August 22, 2011
Is the Teaching Law Firm a Way to Produce "Practice Ready" Law School Grads?
The teaching law firm is a proposal offered by Bradley T. Borden, (Brooklyn Law School) and Robert J. Rhee (Univ. of Maryland School of Law) in The Law School Firm [SSRN] 63 South Carolina Law Review (forthcoming 2011). The authors propose that law schools can address the widespread criticism that the legal academy does not produce "practice ready" graduates by establishing affiliated law firms. From the article:
The basic idea is simple. A law school can establish a law firm that is separate and distinct from the law school. The law school firm will be a professionally-managed, revenue-generating, non-profit law firm. The CEO will be an experienced attorney with proven legal and business-development skills, who is committed to the profession and active in the legal community. The firm will hire several senior attorneys, each to manage a different practice group. The senior attorneys will be experienced attorneys with business-development and management skills, a public-service mentality, and commitment to the profession. As needed, the firm will hire more experienced attorneys to work under the practice-group managers, service clients, participate in business development, and train resident or provisional‖ attorneys.
The law school law firm operates just as any private law firm would. Although the law school firm would be non-profit organization, it would be non-profit as a matter of legal status and end motive. It should generate revenue and be self-funding (after perhaps an initial support from the law school and an organization period). This means that the law firm must find clients and source revenue just as a private firm would. The law school would be the economic owner of the law firm, and it may have profit allocation arrangements, but there would be a separation of ownership and control. We understand that this may require changes in the rules of professional responsibility regarding the sharing of fees with a non-attorney; there would be issues of accreditation; and there may be tax implications. These are also entrenched interests and concepts, and minds are not easily changed.
Two Models for the Teaching Law Firm. The authors offer two models: (1) two years of legal education with a third year attending the law-school law firm similar to the UK apprenticeship system and (2) one based on the US medical school model with three years of legal education that offers slots in the law-school law firm to select students.
Law schools may adopt one of several different law school models. Some law schools can provide the traditional three-year track and offer slots in the law firm to select students. Other law schools may provide an alternative law school firm track. Under the three-year model, the law school old offer practice-focused and advanced substantive courses. Members of the law school firm would help with instruction in the third-year courses. The practice-focused courses would available to students who intended to continue with the law school firm following graduation as resident attorneys and to students who intended to pursue other opportunities. Resident attorneys will commit to several years of work at the law firm.
Under the two-year model, law students would take a two-year curriculum that is largely the required curriculum at most law schools plus a few electives. It takes two years to develop essential skills: legal research and writing, ability to read case law and statutes, and construct an understanding of entire legal doctrines. Upon acquisition of these essential skills, a student can transfer to the law school firm to work under contract for a fixed period, perhaps three to six years after which time a provisional attorney should be prepared to begin a law practice or join another firm. Such an arrangement would be strictly in and out‖ meaning that the law school firm would not be an indefinite career option. In the firm, post-graduate law students, so to speak, would work as a provisional attorney‖ supervised by a permanent senior staff. Since the firm must be profitable and self-funding, we envision a traditional pyramidal structure of junior attorneys working under a small group of senior attorneys.
The authors offer the graphic, above right (click to enlarge), to illustrate the relationship between the law school and the law school firm.
The Economics of the Teaching Law Firm. Economic considerations abound. "Law schools and their faculties have deeply entrenched self-interest in not losing revenue," write the authors. The profits generated by the teaching law firm would have to flow back to the legal academy to compensate for lost tuition revenue.
Under either the three- or two-year model, schools and students stand to gain economically. The law school firm should be self-funding and should strive to generate profit, which can flow back to the law school, legal education, or professional development. We don’t know whether there can be a precise one-for-one matching of lost tuition revenue with profit flow back under the two-year model, but that would be the minimum goal. Greater profit can flow back to the law school for its uses, or be plowed back into the law school firm for business or professional development.
There are obvious economic considerations for law students as well. Under the two-year model, students do not pay tuition during their third year of training. Instead they work as provisional attorneys earning a trainee’s salary commensurate with their level of knowledge (very low) and skill level (beginner). Lost tuition revenue for law schools and opportunity cost for law students can be offset by profitable law practice that delivered legal training and legal services. Under the three-year model, resident attorneys would start at salaries that are higher than those paid to provisional attorneys but below those paid at traditional firms. The law school firm would be attractive to students who recognize that several years at the law school firm will enhance their professional competency and outfit them with practice skills that will provide them with independence in the future.
