Monday, February 13, 2012
Yesterday, I posted on the need to distinguish between rules of professional conduct and professional identity. As we all know, lawyers frequently face disciplinary action. Is this mostly due to a failure to know the rules or a lack of professional identity--a general ethical failing?
In a recent post, Professor Michael Downey declared, "practical learning in legal ethics is critical. I started teaching trust accounting in my legal ethics courses after hearing a Colorado disciplinary counsel discuss that recent graduates were facing an increasing number of bar investigations when they overdrew their trust accounts. Considering that the economy is pushing many lawyers to smaller firms or solo practices, knowledge of trust accounting can be crucial, particularly when mishandling client funds may result in prompt, catastrophic discipline."
Although I applaud Professor Downey for stressing practical learning in legal ethics, I wonder whether mishandling client funds is usually due to a failure to know the rules or a lack of professional identity. Professor David Thomson has defined professional identity as "one’s own decisions about [professional] behaviors. . . as well as a sense of duty as an officer of the court and responsibilityas part of a system in our society that is engaged in upholding the rule of law." Lawyers know that it is against the ethical rules to steal a client's funds, and the rule against co-mingling a client's funds with the lawyer's funds is emphasized in most legal ethics classes. It seems to me that one who mishandles a client's funds lacks "a sense of duty as an officer of the court" and fails to understand his "responsibility as a part of a system in our society that is engaged in upholding the rule of law." It involves "one's own decision about [professional] behaviors," not a misunderstanding of the rules.
While I have said in previous posts that we should be teaching the ethical rules across the curriculum, law schools must also develop their students' professional identities, or the teaching of the ethical rules will be a waste.
This article entitled Top 10 Law School Home Pages of 2011 by Georgetown law librarian Roger Skalbeck, available at 2 Journal of Law (1 J. Legal Metrics) 25 (2012), ranks web pages for all ABA accredited schools based on 24 criteria including visual design as well as the technical, non-visual characteristics like metadata and html source code.
Here are the top 10:
#4 (tie) Wake Forest University School of Law
Click here and scroll down to see the rankings for the remaining 190 or so schools.
William D. Henderson and Andrew Morriss have started a new blog The Legal Whiteboard on legal education. Bill Henderson says the following on the blog's first post:
"Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp. Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work. What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper. Many legal services will become more standardized, productized and commoditized. I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model. But clients – including corporations, government and ordinary citizens—will love it. Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.
Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal. The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.
Many people assume that the new paradigm means lawyers working longer hours for lower wages. That is one future business model. But I think it utterly lacks imagination. Lawyers are problem solvers. To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem. And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard. (I am told it is quite a spectacle to behold.) I am also someone who loves to collaborate. With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers."
Andy Morriss states in his first post: "I'm going to focus on a couple of things here, at least initially. First, I'm slowly working my way through bits of the considerable body of literature on teaching from outside the legal academy. There's a lot of good stuff out there - some of it based on data! - and I'll try to spur some conversation about that. Second, as Bill noted, there's a lot of interesting data out there that the legal academy is not yet using. I'll try to help that conversation along as well."
Bill and Andy, Welcome to the legal education debate! We look forward to reading your blog.
How lawyers get a bad name department. From the Charleston Daily Mail:
For the fifth year, the Webb Law Firm will give away a free divorce for Valentine's Day.
The service will go to the person, who in the opinion of the firm, presents the most compelling story as to why they deserve a free divorce. The divorce is limited to an uncontested, no-fault case with no or minimal child custody issues and is limited to the jurisdiction of West Virginia.
The service is free, but the winner is responsible for fees, costs and expenses. Current Webb clients are ineligible.
Happy Valentine’s Day!
Brent Evan Newton has posted a new article on SSRN concerning legal education reform entitled The Ninety-Five Theses: Systemic Reforms of American Legal Education and Licensure. Professor Newton's thesis is that "Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are 'practice ready.'” While I don't agree with everyone of his points, I think that Professor Newton's article is a major contribution to the legal education reform debate.
