Wednesday, April 21, 2021
I have mentioned several times that the Council of the Section of Legal Education and Admissions to the Bar has proposed a change to Standard 303 that would require law schools to provide substantial opportunities for "the development of professional identity." (here) I anticipate that the Council will take up the matter at their May meeting.
Just in time, Eli Wald has posted an important article on professional identity: Formation Without Identity: Avoiding a Wrong Turn in the Professionalism Movement. The key point of the article is that law schools should teach professional identity in a contextualized manner: "Introducing students to generalized responsibilities and values of the profession such as competence, loyalty, justice, equality, fairness, integrity,and ongoing professional learning cannot serve as a suitable professional foundation because the practice of law is increasingly diverse and contextualized. Different lawyers experience the responsibilities and values of the profession in radically different ways, because attorneys practice in many areas of law with varying organizational structures and serve distinct types of clients with contrasting objectives. In short, although professional identity formation must be grounded in the core responsibilities and values of the profession, it must also acknowledge and introduce students to the immense variety of professional roles, circumstances,and contexts in which professional identity is forged and tested."
I agree with Professor Wald; law schools shouldn't teach professional identity from an abstract, one size fits all point of view. I think he has done an excellent job of dividing the legal profession into different areas and showing how professional identity works in these areas. I also feel that he has shown how law schools can effectively teach professional identity in a contextualized manner.
I go one step further in my book, Developing Your Professional Identity: Creating Your Inner Lawyer (2015, 2020). I advocated that law schools help students develop their individual professional identities. In the Preface I wrote, " I want you to think about who you will be as a lawyer–to consciously develop your professional identity. You need to reflect on how you will fit into the legal world. What are the ethics, practices, and conventions of the legal world? How do I fit my personal morality into this world?" Throughout the book, I created exercises to help students do this.
With the new ABA proposal, legal education stands at a cross-roads. Do we continue to educate students in the abstract manner we have in the past, or do we prepare students for the complicated realities of the 21th century world? Society depends on how the ABA Council and legal educators answer this question.
Critics calling for a law school reform agenda centered around integrating skills and formation of professional identity into the mainstream of legal education may have their day. External pressures, including increasingly competitive practice realities, heightened client sophistication, new technologies, rising stratification within the profession, and attorney under- and unemployment are opening the door for policy entrepreneurs to begin the process of reforming legal education.
At this defining moment of its existence, however, the professionalism movement grounded in the 2007 Carnegie report titled Educating Lawyers is at risk of making a mistake that may thwart its compelling agenda. Rather than base their identity formation schema on the actual professional identity of lawyers, Educating Lawyers and its advocates have accepted the abstract professional identity rhetoric of the organized bar as the basis of their model. This abstract rhetoric, impressive and well-rehearsed as it may be, is divorced from the actual identities of lawyers and therefore cannot adequately ground the identity formation of law students.
Introducing students to generalized values of the profession such as competence, loyalty, justice, equality, fairness, integrity, and ongoing professional learning cannot serve as a suitable professional foundation because the practice of law is increasingly diverse and contextualized. Different lawyers experience the responsibilities of the profession in radically different ways, because attorneys practice in many areas of law with varying organizational structures and serve distinct types of clients with contrasting objectives. Although professional identity formation must be grounded in the core values of the profession, it must also acknowledge and introduce students to the immense variety of professional roles, circumstances, and contexts in which professional identity is forged and tested. In particular, in the face of increasingly competitive practice realities stressing competence, zeal, loyalty to clients, and instrumental reasoning while deemphasizing morality, justice, equality, and the public interest, law schools must instill these core latter commitments of the profession in their students in context.
This article argues that the professionalism movement must avoid developing an integrated model of legal education relying on the abstract professional identity rhetoric of the organized bar and the existing elite law school model. Rather, reform efforts must be centered upon developing a contextual model that considers how actual lawyers experience professional responsibilities and values: that is, how they develop professional identities. Specifically, because most students, graduates of non-elite law schools, are likely to experience such duties and values in circumstances different than their elite counterparts, non-elite law schools must not accept the elite paradigm “as is.” Instead, they must develop a model that introduces their students to the professional challenges they are likely to encounter. Elite law schools, in turn, must revise their traditional client-centered instrumentalist model and commit to inculcating the duties and values of morality, justice, equality, and commitment to the public interest in the contexts in which their students will experience them. The article offers a blueprint for professional identity formation for the majority of non-elite law schools and the mainstream of legal education, as well as for elite law schools.