Synopsis: What to do with law school graduates, and how to restore the quality of "lawyering."

America has become schizophrenic about lawyers and the legal process. One of the most widely watched television programs was the reading of the jury verdict in the O. J. Simpson criminal trial. "The People's Court" had great television ratings. John Grisham's books consistently reach the best seller list. There is a public fascination about lawyers and the things that lawyers do. We have national holidays honoring lawyers, such as Abraham Lincoln, and national monuments paying homage to lawyers, such as Thomas Jefferson. We write Broadway musicals in which lawyers like John Adams are portrayed as national heros.

Yet, hardly a night goes by in which Jay Leno's monologue does not include a joke about lawyers, followed by uproarious laughter from the audience. National opinion polls rank lawyers near the bottom in esteem, somewhere around used car salesmen and congressmen. Shakespeare is frequently quoted: "The first thing we do is kill all the lawyers."1 The proposed solution for eliminating medical malpractice suits and large product liability awards is to eliminate or curtail lawyers' fees. Between 1974 and 1994, ethical complaints against lawyers and attorney disbarments in Missouri rose 300 percent.2 Lawyers are seen as greedy and dishonest; they are viewed as people to be avoided at virtually all costs.

Even within the profession there is great disquiet. We bemoan the loss of professionalism. Our bar associations create codes of conduct where the Rules of Professional Conduct used to be more than adequate.3 Polls among lawyers recommend that bar associations pay for television advertisements trying to improve the image of lawyers. We criticize our law schools for the poor quality of lawyers being turned loose on the public without adequate preparation. The movement today is to try to have law schools train people to be competent lawyers, a task that law schools have never been asked to do before.4

Near the end of this 20th century, the reality is that we lawyers, and the entire legal profession, are in trouble. The unfortunate part of the trouble is that we lawyers have let it happen. But we also have the means and ability to solve the problem. As Pogo once said, "We have met the enemy, and he is us."

The problem is that far too many lawyers are allowed to practice without adequate training and preparation. We lawyers blame the law schools, when the real problem is not the law schools. We, as members of the profession, have let the decline of the quality of lawyers take place after law school graduation.

Let me take you on a little historical walk and let us see what has happened to the profession in the United States.

In colonial times, apprenticeship was the means for admission to the bar. The early colonial lawyers were, for the most part, trained in England. Before the establishment of the United States, the courts were English courts or colonial courts which were allowed to exist by reason of a charter from the Crown. The English system was based on the Inns of Court. I suspect most of us will remember from our legal history courses in law school the composition of the Queen's Court or Lincoln's Inn.

With the establishment of independent states, a national government, and a federal court system, the traditional means of admission to the bar remained apprenticeship. When the "teacher" was satisfied that the "apprentice" had learned enough, the "apprentice" was introduced to the court, and "admitted." This method produced the likes of Thomas Jefferson, John Adams, John Quincy Adams, Daniel Webster, Joseph Story, and John Marshall. The concept of honor and justice flourished. The obligation of an attorney to the profession is now epitomized by the colonial lawyer defending the British soldiers accused of killing American colonists.

By the Jacksonian era, things became democratized. Dislike and distrust for lawyers, and everything that smacked of elitism, began to flower. Admission to the bar was up to the whim of the judges, and there were no formal educational or training requirements. Only nine states required any kind of study before admission.5 The "examinations" were generally given orally by the local judges, with complete discretion as to whether the "applicant" passed or failed. The practice of law was democratized, and virtually anyone with a connection to a judge could be admitted to the bar. In some states, legislation was passed abolishing all educational or training requirements, allowing any adult to practice law. And by the 1860s, professional standards had become virtually nonexistent.

It was into this state of chaos that professional associations arose to try to improve the quality of justice and bring some order to the quality of lawyering. This movement was almost exclusively the arena of voluntary bar associations. The first professional associations were in New York (1870), Cincinnati (1872), Cleveland and New Hampshire (1873), and St. Louis, Chicago, the District of Columbia, and Iowa (1874). Generally, the stated purpose of all of these associations was to improve the quality of the profession and lawyers. Frequently the principal purpose of these associations was to begin the process of "disbarring" the most incompetent of the incompetent. Membership in these associations was generally restricted by a supermajority vote of the members. Slowly, but surely, the professional associations began to clean their own houses.