Abstract: Knowledgeable and respected authorities inside and outside the legal academy are correctly describing the American system of legal education as being in a state of “crisis” and in need of dramatic reforms. Yet most members of the legal academy refuse to accept that major structural reforms are necessary. Despite the academy’s intransigence, I feel compelled to nail my 95 theses to the academy’s door in the hope of hastening, however slightly, its glacial movement towards meaningful reform. The theses comprise six major themes, the first five concerning the legal academy and the sixth concerning the legal profession itself: (1) defects in the law school admissions process; (2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools; (3) defects in law schools’ curricula, pedagogical methods, and assessments of students; (4) deficiencies in the professoriate at law schools; (5) problems related to legal scholarship and law reviews; and (6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market. Most of the problems are interrelated and result in a negative synergy that increasingly threatens the health of the legal profession. As a result, the only way to effect meaningful change likely to persist is to implement systemic reform – root to branch.
Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are “practice ready.” They should hire faculty members; design curricula and pedagogies; and admit and assess students with the primary goal of producing attorneys who can hit the ground running upon graduation. Law professors should make legal scholarship secondary to their teaching duties, and their scholarship should be relevant to the bench, bar, and legal policy-makers. Law schools also need to charge a fair amount of tuition in view of the quality of the legal education that they provide to students and expect students to carry reasonable amount of debt in relation to their job prospects. Finally, state licensing authorities should require law school graduates to demonstrate the broad range of competencies needed to be an effective entry-level practitioner before licenses are issued.
With these aspirations for the legal academy and legal profession in mind, I contend that that many structural changes in the current system of legal education are necessary – beginning with the manner that schools admit law students, continuing with the manner they teach and assess them during law school, and concluding with the manner in which law school graduates are admitted to the bar. Some proposed reforms look to effective practices in American medical schools and business schools as models. For most of the reforms to occur, law schools must engage in paradigm shifts in several areas in addition to modernizing their curricula and pedagogies – they must alter the composition of their faculties, their approach to legal scholarship, and their relationship with members of the bench and bar. The ABA’s Section on Legal Education and Admissions to the Bar must pave the way in order for these structural changes to occur. In particular, the ABA standards governing law school accreditation must be amended substantially – with respect to faculty composition, faculty governance, faculty duties concerning scholarship, and law school curricular requirements. Without such changes, no meaningful systemic reform will ever occur, and the many problems that currently plague legal education will continue. The ball is in the ABA’s court but, ultimately, law schools must effect change themselves (with or without the ABA’s help, to the degree that they are able) – for the good of law students, the legal profession, and the public. We can, and should, turn the current crisis in legal education into an opportunity for meaningful change.
A few weeks ago, I wrote a post on incorporating legal ethics into doctrinal courses. I concluded that "I agree with the Carnegie Report that we need to teach professionalism better in law school. Probably the best way of doing this is to incorporate skills training into doctrinal courses, especially now that casebooks and supplemental texts allow professors to easily do this."
David Thomson posted a reply on his blog Law School 2.0:
"Scott is right on track. It is possible to integrate professional ethics issues into any doctrinal course, and with the Skills & Values Series (as it grows to cover nearly every subject), it should be fairly easy to do.
I would only add that as we develop our thinking about professional ethics instruction, we should be explicit about what we mean. It seems to me that the terms "Professionalism" and "Professional Identity" have been getting confused. Yes, there is some overlap between them, but each contains components that are distinct from the other. The Carnegie report is critical of legal education in not teaching or - more accurately, I think - creating opportunities for students to develop their professional identities.
