Monday, September 12, 2022
The Council of the ABA Section of Legal Education and Admissions to the Bar recently added a provision to the accreditation standards that requires all law schools to include professional identity training in their curriculum: "A law school shall provide substantial opportunities to students for: . . . The development of a professional identity." (ABA Standard 303(b)(3)) Interpretation 303-5: "Professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice. Because developing a professional identity requires reflection and growth over time, students should have frequent opportunities for such development during each year of law school and in a variety of courses and co-curricular and professional development activities."
Professor Harmony Decosimo has written a wonderful article that classifies the various approaches to teaching professional identity in law school. Taxonomizing Professional Identity Formation: The Soul of Legal Education. She has taxonomized the field of professional identity formation advanced or employed in U.S. law schools into three dominant approaches named for their primary area of concern: value, wellbeing, and competency. She further divides the value approach into the value-clarification approach and the value-inculcation approach. Because the value approach most closely corresponds to Interpretation 303-5, I am concentrating on this approach in this post.
Professor Decosimo writes about the value-clarification approach: "In theory, the value-clarification approach has, as its goal, the formation of lawyers who are self-reflectively in touch with their own value system or moral compass, and who are able to act with reference to that compass in their professional lives. In other words, the goal is forming lawyers who have a kind of self-aware and deliberate integrity – that is, they know with clarity what their fundamental priorities and values are, and are able to call on them in a variety of circumstances, leading ultimately to harmony between their beliefs and actions across both their personal and professional lives. This approach may be attractive to some, as it avoids any worries about indoctrination or violation of the ethical or moral autonomy of students."
Concerning the value-inculcation approach, she writes: "increasingly more common than value clarification are those substantive value approaches that seek to identify and inculcate a particular set of norms." She adds, "The value-inculcation approach to formation seeks not mere integrity or non-hypocrisy in professional identity, but righteous professional identity." Scholars taking this approach believe that “not all professional identities are created equal.”
There is a wide-spectrum of approaches within the value-inculcation approach. The far end of this approach "identifies external norms or ideals that are less obviously intrinsic to the practice of law and lawyering, but to which lawyering should be subordinate or at the very least, by which it should be significantly informed." She notes that "This kind of ideologically-specific formation is most clearly identifiable and at home in sectarian law schools. At a Catholic law school for instance, this might involve formation with attention to the connections between explicitly Catholic faith commitments and justice."
Decosimo also discusses secular versions of the value-inculcation approach: "secular versions of this approach . . . presuppose commitment to contested political, ethical, and social values, about which reasonable people of good will may disagree, are taking their place alongside religious approaches to formation in both the scholarly literature and law school lecture halls. The clearest case of this is the move to make antiracist or critical race-conscious lawyering a fundamental aspect of professional identity formation efforts." She notes that the ABA has recently "amended its curricular requirements to require that all law schools 'provide education to law students on bias, cross-cultural competency, and racism.”
She points out that "The problem (for some) is that not all approaches to or definitions of cultural competency, racial justice, or even racism, as they relate to education in general or the practice of law and one’s professional identity as a lawyer in particular, are universally accepted or shared. Some, in fact, are deeply contested and have caused significant division in American public life, particularly in the context of education." For example, "Yet the beliefs, political positions, and formative practices likely to be included in antiracist professional identity formation – including implicit bias or privilege testing; acknowledgement of white fragility; affirmation that the legal system exists to create and protect white supremacy, or that any racial inequity is evidence of inherent racism, or that affirmative action is just and necessary – are deeply contested in terms of their validity, in some cases, and educational effectiveness in others." "This became clear, if it was not already, during the comment period prior to the ABA’s adoption of the revisions to 303, when numerous law professors, free speech organizations, and practitioners objected to the revisions, citing concerns over 'institutionalized dogma,' 'intrusion' into the rights of professors on what and how to teach, and the potential coercion of students who might feel compelled to 'voice certain political or ideological views in order to graduate.”
Decosimo declares, "And herein lies a significant potential pitfall to value-centric professional identity formation initiatives: under at least some models, someone gets to decide the specific values into which students will be formed and, in some cases, that faculty will be required (or assumed) to espouse."
She continues: "At institutions that are not sectarian, requiring faculty and students to enthusiastically engage in a formative process that imposes substantive and contested values is deeply problematic. And even more so when there is a claim of neutrality under the guise of vague concepts like 'professionalism.' Rather than bring particular ideologies or interpretations into the light of vigorous debate and rigorous evidentiary standards, it presents them as the accepted and essential premises of a larger syllogism on what it means to be a good lawyer and even a good person."
She adds: "That professional identity formation is so much more personal and intentionally influential a project than, say, the teaching of civil procedure, intensifies this concern. When the goal is formation, there should arguably be heightened sensitivity to indoctrination, heightened sensitivity to the privileging of some substantive views over others, and heightened sensitivity to imposing orthodoxy in a community in a way that might marginalize or exclude minority perspectives, stifle open inquiry, or alienate those who disagree."
She concludes her article: "For many stakeholders, the ABA’s decision to mandate opportunities for professional identity formation provides the open path that has been so desperately sought and needed to change legal education and the profession for the better. But one person’s vision of the good is not always the same as another’s. How to craft and engage in a project that will be at once deeply personal, meaningful, and transformative, while at the same time inclusive, pluralistic, and noncoercive, will be challenging to say the least. This article contends that the best way to start is with transparent examination of the goals of formation, the means to achieving those goals, and the values that are
implicated in the process."
Decosimo has clearly set out the differences between the value-clarification approach and the value-inculcation approach with their respective advantages and disadvantages.
I am an adherent of the value-clarification approach, and, in fact, Decosimo cites my professional identity text book and article as the examples for this approach. (here and here) I believe that law schools should help students synthesize their values with the values, practices, and culture of the American legal profession. I believe that ethical professionals (and critical thinkers) are created by allowing students to develop their own thinking.
This does not mean that there are no limitations within this approach. The limitations are provide by the legal profession, especially the legal profession's standards and rules, particularly those in the Preamble to the ABA's Model Rules of Professional Conduct. (here) I also believe that lawyers should use practical wisdom in conducting their professional lives.
The debate is now open on how American law schools should teach professional identity development. Comments are welcome.