It is important to look at the composition of the "legal profession." There are, by best estimates, some 900,000 "lawyers" licensed in the United States. Of these, roughly two-thirds are actually engaged in the practice of law, that is, doing the kinds of things that we think of as lawyering, such as judges, law school professors, government lawyers, corporate counsel, and private practitioners.6 While we have seen the growth of the "large" law firm, the percentage of lawyers practicing in "large" law firms has not increased when compared to the total number of lawyers in practice.7

Traditionally, a number of law school graduates never intend to practice law, choosing instead to go into industry or some other field. In more recent times, the number of law school graduates who do not engage in the active practice has increased because of the economic reality that many cannot make a living or pay the expenses of maintaining a law office.

In England and colonial times, law schools were the Inns of Court. Graduates of the Inns were not expected to be able to immediately enter the practice without supervision. It is only since the end of World War II that law school graduates were allowed, on practical grounds, to start their own practice immediately after passing the bar examination.

Law schools never expected to produce a working model of a lawyer. Law schools were designed to train the student to "think like a lawyer." Before the multistate bar examination, bar examinations did not have a right or wrong answer. The answers were reviewed to see if the applicant could analyze the questions, dissect the issues, and address the problems in a lawyer- like manner.

Law schools had enough to do with teaching the fundamentals of contracts, torts, equity, remedies, constitutional law, procedure, tax, and the host of other areas with which the general practitioner would need some semblance of familiarity. In three years, there was barely enough time to squeeze in all of the essential courses. Everyone understood that law school was the beginning of the educational process, not the end of it.

In fact, it is only in recent years that law schools have been expected to prepare the student more completely for the full practice, and to do so within the same three-year regimen. The reason for this growing expectation is due, in significant part, to the fact that law schools are the first gate keepers to the "profession." When the number of law school graduates began to overwhelm the number of openings in established legal offices, the profession became unable to assimilate the new lawyers in the same manner and degree that it had historically and traditionally done.

Law schools have traditionally claimed that they are not training lawyers to practice law, but are merely training them to think like lawyers. But in recent years, in response to the demands of the profession, particularly the American Bar Association and its power to accredit law schools, law schools have given up their historical role in the profession and have tried to squeeze in "clinical" programs. The inclusion of the "clinical" programs, for instance, comes at the cost of sacrificing time formerly given to the traditional curriculum. I am suggesting that this has been a tragic mistake, both on the part of the law schools and on the part of the profession.

A suggestion has been made to extend the law school education to a four-year program, to allow for the added time necessary to provide "clinical" programs in addition to the traditional curriculum. Law schools have successfully fought this effort for very simple reasons.

We must first remember that many law schools are profit centers for the university of which they are a part. Law schools can charge virtually any tuition they want. Law schools have no incentive for limiting their enrollment. They want to accept as many students as there are desks and chairs. There has been a significant enlargement of law schools over the past 30 years to accommodate more and more students. For instance, in 1965 there were 136 ABA-accredited law schools, with an enrollment of 56,510 students. By 1991, that number had grown to 176 ABA accredited law schools with an enrollment of 129,580. In 26 years, the enrollment in law schools had more than doubled.8

The American Bar Association accreditation process requires law schools to adopt an affirmative action program to include more minority students. Many of these minorities, and many non-minorities, do not have the financial wherewithal to afford law school, so financial aid packages, mostly student loans, are made available.

The fact is that too few students could afford a fourth year of law school, and enrollment would wither.

The profession must ask two critical questions regarding law schools. The first question that must be addressed is what kind of education should law schools be providing, given that law school is going to be only three years in length? The second question to be considered is what is the upper limit of financial cost going to be for law school, so that its graduates will be able to start the second part of their legal education without being more concerned with paying off a huge debt than with serving the public?

Bar associations were created to improve the quality of lawyers. A reading of the histories of the older associations illustrates that the founders were concerned about the quality of the lawyering in their communities. While the number and membership of voluntary bar associations grew until approximately 1970, in more recent years the percentage of lawyers belonging to voluntary bars has declined. To some extent the introduction of the integrated bar, or mandatory bar, has had some effect on the membership of the voluntary bar. Lawyers do not have the choice of whether to belong to the mandatory state bar, and bar dues continue to escalate. Membership benefits of voluntary bars become more crucial in deciding whether to join. Continuing legal education, group medical or health plans, and group purchasing plans are of more interest to today's lawyers than participating in civic projects.

