapter 9)

2.  Standard 301(a) regarding a law school’s educational program should be amended to clarify its reference to qualifying “graduates for admission to the bar” by adding: “. . . and 40 prepare them to participate effectively in the legal profession.” This would affirm that education in.lawyering skills and professional values is central to the mission of law schools and recognize the current stature of skills and values instruction. (Chapter 7.C and Chapter 7.B)

3. It is time for the Section of Legal Education and Admissions to the Bar to revisit generally the treatment of skills and values 4instrüction in the accreditation process in recognition of the skills and values identified in the Statement of Fundamental Lawyering Skills and Professional Values as those with which a lawyer should be familiar before assuming ultimate responsibility for a client. (Chapter 7.C, Chapter 4.D, Chapter 5.C, Chapter 7.A and Chapter 7.B)

4. In light of developments in skills instruction and the Task Force’s Statement of Skills and Values, the interaction between core subjects, treated in Standard 302(a)(i), and professional skills, treated In Standard 302(a)(iii), should be revisited and clarified. The interpretation of Standard 302(a)(iii) should expressly recognize that students who expect to enter practice in a relatively unsupervised practice setting have a special need for opportunities to obtain skills instruction. (Chapter 7.C, Chapter 7.A, Chapter 7.B, Chapter 4.D and Chapter 5.C)

5. Each law school faculty should determine how its school can best help its students to begin the process of acquiring the skills and values that are important in the practice of law, keeping in mind not only the resources presently available at the school, but the characteristics of effective skills instruction. (Chapter 7.3, Chapter 4.D and Chapter 5.C)

6.  To be effective, the teaching of lawyering skills and professional values should ordinarily have the following characteristics:  development of concepts and theories underlying the skills and values being taught; opportunity for student& to perform lawyering tasks with appropriate feedback and self-evaluation; reflective evaluation of the students’ performance by a qualified assessor. (Chapter 7.3 and Chapter 4.D)

7.  The Interpretation to Standard 201(a) relating to the self-study process should require law schools to evaluate their programs in the light of Standard 301(a) and (c) and should refer to the Task Force’s Statement of Skills and Values and the literature analyzing the roles and competencies of lawyers, (Chapter 7.C, Chapter 7.8 and Chapter 4.D)

8.  Each law school should undertake a study to determine which of the skills and values described in the Task Force’s Statement of Skills and Values are presently being taught in its curriculum and develop a coherent agenda of skills instruction not limited to the skills of “legal analysis and reasoning,” “legal research,” “writing” and “litigation.” (Chapter 7.3, Chapter 7.C and Chapter 4.D)

9. Law schools should identify and describe in their course catalogs the skills and values content of their courses and make this information available to students for use in selecting courses. (Chapter 7.8, Chapter 6.8 and Chapter 4.D)

10, The Task Force’s Statement of Skills and Values should be made available to all entering law students to inform them about the skills and values they will be expected to possess as lawyers and to help them seek appropriate educational opportunities in law school, in work experience and in continuing legal education. (Chapter 4.D, Chapter 5 and Chapter 6,8)

11. Law students should be advised with respect to course selection to consider what opportunities may or may not be available to them after law school to develop the skills and competencies they will need in practice. (Chapter 2, Chapter 6 and Chapter 7.8)

12. Law schools should continue to emphasize the teaching of the skills of “legal analysis and reasoning” and “legal research,” as described in the Statement of Skills and Values, through a wide variety of instructional modes, including well-structured clinical programs. (Chapter 7.3 and Chapter 4.D)

13. Law schools should be encouraged to develop or expand instruction in such areas as “problem solving,” “factual investigation,” “communication,” “counseling,” “negotiation” and “litigation,” recognizing that methods have been developed for teaching law students skills previously considered learnable only through post-graduation experience in practice. (Chapter 7.A, Chapter 7,8 and Chapter 5.C)

14.  In view of the widely held perception that new lawyers today are deficient in writing skills, further concerted effort should be made in law schools and in programs of transition education after law school to teach writing at a better level than is now generally done. (Chapter 7.8, Chapter 7.C, Chapter 8.E and Appendix B)

15.  Law schools through well-structured clinical programs should help students understand the importance of the skill of “organization and management of legal work,” although it will remain for the first employer or mentor to translate that awareness into a functioning reality through providing supervised practice experience. (Chapter 7.8, Chapter 7.D, Chapter 8.E and Chapter SC)

16.  Law schools should play an important role in developing the skill of “recognizing and resolving ethical dilemmas” and in placing these issues in an organized conceptual framework, although the exposure in law school clinical programs or classrooms is necessarily very limited compared to the variety and complexity of the dilemmas presented in practice. (Chapter 7.8, Chapter 7.D, Chapter S.E and Chapter 5.C)

17. Law schools should stress in their teaching that examination of the fundamental values of the profession” is as important in preparing for professional practice as acquisition of substantive knowledge. (Chapter 7.A and Chapter 5.C)

18. The practicing bar should be assiduous in discharging its responsibilities for inculcating professional values through contact with students in part-time work and summer jobs and as colleagues or mentors in the early years of practice. (Chapter 7.A, Chapter 7.D and Chapter 5.0)

19. Law.school deans, professors, administrators and staff should be concerned to. convey to students that the professional value of the need to “promote justice, fairness and morality” is an essential ingredient of the legal profession; the practicing bar should be concerned to impress on students that success in the practice of law is not measured by financial rewards alone, but by a lawyer’s commitment to a just, fair and moral society. (Chapter 7.A, Chapter 7.D and Chapter 5.C)

20.  Law schools and the organized bar should work together to make law students aware of the full range of opportunity for professional development in the rich variety of private practice settings, in panels for prepaid and group legal services, in positions in the public, sector, in staff counsel’s offices in corporations and other organizations, and in the practice of public interest law in all its dimensions, as well as of the profession’s expectation that all lawyers will fulfill their responsibilities to the public and support pro bono legal services for those who cannot afford a lawyer. (Chapter 2, Chapter 5 and Chapter 6.8)

21.  Law schools and employers of law students should work together to inject educational value into any work experience during the law school years, developing models for strengthening the educational content of part-time employment and developing workshops offered at the beginning of the summer clerkship season to support the educational aspects of summer employment. (Chapter 7.D)

22.  Since the employment marketplace is a crucial forum in which the practicing bar transmits its values to law students, members of the bar who recruit, interview, and hire should convey to students, both by words and by their decisions, the importance they place on a student’s having had exposure to a broad range of skills and values instruction, including clinical courses, (Chapter 7.A, Chapter 7.D and Appendix B)

23. The National Association of Law Placement (NALP) should be asked by the Section of Legal Education and Admissions to the Bar to add to NALP’s annual employer questionnaire questions designed to elicit information  pertaining to the educational quality of law office summer programs. (Chapter 7.D)

24.  Law schools should assign primary responsibility for instruction in professional skills and values to permanent full-time faculty who can devote the time and expertise to teaching and developing new methods of teaching skills to law students. In addition, law schools should continue to make appropriate use of skilled and experienced practicing lawyers and judges in professional skills and values instruction with guidance, structure, supervision and evaluation of these adjunct faculty by full-time teachers. (Chapter 7.8)

25.  There should be faculty involvement in the design, supervision and evaluation of every program of extern experience, and accreditation standards should emphasize the critical importance of faculty responsibility for overseeing extern programs. (Chapter 7.B and Chapter 8)