Friday, July 4, 2008
I am sitting at a computer in the University of Edinburgh halls of residence at the moment. This week has been a busy one lecturing to Virginia attorneys on the legal system of England and Wales and attending lectures by Scottish and English legal experts. My "undercover" legal persona is as a Solicitor for England and Wales and professor for elective courses in Comparative Law and European Union.
As I have been explaining various legislative and constitutional reforms that have occurred in the last 18 years in England and Wales, I have been struck by how important it is for our students to have a global perspective. So often, they take the view that the American system is the only legitimate system and close their minds to other ways of doing legal business. We can always learn from others - whether we learn about our own strengths or about our own weaknesses or about the treands abroad.
The U.K. is about the size of Oregon. So, some of the aspects of the legal system would be totally impossible for our country. Some of the aspects have been reformed so that they are more modern now than the traditions of 900 years - even the traditionalists in the U.K. would concede that some of the reforms have worked well. An example of where we could probably learn a great deal is their independent judicial appointment system. The new systemhas tried to remove even further the political impact of the Government of the Day. Additional reforms will continue this change if the Constitutional Renewal Bill 2008 becomes law. We would want more legal profession input into the selection process, but it avoids our constant political blocking of judicial appointments on state and federal levels.
However, the reforms to the legal profession itself have been downright frightening. Why should we care? Because what has happened in the U.K. could happen in part to us. So as not to bore you, I shall just list some of the items that have changed or are under discussion:
- Self-regulation is under attack in the U.K. for all professions. The Law Society (solicitors) and Bar Council (barristers) no longer have regulatory powers over the lawyers. Independent regulatory agencies under their umbrellas now handle the complaints systems and discipline. These regulatory bodies also handle education and training of the split legal profession.
- A governmental Ombudsman audits the regulatory complaint system each year and fines the Law Society and Bar Council hundreds of thousands of pounds if the complaint system timeliness targets are not met - even if most are and improvements have been made.
- Government is currently discussing inroads on lawyer-client confidentiality.
- The Legal Services Commission required law firms and chambers who wanted to provide legal aid in civil matters to sign contracts that the LSC could alter at any time. The Law Society had to take the LSC to court to get the provision stopped. (Legal Aid is widely received for civil and criminal work and is the bread and butter of many firms/chambers.)
- The Legal Services Commission froze all criminal legal fees for legal aid at minimal levels so that complex cases would not be paid what they were worth. A threatened strike by the legal professionals and pressure from the Law Society and Bar Council have caused a compromise. However, fewer firms and chambers now do criminal legal aid. (There is currently no public defender system though some pilots are working.)
- The same governmental LSC has an Ombudsman who is currently proposing a naming and shaming stage in the disciplinary process (during the complaint rather than only after discipline).
- The new Legal Services Board that will begin next year under the Legal Services Act 2007 (that will have oversight of all legal services) will be made up of a majority of lay members and will have a lay chair. It will be able to interfere not only in discipline matters but also alternative business structures and many other areas.
- Consumerism and market competition rule in the U.K. system. "Value for money" drives government reforms and professionalism is a dirty word.
- Alternative business structures (ABS) under the LSA 2007 will mean that non-legal partners will be allowed ownership of legal firms/chambers up to 25%. However, the details on how to prevent interference of the partners in legal work have not been worked out - nothing more than a gentleman's agreement seems likely since regulation of these new partners is hard to work out.
- ABS means that other entities will be able to offer legal services. To put it in U.S. terms, think Walmart-law or AAA-law.
In the United States, the separate state system of bar associations would make these changes harder to implement. However, lawyers are unpopular in the U.S. as well as in the U.K. Consumerism is on the rise. And, some states are already having some similar discussions on some of these matters. (Amy Jarmon)
Tuesday, July 1, 2008
I just returned from the AALS Workshop for New Law Prof. Overall, the conference was a success. I learned a great deal, digesting some especially good advice on scholarship and course planning. But I was struck, throughout the conference, by the almost complete lack of ASP professionals in attendance. The absolutely wonderful LSAC New ASP Prof workshop was just a few weeks ago, so I know there are 50+ new ASP prof's. While attendance at the very recent LSAC New ASP Prof workshop may explain some of the absence, it does not explain why I did not see any familiar faces at the AALS workshop.
The dearth of ASP prof's at the AALS workshop concerns me deeply for many reasons. The first reason has to do with our status in the legal academy, or our lack of status in the legal academy. Too often we are seen as lesser professionals, beneath "substantive" or "doctrinal" professors, more like support staff with J.D.'s. The lack of respect accorded our profession is compounded when we are left out of workshops and conferences that teach young professionals how to research and publish. Without knowledge of how to produce scholarship, AS may be forever doomed to second-class citizenship. More disconcerting is the genuine need for more scholarship in the areas where AS is focused; how to foster achievement in disadvantaged students, how help students pass the bar exam, how to teach so students learn, and how to reform legal education so we produce a better bench and bar. But AS professionals are not attending workshops and conferences that teach them how to produce meaningful, important scholarship.
Why aren't we attending these conferences and workshops for new law prof's? Part of the reason we are not afforded respect is the belief what we do is easy. "Easy" fields are less likely to get funding to advance skills or scholarship. But the facts point in the opposite direction; what we do is anything but easy. If helping students pass the bar was such an easy task, why aren't "doctrinal" professors successfully teaching students to pass the bar in their substantive classes? Bar prep, bar planning, and bar courses for credit are some of the most rigorous and difficult classes to teach when they are successful. Not only does a successful bar course require rock-solid knowledge of at least six bar-tested subjects, but a firm knowledge of test-taking skills, and includes a very heavy load of exam grading and feedback. Those of us who don't work with 3L's and bar takers have a similarly heavy load. We work with the students many professors give up on, students deemed unable to handle the rigors of law school. Over and over, these students succeed when given the opportunity to learn and practice skills their peers either know intuitively or learned in (better) secondary schools. In an average week during an academic semester, I grade and give feedback on approximately 20-40 essay exams. I am looking for signs that my students may have learning disabilities, mental or emotional challenges, financial problems, or family concerns that are keeping them from achieving their best. And I am keeping up with the substantive coursework in their doctrinal classes so I can prepare practice exams that accurately mirror what they have covered in class. I am preparing workshops for the entire 1L class in exam and life skills. Yet, in so many places, this is "easy" work that doesn't merit scholarship or funds to travel to conference and workshops like "substantive" faculty.
Maybe some of the reasons we are not attending these workshops and conferences is feeling like we don't belong and we are self-segregating out of conferences were we feel marginalized. The focus at AALS was on doctrinal courses, but there was plenty of cross-over to AS topics. True, the small-group breakout sessions were labeled by doctrinal subject and I was relegated to the "speciality" category, but I still had a place at the workshop. One of our own AS folk, Kris Knapland of Pepperdine, gave a wonderful presentation on learning theory. But we will never get an "ASP" breakout session if we are not attending the New Prof Workshop. We are a part of AALS, and we belong there. We need the same (and more) skills and training as new doctrinal professors, on how to navigate administrative and budget concerns, how to maintain a work-life balance, how to network, and how to have challenging conversations in the classroom or the office.
My call to all new AS professionals is this: advocate for yourself. Push for the training you need to succeed. Put critical conferences and workshops on your agenda when you talk to your supervisors. Pursue meaningful scholarship, even if you are not tenure-track. Scholarship is important to the field, important to your development as a professional, and important as we seek to improve legal education for all students.