The number of specialty bars, based on areas of practice, gender, or race, are springing up around the country, reflecting a desire to find a voluntary bar which serves the particular purpose of the individual lawyer.

At the same time, membership in voluntary bar associations is declining. Some associations, like the American Bar Association, have seen a decline in both real numbers and the percentage of lawyers eligible for membership. Some statistics indicate that the membership of the American Medical Association is rapidly approaching that of the American Bar Association. Other associations have seen a static membership, but a decline in the percentage of members compared to the total number of lawyers eligible for membership. Voluntary bar associations are struggling with an identity crisis and seeking to find their place in the profession.

Bar associations must retake the lead in the training and preparation of lawyers for practice. Bar associations must remember the reason for their creation. Most of the early voluntary bars were created as a means for the elimination of the most incompetent of lawyers in the community. Disbarment proceedings were initiated by bar associations, not by the courts or state disciplinary bodies. It was, and still is, the obligation of lawyers to ensure that the quality of lawyering in the community, the state, and the nation is at a level needed for the justice system to function for the betterment of the community and the country. No one else can do it properly, and if bar associations do not take the lead, others will.

Practically every law school admissions department has an office of financial assistance. Not all students admitted to a law school can finance the ever-increasing expense out of their own funds or those of their family. Scholarships and grants are in limited supply, and so the next easiest way to finance a law school education is through student loans. If you want to know how prevalent student loans are, ask any graduating senior how much in student loans he or she has to pay off after graduation. Student loans are so easy to obtain that many students use them for more than just tuition and books. Many students use the loans to finance basic living expenses during law school as well.

I would suggest one relatively simple requirement as a part of every law school admission process, as a part of the solution to the economic problem. My suggestion is that a "truth in lending" concept be required to be implemented for every law school. It should be a prerequisite that every law school truthfully advise applicants for admission of the employment rate of its graduates. There is the perhaps somewhat apocryphal story of the typical placement office as to how it determines the number of its graduates who have found employment. It first counts the number of all of its seniors who have jobs at graduation. It then counts the number of its alumni who are still in contact with the placement office a year, two years, and three years after graduation. When a graduate stops contacting the placement office, the office assumes that the graduate has a job in the legal profession. The weakness of this method is that most of the people who have not found a job in the legal field after three or four years are forced into some other vocation or occupation, and they abandon the practice of law. The true number of law graduates who eventually find employment or who stay in the practice is probably unknown and unknowable.

A more truthful way of advising the incoming freshmen of their employment opportunities is to tell them how many of the law school's graduating seniors have jobs in the legal profession at the time of graduation. One estimate of this number is roughly 50 to 60 percent. This means that, giving consideration for the flunk-out and drop-out rates and the "did not pass the bar" rate, perhaps less than 50 percent of the starting freshmen will have jobs in the legal profession upon graduation.

Once the applicant realizes the chances against a successful legal career, he or she can make a more intelligent decision about "student aid" and "student loans."

The crushing debt piled upon the graduating senior limits the opportunities and options available to them. A $40,000 loan on which payments have to be made soon after graduation requires the graduate to seek a comparatively higher paying job. Starting out in one's own practice is courting financial disaster and adds to the risk of unskilled and unqualified lawyers being foisted upon the unsuspecting public. The need to "turn a buck" forces lawyers to file lawsuits that should not be filed in the hope of a quick settlement and a fee. The fiscal needs provide an incentive for a lawyer to promise an impossibly optimistic result in order to get a client. It encourages lawyers to take on too many clients, without allowing adequate time to serve each of them properly.