Here is my shot at the distinction - Professionalism relates to behaviors, such as timeliness, thoroughness, respect towards opposing counsel and judges, responding to clients in a timely fashion. I actually think we teach this pretty well in law school, across the curriculum. We expect certain behaviors (often we define them in our course policies documents, and certainly they are defined in the student handbook), and for the most part we get them. Professional identity relates to one’s own decisions about those behaviors (which sounds like overlap, but it’s not), as well as a sense of duty as an officer of the court and responsibility as part of a system in our society that is engaged in upholding the rule of law. For me, "teaching" Professional Identity means we ask the student to finish this sentence: "I am a lawyer, and that means, for me that I will resolve this ethical dilemma as follows…"
I agree with Professor Thomson that law schools need to teach both types of professionalism–the rules of professionalism (along with professional behavior) and professional identity. Law schools rarely teach the second one, except for clinics and some legal skills classes. Maybe this gap is why there are so many ethical complaints against lawyers and why the public views lawyers so poorly.
New law students have a picture of what being a lawyer is like from television and movies. Unfortunately, television and movie writers seem to be unaware of the rules of professional conduct. Of course, it is more dramatic to win a case through a "clever" trick than good, ethical lawyering.
Therefore, we need th teach our students professional identity–not socialization as an elite, which we currently teach and which dates back over 100 years to Langdell, but how to be a professional in the real world in relation to clients, other attorneys, judges, and the public.
I have mentioned this article before, but I will cite it again because it provides a good beginning for developing professional identity: A recent article by Denise Platfoot Lacey advocates that law schools go beyond classroom teaching of ethics to evaluate their students' professional conduct in law school.
Abstract: "There has been a repeated call to incorporate professionalism training in legal education in order to assist students in developing professionalism. While law schools have begun to answer this call, they often fail to teach and assess actual professionalism behaviors of their law students. Such failure results in lost opportunities to impart to law students the expectations of the legal profession, as well as to help them to develop the highest standards of conduct. This article will present information about a model of professionalism assessment in medical education and how it can be integrated into legal education to facilitate the teaching and evaluation of professionalism in law students."
Sunday, February 12, 2012
100 Parenthetical Starter Words (Part 3 of 3)
In a pair of posts last month we looked at how to effectively use parentheticals in legal writing. For those who missed Part I, you can find it by clicking here. As I mentioned in Part II, parentheticals should almost always take one of three forms. The most common form of parenthetical begins with an “-ing word.” Take, for example, the following parenthetical: United States v. Hill, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011) (upholding warrantless search of iPhone photos incident to arrest).
Here is a list of some of the most common parenthetical starter words in legal writing to help you begin:
- admonishing (or reprimanding; chastising; rebuking)
- adopting (or endorsing; approving; embracing; espousing; supporting)
- allowing (or permitting; accepting; condoning; enabling; facilitating)
- analyzing (or examining)
- arguing (or advocating)
- asserting (or affirming; declaring)
- avoiding (or sidestepping)
- awarding (or granting; assigning)
- canvasing (or inspecting; scrutinizing)
- cautioning (or warning)
- challenging (or questioning)
- clarifying (or elaborating; expanding; correcting; adding)
- comparing (or analogizing)
- conceding (or admitting)
Villanova University School of Law (VSL) announced today that Jeffrey S. Moorad VSL ’81, the vice chairman and CEO of the San Diego Padres, has committed $5 million for the creation of the new Jeffrey S. Moorad Center for the Study of Sports Law.
The landmark gift, which marks the largest in VSL’s history, was officially announced at the 2012 Villanova Sports and Entertainment Law Journal Symposium. Headlined and conceived by Moorad, the event featured an all-star panel of baseball experts including Oakland A’s General Manager Billy Beane, subject of the book and Oscar-nominated film Moneyball, former New York Mets General Manager and current San Diego Padres Senior Vice President Omar Minaya and MSNBC President Phil Griffin, discussing the impact of “Moneyball” on sports and business. Former Pennsylvania Governor Edward G. Rendell VSL ’68 moderated.
The Jeffrey S. Moorad Center for the Study of Sports Law, named in recognition of Moorad’s leadership gift, is one of only a handful of institutes in the U.S. dedicated to the study of sports law. VSL’s new Center will prepare students for careers in amateur and professional sports through rigorous academic study, innovative programs, internship opportunities, scholarship and research.
