Less Lawyers = More Injustice

comments 8
Repairing The Systen

Two stories have kept popping up in the legal news the past year. One is the law student debt crisis. http://www.nytimes.com/2015/10/25/opinion/sunday/the-law-school-debt-crisis.html The other is our broken criminal justice system. http://www.theguardian.com/us-news/2015/jul/15/obama-criminal-justice-reform-naacp We need to connect the two discussions.

There are lots of people to blame for the law student debt crisis. One group of culprits is the federal regulators who approved loans to students of “fly-by-night law” schools. Another is the administrators and faculty of traditionally sound schools who became involved in a spending war that drove tuitions—and student debt—higher and higher. There is now a lot of discussion about whether there should be dramatic changes in how we prepare students to become lawyers. That’s a discussion we should have. What alarms me is that so many of the proposed solutions to the crisis assume a world with fewer lawyers http://abovethelaw.com/2015/05/we-would-be-better-off-if-30-law-schools-closed/ Fewer lawyers means more injustice.

Their argument is that the high tuitions have spurred a situation where we now have a large number of unemployed lawyers who are unable pay off their debt. Closing law schools with a history of heavy student debt load will reduce the number of unemployed lawyers and the number of lawyers who have unsustainable debt loads.

But the argument ignores that fact that reducing the number of lawyers would also doom efforts to fix the criminal justice system. http://wrongfulconvictionsblog.org/2013/02/20/why-i-think-the-us-justice-system-is-broken-and-why-its-not-getting-fixed/ It will make it even more broken. Giving criminal defendants access to the services of a competent lawyer is not a total solution to the system’s problems, but it is a necessary part of any serious attempt to solve them.

Nor is closing law schools a solution for the problems of the millions of Americans who cannot afford legal representation in civil matters. Here is a statement by NYU Law School’s Brennan Center detailing how important access to legal services is to families who face foreclosure on their home mortgages. https://www.brennancenter.org/analysis/testimony-task-force-expand-access-civil-legal-services-new-york There are myriad other types of legal problems where access to a competent lawyer is also essential to a just result. And it’s not just the poor and near poor who will be affected by a reduction in the number of lawyers. If supply and demand work as experts tell us they do, reducing the number of lawyers will mean the same number of clients chasing even fewer lawyers. Think what effect that will have on the already sky high fees charged the middle class.

What should we do? We should find ways to connect the lawyers who can’t find jobs with the clients who cannot find lawyers. There are many ways do this. Now the great recession seems to have run its course, state and local governments should hire more public defenders and legal services lawyers. The federal government should institute a program for lawyers based on the successful Teach For America model for teachers. Recent law graduates would be provided free of charge to local legal services and public defender agencies for a year or two where they would refine their skills at the same time they both provided needed services to clients and earned money that could help them address their debt load.

So too law schools and their universities should be required by the AALS to double down on their “loan forgiveness” programs for graduates who go into a public service practice. And foundations could sponsor “start up”programs that help young lawyers establish practices in areas where there is a lawyer shortage. Guaranteeing an income, office expenses, and malpractice costs for a few years would help many young lawyers find a fulfilling career serving Americans who cannot now find lawyers.

But critics are right to point out that it is time to rethink our model of legal education. While we should not force existing AALS-approved schools to close shop, we should encourage them to come to terms with a new era. Tuition was 1500 dollars a year when I went to NYU. Now the number is 57,000. The traditional three year model for legal education should transition into a model calling for two years supplemented by a more robust CLE commitment after graduation and improved opportunities for practicing lawyers to earn LLM degrees in their area of specialization. Third year was my favorite year in law school, but I can’t claim that it was a necessary prerequisite for a license to practice law. A two year J.D. by itself would go a long way in reducing the debt load of new law graduates.

These are my ideas about how to handle an admittedly difficult problem. If you have ideas of your own, I would like to hear them.

8 Comments

  1. David Fielding says

    Beautifully written and perceptive. Also might we consider enhancing the credential of paralegals with a curriculum and licensing scheme that prepares them to handle basic family and landlord tenant law, as well as many consumer issues in a Small Claims court with expanded jurisdiction.

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  2. Allow the value of time and services while providing pro bono legal services to qualify as a charitable contribution that is deductible from gross income on federal tax returns?

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  3. philip meyer says

    Deeply thoughtful, as always. There is no glut of lawyers in many public interest practice areas (including criminal defense and appellate and post-conviction practice). Also, there is a need for lawyers in many rural areas (including Vermont). Your idea of funding a job core for lawyers with loan forgiveness as a side benefit is spot-on.

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  4. *fewer lawyers.

    While I do think the student debt and access to justice crises are interrelated, I think there’s a third crisis that has to be considered: the quality of incoming law students. As the recent Law School Transparency Report shows, an alarming number of schools are now admitting sizable portions of their class that, the statistics suggest, are unlikely to ever pass the bar exam. When entire law schools report bar passage rates between 30 and 50%, I think it’s fair to conclude that there are too many law schools in this country. Propping up law schools that are forced to admit unqualified applicants exacerbates the student debt crisis and will do little to increase access to justice.

    I’m also not sure that the comparison to TFA is apt. The TFA model is built on recruiting high-performing college graduates to high-needs public schools. The training program you propose would likely attract recent graduates unable to secure long-term employment, similar to the bridge programs offered by many law schools. (Also, TFA corps members are not provided “free of charge” to school districts. The schools pay the corps members a regular salary, and they pay TFA a four-to-five figure fee per teacher per year.)

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    • Thanks for your comments. I would agree that schools should not be accepting applicants that have no chance of passing the Bar Exam, though I think I am probably more skeptical than you are about the ability to make that prediction prior to attending any classes. It might make more sense to invite marginal candidates to a pre-school year “test-drive” where they could take a mini-course which which wold allow them to see if they liked law school and the school a chance to judge their chances of success.

      I also am skeptical about your prediction that only “marginal” graduates would be interested in a “Lawyering for Justice” program. My own experience as a Reginald Heber Smith Fellow in the 1970’s makes me think that there are lots of highly qualified recent graduates who would choose to be a legal services lawyer or a public defender if a position were available.

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  5. Chuck Farnsworth says

    I’d suggest that law schools cut their costs by dropping the third year and teaching the second half of the second year like a bar review course, covering all the bar exam subjects in a lecture style. Student debt could be partially forgiven by a Teach for America-type program through DA and PD offices throughout the state, where young lawyers could get early (and perhaps their only) trial experience, handling misdemeanors while working for minimal salaries, say around $50K, for two or three years. Call it a form of national service, maybe “Justice for America.”

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