So what do we do about the student who is frightened by the poor job prospects, but who may well be the next Abraham Lincoln? I will put aside for the moment the fact that there do not seem to be any tests or examinations that will tell at the outset who will make a great lawyer. For the time being, let it be said that most law school admission officers seem to think that the LSAT does give a very good indication of what a student will do during the first year of law school, but it gives no glimpses of success or failure beyond the first year. It seems that only the actual participation in the second and third years really tests the ability of law school students.9

In this country, which abhors the concept that only the rich should be admitted into the professions, the financial ability of the law student cannot be a principal factor in determining admission to law school. The law schools must have the financial means to provide scholarships and grants for students in financial need. This means massive endowment programs or smaller classes, or perhaps both. We may be tempted to say smaller classes. It would certainly eliminate the seeming overabundance of new lawyers. More and more state boards of law examiners are announcing in advance that only a certain percentage of people taking the bar examination will receive passing grades. The nation's boards of law examiners are taking the first step in reducing the percentage of lawyers compared to the total population of the country. The law schools must help also, or face the inevitable fact that more and more of their graduates will fail the bar examination.10

There does not seem to be any empirical data to test whether all of the nation's law schools have the financial ability to provide for all of the students in financial need. There is an assumption that they do not. Even if the total enrollment were reduced by 25 percent, there would likely still be a need for scholarships and grants for the remainder.

Law schools have conducted massive capital campaign fund raising drives to build new law schools. In Missouri, both the University of Missouri at Columbia and Washington University in St. Louis built new law schools in response to the American Bar Association's threat to withdraw their accreditation. If we are to limit the expansion of enrollment, the money being utilized to build new facilities should be redirected to financial aid.

State-supported law schools should have additional public appropriations for student grants and scholarships. Private law schools need greater support from their alumni for scholarship and grant endowments. A great lawyer is as much a tribute to the person who endows a scholarship as a classroom or building which bears the contributor's name.

Most bar foundations have provisions for scholarships to area law schools. With the declining funding for legal services organizations, much of this scholarship money is being diverted to providing funding for the legal service corporations. Therefore, greater giving has to be done by the existing practitioners through their sources of funds. Let me make two proposals.

Assuming that we all believe that the legal service corporations are vital to the nation and the profession, we should consider a "tax" on all lawyers to provide the needed funding for the corporations. Many states have mandatory pro bono provisions as a means of increasing the lawyers available to take care of the needs of people who are unable to afford lawyers. We should consider universal pro bono, to be directed by the legal services corporations, with an option to "buy out." But we must remember that many lawyers already feel that they do a significant amount of pro bono work. Sometimes a case does not start out that way, but when a client takes a walk on the fee, or the work becomes such that the client has no way of paying for the work, the result is the same. The lawyer does the work but does not get paid for it. Adding an additional layer of required work without pay is a controversial idea but one that must be addressed.

The average amount of annual dues to the supreme court or mandatory bar usually includes the cost for maintaining the disciplinary offices and other functions of the profession. Few lawyers are heard to say that they are leaving the profession because the annual registration fee is too high. Those who do say so are retiring from the active practice anyway, for reasons unrelated to the economics of the practice. Adding another $100 to the annual registration fee in Missouri, for instance, would provide an additional $1,900,000 to the legal service corporation budgets in the state. It would free up bar foundation money for scholarships and grants.

For almost 200 years, lawyers in America were trained by "reading" or studying in the offices of a practitioner before being admitted to the actual practice on their own. Many states currently provide for "student practice" in some form. Many bar associations are setting up "mentoring" projects to assist younger lawyers who do not know enough to be allowed to practice on their own. As a profession, we are rediscovering the importance of "interning" for lawyers.

We may be the only profession in America, and perhaps the only group of lawyers in the world, which does not require some form of internship or apprenticeship for the young or new members of the profession. Apprenticeship or internship should be a required element for licensure.

There are two objections which traditionally have been raised to internships. The first objection is that it would be too difficult financially for new lawyers, who would be required to work for lower wages. But many new lawyers currently are getting no wages. The monumental, and in some ways monstrous, salaries paid by big law firms to first-year associates are coming to an end. Many lawyers cannot afford to pay the salaries of the big firms. Even the big firms are not hiring as many new lawyers as they did in the past, for a number of reasons.11 The second objection is the question of the quality of mentoring or internship. This could be solved with relative ease.

We need to remember that we have, unintentionally perhaps, begun to make the mistake of the medical profession. We are becoming a profession of specialists. The so-called general practice lawyer is a thing more in our memory than in reality. Just as we do not have certification for specialists in the legal profession,12 there are no criteria for what a general practitioner should be qualified to do. Some take the position that if a practice is concentrated in more than three areas, the lawyer is a general practitioner. Others take the position that if the practice excludes no more than three areas, the lawyer is a general practitioner. At the same time, more and more lawyers are concentrating their area of practice in a relatively narrow field.