Show Me the Money. And then there is start-up costs. If "owned" by the law school, the teaching law firm will have to financed by the law school with good old-fashioned cash. The authors do not address the matter in any costs specificity in their thought piece. Certainly such issues needed to be address would include: compensation for the practicing attorneys, office space, administrative and support staff, IT infrastructure, legal research resources, productivity "solutions" offered by vendors, malpractice insurance, marketing, etc. Some of the costs can be capitalized, some cannot. The size of the teaching law firm legal staff (practicing attorney and law school students) would factor into the overall cost of doing business and that size could be fairly large, particularly under the two year model. Where's that money coming from? Increasing tuition? Downsizing a/k/a "right-sizing" the existing full-time law faculty?
In theory, I like the teaching law firm idea. Either version is better than the current state of affairs. Personally I prefer the two-year model because all "3Ls" would "join" the firm. I take it that law students would not be admitted to the bar until completion of their "practice ready" education under either model but some accommodation for apprenticeships or "provisional attorney" status can be made by state bars if their work product is closely supervised by the teaching law firm's attorneys; otherwise, the students would fall under the category of paralegals.
The authors conclude
Law school education and law practice are more disconnected than they should be. It is unfortunate that the legal academy cannot match the medical and business academies in providing practice-ready professionals. Newly minted attorneys typically receive their practical training on their first jobs. However, that training must be funded. The business sector, the professional bar, or the legal academy, or a combination, must bear the cost of training. At the same time, the cost of legal education is skyrocketing and law students today face a large debt load. There is a confluence of adverse economic factors.
Our idea for a law school firm addresses the totality of these problems. From a training and educational perspective, it makes sense. Economically, it makes sense for law student who would earn a small wage in the third-year rather than pay large tuitions. If the economic arrangement between the law school and the firm can be made to the law school’s satisfaction, everyone wins.
Who Wins? The students could "win" but I doubt that matters because the legal academy might not. I think it is fanciful to believe "everyone wins." If past is prologue, the moral irresponsiblity of the legal academy's current tactics right now offers plenty of evidence that the only thing that matters is keeping the legal academy's rice bowl full. Just look at the ABA's accediation standards review and proposed changes... .
A fundamental flaw in this otherwise very interesting proposition is that a law school-owned teaching law firm ends up competing for business in the marketplace with established law firms, big and small, and solo practitioners. It's not that the teaching law firm is not do-able but in these times, competing in the local market where many local law school grads practice is a convenient rationalization for not implementing a teaching law firm -- it just isn't a "good thing" for law schools to compete for business with local alumni practitioners.
Oh sure, the legal academy would explain that it does not want to interfere with its alum's livelihoods who somehow ended up becoming "practice ready" after graducation without institutionalizing a teaching law firm. But would that be the real reason? Ah, no. Local alumni are the first target for all but national law school development officers seeking donations. Certainly, competing with them by way of a local teaching law firm could be a factor but my hunch is successful alumni, the ones who who have really big checks, would ante up donations to capitalize a teaching law firm given that option. Oops. That won't do to maintain the status quo.
While those alum may have deep pockets, my second hunch is that they would direct their donations go to the teaching law firm to benefit the profession in lieu of, not in additional to, donations that benefit the the law faculty. I am speaking from some experience wherein big $$$ donors seek out establishing personal relationship beyond the Dean and development officer to find opportunites to make donations that matter because they do not buy the legal academy's pitch. They do not want their pockets picked if their donations do not improve the quality of legal education. Oops, again. Law students could win but their law school might lose.
Possibility the only way "everyone wins" is if the US News Law School Rankings adds a metric for a teaching law firm. That's something Borden & Rhee toss out as a suggestion. Of course, the weighting any producing "practice ready" law schools metric in the US News ranking methodlogy would be crucial for the legal academy to jump on the back of and try to ride this tiger.
Who is Competent to Produce "Practice Ready" Law School Grads? There is, however, an interesting implicit admission in Borden & Rhee's article. Regular law profs are simply too incompetent to produce "practice ready" graduates. Commenting on Borden & Rhee's The Law School Firm article, in A Law School Law Firm??? Yeah Right!!! on Adjunct Law Prof Blog, Mitchell Rubinstein writes:
What I find most significant is that the professors recognize that this law school law firm would have to be staffed by attorneys-not by the professors. The major problem with law school professors today is that many, if not most of them, are simply incapable of practicing law and many never had. But, this is what we have, for the most part, training the lawyers of the future.
Now, I suppose that the law schools will respond by stating that is what us adjuncts are for. Really; law schools should rely on the lowest paid members of the staff who have no say about admissions or curriculum or running the school. But, that is exactly what most law schools today do.
What a system. I hope it changes, but I do not see any evidence of that in that virtually every law school is looking for the newly minted ivy P.hd. who also has a ivy law degree and may have done a federal clerkship for a year or two.
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Posted by: Thomas Mungoven | Jun 12, 2012 8:55:00 AM