Thursday, January 28, 2016
With thanks to my colleague and co-blogger, Prof. Tanya Cooper, and her team who edit the CLEA Newsletter, I am cross-posting my article on California's TFARR proposals from the Winter 2015-2016 issue. This is a variation on a theme I've addressed previously on this blog.
In November 2014, the State Bar of California’s Task Force on Admissions Regulatory Reform (“TFARR”) completed twenty-eight months of work considering new standards for admission to the bar. TFARR followed dramatic new standards for admission to the New York bar that require pro bono and increased experiential learning requirements in law school. (New York announced its final, amended rules in December 2015, available through links here.)
TFARR’s policy is to protect the public and to promote the profession by ensuring law students are better prepared to be ethical professionals when they enter practice. TFARR’s proposals do not bind law schools directly. Rather, they would impose requirements for admission to the California bar that would implicate every law student’s experiences and curricular choices in law school. In early 2015, the Bar’s Board of Trustees adopted the report and proposed new rules. They are not effective yet but await approval and enactment from the California Supreme Court.
Complete information and the text of the proposed rules are available at the TFARR pages on the Bar’s site here.
TFARR’s proposed rules include two important enhancements to experiential learning that will affect all law schools in California and any law student in the country who seeks admission to the California bar. First, the proposed standards would require students to complete fifteen academic units of experiential course work. This “practice-based experiential competency training” would include clinics and externships. It would also include typical simulation and “professional skills” courses (now known as “experiential” under recent ABA revisions) as designated by the law schools. TFARR also permits law schools to designate an experiential component within a standard doctrinal course to count toward this training. First year legal research and writing courses will not count toward the fifteen units. (TFARR’s requirement exceeds the new ABA standard that requires students to complete six units of experiential course work, and the ABA rules do not permit schools to carve out a portion of otherwise doctrinal classes as experiential.)
The proposed rules provide for an alternative path to fulfill a portion of the competency training through “apprenticeships” outside of law school curriculum. An apprenticeship is supervised legal work, with or without pay, like traditional judicial or law firm clerkships or summer associate jobs, which meets expressed pedagogical standards. A student could earn up to six units toward the required competency training through an apprenticeship. Every fifty hours working in a qualifying apprenticeship can count as a unit toward the fifteen required for bar purposes, although these would not be academic credits toward law school graduation.
Second, the TFARR admission rules would require applicants to provide fifty hours of supervised pro bono legal services. The new rules aim for increased access to justice, but the principle policy is to provide experience in practice that inculcates virtues and values of public citizenship and ethical lawyering. The TFARR definition for pro bono is very similar to Rule 6.1 of the ABA Model Rules of Professional Conduct. From the proposed requirements:
“Pro bono” means providing or enabling direct delivery of supervised legal services without expectation of compensation from the client other than reimbursement of expenses to
(1) persons of limited means . . . ;
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or
(3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.
Qualifying pro bono experiences can be in law school clinics, field placements in these categories, or other volunteer or internship opportunities with lawyers in these categories. Some questions remain about whether placements with prosecutors or courts would qualify, but the general consensus is that these placements do not qualify because they do not fit the definitions.
Under the proposals, students could earn “dual credit” toward both requirements in law school clinics and qualifying field placements. This provision creates great incentives for students to enroll in experiential courses that satisfy the pro bono requirement simultaneously. This, in turn, creates incentives for law schools to increase capacity in diverse clinical and externship courses.
The proposals create new challenges and opportunities for law schools and collaborating public interest lawyers. Very often, law students earn externship credit with public interest legal services providers, and the new rules may create dramatic new demand for these placements where students can earn dual credit. The rules could increase talent and capacity available for public interest lawyers, but it could also impose new burdens on training and resources to supervise law students who work for a relatively short time. At once, TFARR will require increased collaboration among law schools and legal services providers while deepening the need for more capacity within law schools to provide these experiences.
Some law school administrators, most notably not from California, have leveled reactionary criticism that TFARR rules intrude on law schools’ priorities and pedagogy. A few deans have argued that these new rules would limit law student options and squelch innovation. This criticism runs counter to the experiences at law schools that are preparing for the new standards instead of opposing them. TFARR does not stifle innovative teaching; TFARR promotes it.
Pepperdine University School of Law is the first California law school to adopt the TFARR standards as its own graduation requirements. Beginning with the Class of 2017, students must complete fifty hours of pro bono service and fifteen units of experiential courses. This has spurred efforts to use existing resources and to experiment with new course forms to build internal capacity so that students have sufficient opportunities to complete the requirements across diverse practice areas. In addition to existing clinics, externships, and experiential courses in alternative dispute resolution, Pepperdine has developed new clinics devoted to corporate and policy practice for nonprofits, multidisciplinary practice around gender-based crimes, and tax practice for indigent clients. The law school is experimenting with practicum courses focused on federal criminal practice and on diversionary sentencing and civil legal services for veterans. It is launching new practice-based initiatives for entrepreneurship and tech start-ups. Doctrinal professors are designing practice-based components in substantive courses like torts, ethics, intellectual property, entertainment, and privacy law. Faculty, students and staff are generating pro bono opportunities with collaborators in Los Angeles, rural Southern California, Washington D.C., and abroad in Europe, Asia and Africa.
TFARR reforms would formalize policies that most law schools already tout as aspirational virtues. The new rules would promote professional formation and client-readiness. They are consistent with moves toward formative assessment. In the marketplace of legal education and law practice, the bench and bar have been pushing applied, apprenticeship education back onto law schools for a generation. Law schools have responded in varying degrees of cheerful creativity or reactionary opposition, but with TFARR, and the New York rules before it, the bar has gotten serious as law schools have slowed their responses in the present enrollment and economic crises. These moves are the market signaling to law schools that they must do a better job teaching students how to be ethical, useful professionals, for the sake of justice, the rule of law, the public, and the profession itself.