Standards for internships must be established. We set standards for accreditation of law schools. We set standards for the courses that are to be tested on bar examinations. The establishment of standards for internships may be a bit complicated, but far from impossible. For instance, let me pose the following hypothetical for purposes of discussion. For an internship in trial practice, the requirements could include the preparation of at least three petitions, two dispositive motions, three sets of interrogatories, and three responsive pleadings, in addition to the taking of two depositions, second chairing two trials, and first chairing one trial. An internship in estate planning would include the preparation of three wills and two inter vivos trusts, as well as the completion of two probate estates. All of the work would have to be under the supervision of a licensed attorney.

And where are we going to find all of these supervising attorneys? There are plenty of them. The shortage is not now, and never has been, jobs and positions. The shortage is positions that the profession can economically afford to fill. Our state prosecutors could well use a few extra attorneys in the office. The public defenders' offices are woefully understaffed. Legal services corporations would love to have more lawyers. Our trial level judges would appreciate having a law clerk. Corporate legal offices would relish the opportunity to have lawyers available. For those practicing lawyers who may not have enough work to need an extra set of hands, consider the possibility of a small group of solo practitioners sharing an intern. The problem for all of these has been the cost of hiring the new lawyer at "competitive" salaries.

The best estimate as to the number of lawyers going "bare," without malpractice insurance, is about 50 percent. Much of the problem harkens back to the days when most of the major carriers abandoned the market. But then bar associations rose to the challenge, and the birth of bar-sponsored or bar-controlled insurance companies took place.

Many state bar associations have "client security funds" from which the claims of clients who have been financially injured by lawyers are, in part, satisfied. While laudable, these funds have never been large enough to protect the public from the incompetence or malpractice of the uninsured lawyers. Generally they were created as an attempt to lessen the hardships on clients who were harmed by lawyers licensed in and by the state.

Mandatory malpractice insurance is a win-win situation. First, it would be a statement by the profession that the public will be protected from the negligence of their lawyers. Secondly, it would ensure that every lawyer makes provision for protecting the client from the lawyer's malfeasance. The concern expressed by some is that the added expense of malpractice insurance premiums would impose too much of a burden on the young lawyer. My response is to ask who is to bear the economic burden of allowing inexperienced or incompetent lawyers to perpetrate harm on the general public? If the legal profession is dedicated to providing adequate legal services to the general public, then it must ensure that the lawyers licensed are prepared to ensure the competency of the services provided.

The fear has been expressed that younger lawyers would be targeted for higher premiums. The statistical data belies this fear. Based on the figures available, younger lawyers do not have a higher percentage of claims made against them.13 Informal conversations with legal malpractice carriers indicate that a mandatory insurance requirement would not be met with opposition. A carrier who is required to accept all applications would be under no greater constraint than exists currently. Certainly we all know by now that certain areas of law generate more claims and lawsuits. There would be no change in applying surcharges on lawyers who practice in high risk areas of law.

There would also be an additional benefit. Oregon has initiated a mandatory malpractice insurance program. The program generates enough additional revenue to initiate programs designed to assist lawyers in trouble.14 This would add to increasing the level of competence for all of the lawyers.

We also need to rethink the function and value of bar examinations. The initial purpose of bar examinations was to test the ability of the applicant to "think like a lawyer." There generally is no "right" answer to a bar examination question. Different lawyers will come to different conclusions on a given set of facts. The purpose of the examination is to see if the applicant's analytical skills are adequate.

The multistate bar examination is a different animal. Multiple choice answers to see which are the "most correct" or least wrong really test nothing but what the student has retained from class. But the law changes, and what would be a "correct" answer today will be an incorrect answer tomorrow, or whenever the legislature or Supreme Court decide that the old answer is not good for the public.

One of the original purposes of the multistate examination was to approach a national bar examination, so that a lawyer, once licensed, could practice in any state. Given the exigencies of the various states of the union, that laudable goal will not likely occur during our lifetime, if at all. There are serious questions as to whether the national license would have validity except perhaps in the national or federal courts.15 Even the issue of the ethics portion of the multistate examination presupposes that all states have adopted some form of the American Bar Association Model Code.16 The end result is that the multistate bar examination has taken time away from the effectiveness of the bar examination. It should be seriously reexamined if not eradicated completely.