Here’s the full story.
Professor Neil H. Buchanan has posted a defense of law schools against recent criticisms on Dorf on Law. He writes, "Some of the complaints about law schools are clearly meritorious -- for example, it is impossible to make a case in favor of allowing law schools to lie about their employment statistics -- but many others are downright silly. My overall reaction to the public discussion is that far too many people are launching broad, baseless, ill-informed attacks on an institution that is both fundamentally well designed and essential to the maintenance of a civilized society."
He declares, "It seems plausible to imagine that the current media hype itself is ultimately driven by little more than the state of the economy." "Potential law students are, for very good reasons, focused on the future, and they have every incentive to think about whether a law degree will be good for them. If the economy improves for lawyers, then it is hard to imagine that applications will not rise in response."
He is concerned that these complaints "might have the effect of reducing the number of people who are potentially interested in attending law school." He also worries that "long-term damage is being done to the notion of the legal academy as an academic institution. Even if future applicants are not being permanently put off of legal education, the public at large -- and especially political players, many of whom are generally hostile to academic inquiry and intellectual freedom -- is being inundated with claims that legal academics are fundamentally out of touch and wasting time and money." He concludes: "In short, The New York Times and other news sources are doing serious damage to the long-term prospects of the legal academy, and ultimately to society as a whole. That damage, however goes far beyond the possibility that our future client pool is being drained on the basis of over-hyped claims. The future of intellectual inquiry is at stake, and there is good reason to fear that the damage being done now will have serious consequences well into the future."
I disagree with Professor Buchanan that for the most part there is nothing wrong with legal education. I agree that legal education is fundamental to the maintenance of a civilized society, but I do not view our current legal educational system as fundamentally well designed for today on both the structural level and how we teach. While the economic crisis has made things worse, there is much wrong with legal education that is not due to a bad economy. As Professor Brian Tamanaha has warned: "Law schools are caught in the grip of two separate, reinforcing declines that portend a severe contraction in the immediate future: fewer people are taking the LSAT test, and fewer people who take the test go on to apply to law school. (It is possible that a sharp decline in the former will lead to a rise in the latter, but that has not happened so far.) A painful dose of economic discipline for law schools is just around the corner."
While I disagree with Professor Buchanan's main thesis, I think that many of the attacks on legal education have been broad, baseless, and ill-informed. I do not worry so much, as Professor Buchanan does, that these attacks will affect the notion of the legal academy as an academic institution. Rather, I am worried how these attacks will affect the legal education reform movement. The hyperbole of the scam bloggers makes it easy to ignore the fact that there is some truth in what they are saying. For example, Paul Campos has posted a reply to Professor Buchanan's post. Campos declares that "He sounds, in short, like a parody of an arrogant, clueless law professor, talking about stuff he actually doesn't know anything about, while appealing to the self-evident truth of his assertions." Other words he uses to describe Buchanan and his ideas include bluster, arrogant, clueless, audacious, diatribe, dysfunctional, etc. With these kinds of attacks on legal education, is it any wonder that many in the academy aren't taking the problems in legal education seriously?
We need a reasoned discussion on the crises facing legal education, and we need to do it in a civilized manner. A person will never be convinced by the language that the scam bloggers and their followers are employing. People do not react well to personal attacks. Let's tone down the rhetoric and eliminate the personal attacks, and get down to the business of identifying and solving legal education's problems.
"All a poet today can do is warn." Wilfred Owen (English poet killed in World War I)
By Professors Bradley T. Borden (Brooklyn) and Robert J. Rhee (Maryland), available at 63 S.C. L. Rev. 1 (2011) and here on SSRN. From the abstract:
This Article introduces the concept of the law school firm. The concept calls for law schools to establish affiliated law firms. The affiliation would provide opportunities for students, faculty, and attorneys to collaborate and share resources to teach, research, write, serve clients, and influence the development of law and policy. Based loosely on the medical school model, the law school firm will help bridge the gap between law schools and the practice of law.