For a number of years, I was amongst the multitudes who criticized my law school for what appeared to be the declining quality of its product. The graduates of today were simply not as good as my classmates. That may well still be true. The reality is that the profession is not what it used to be, for better or worse. We cannot properly assimilate the new lawyers into the profession. When we started practicing, there were older and wiser lawyers and judges who would and could take the time to help us. Everyone knew that we had only completed the first part of our legal education when we graduated. People looked up to lawyers. Being a lawyer was something good.

As the old saying goes, "If it ain't broke, don't fix it." Well, the practice of law and the profession "ain't" necessarily "broke," but it needs a lot of maintenance work. It is incumbent upon all of us to fix it. If we don't fix it, who will? There is plenty of work to do.

1 They quote from Shakespeare's Second Part of King Henry VI, Act IV, Scene II. "The first thing we do, let's kill all the lawyers." But it is important to remember that these words were spoken by Jack Cade and a band of anarchists intent on destroying England, and on establishing a dictatorship. The same men who wanted to "kill all the lawyers" then hanged a man because he was able to read and write and was, therefore, a threat to the anarchists.

2 St. Louis Daily Record, December 26, 1995.

3 It is interesting to note that conduct that used to be forbidden under the old Code of Professional Responsibility is now permitted under the Rules of Professional Conduct. For instance, the prohibition in the Code of Professional Responsibility against threatening criminal prosecution in order to gain some advantage in a civil action (DR 7-106(A) no longer appears in the Rules of Professional Conduct.

4 The American Bar Association Task Force on Law Schools and the Profession in 1992 recommended increasing the opportunity for actual practice experience during law school.

5 R. B. Stevens, Law School; Legal Education in America From the 1850s to the 1980s. (1983).

6 1991 Supplement to the Lawyer Statistical Report published by the American Bar Foundation.

7 Large law firms used to be five or more lawyers. Now the definition of a large law firm seems to be 25 or more.

8 Legal Education and Professional Development - An Educational Continuum, Pg. 112. American Bar Association, 1992.

9 And then there is the old saying, "The A students write the law books, the B students teach, and the C students go out and make the money practicing." Does the highest grade in law school guarantee the quality of the lawyer in practice? But that is a debate for another day.

10 Some law schools question the validity of the bar examination and are urging that states accept a graduate of their school as evidence of proficiency or ability. This argument has so far found little support. The bar examination tests not only the individual's ability, but also the law school's ability to prepare the student for the bar exam. The bar examination is supposedly designed to test whether the student can "think like a lawyer."

11 Many corporate clients are no longer willing to pay the extra fee for a junior associate to sit in on a deposition. Law firms are forced to cut back on the type of work that was previously part of a new lawyer's training at the client's expense. The percentage of new hires is being reduced all over the nation.

12 Except in some states which have certification of specialists, generally lawyers may only state that their practice is limited to certain areas.

13 Part of this may relate to the assumption that younger lawyers may not have the larger client who would suffer a more serious financial loss.

14 Oregon's program has been in existence since 1978. It applies to all lawyers in private practice. Approximately 63% of Oregon's licensed lawyers participate in the fund and are assessed $2,100 per year for basic coverage. In addition to providing malpractice coverage, the fund also operates the State Bar Lawyer's Assistance Program and an extensive malpractice prevention program.

15 Most of our district courts allow admission pro haec vice. Many allow admission if the lawyer is licensed in some other federal court, or in a state, under some limitations. Residence within the state where the district court presides has been ruled an impermissible requirement. We are closer to a national federal license than we are ever likely to be to a national state court license.

16 I will put aside for the time being whether the ABA Model Code has worked well for the profession. It had the effect of making ethical conduct that was unethical under the older model rules. The Department of Justice has taken the position that Assistant United States Attorneys are not to consider themselves bound by the states' canons of ethics.

Mr. Sestric is a principal in the Sestric Law Firm. He received his J.D. from the University of Missouri-Columbia, and his undergraduate degree from Georgetown University. He is a member of the American Bar Association, a former member of the Board of Governors of The Missouri Bar, and a former president of The Bar Association of Metropolitan St. Louis.

1997, Anthony J. Sestric

JOURNAL OF THE MISSOURI BAR
Volume 53 - No.4 - July-August 1997