Paul L. Caron

Wednesday, May 23, 2012

Massachusetts Bar's Advice to Law Schools: Reinvent 3L Year, Be More Like Medical Schools

Beginning the conversation coverMassachusetts Bar Association Task Force on Law, the Economy and Underemployment, Beginning the Conversation (May 17, 2012):

The MBA Task Force on Law, the Economy and Underemployment began its work in November of 2011 with a mission to study factors contributing to the problem of underemployment among recent law school graduates in Massachusetts. ...

In an effort to achieve its mission, the task force members were divided into four sub-committees, assigned to explore and report on: (1) law school curriculum reformation and the creation of a legal residency program; (2) fair disclosure of data by law schools and reasonable expectations by prospective law students; (3) structural obstacles to employment; and (4) avenues to utilize the resource of new law graduates while enhancing their skills for employment. While these topics are by no means an exhaustive list of factors contributing to the current employment picture, the task force used them as a launching point for what it hopes will be a more extended conversation.

The task force initially examined two non-legal professions currently experiencing little to no unemployment among its recent graduates, and compared their teaching methodologies to that of a typical modern law school. The task force found that both the medical and dental school teaching models place considerable emphasis on providing the kinds of hands-on practical training that more fully equips students to begin practicing soon after graduation. In contrast, while law schools offer a certain amount of practical training, largely at the election of the student, the primary concentration of offerings continues to be highly theoretical. The task force recommends that the MBA encourage Massachusetts law schools to reinvent the third year so as to provide greater opportunities for law students to gain practical legal experience and expand opportunities to hone their legal writing skills, beyond that offered through traditional first year legal writing programs.

In order to incentivize law schools to make such a shift, while remaining responsive to the needs of its readers, U.S. News & World Report should be pressed to incorporate a new criterion into its ranking system, based on how well each law school prepared its graduates for actual practice. Finally, the task force recommends that the MBA further explore the concept of a highly supervised legal residency program, which would provide practice-area specific training (such as civil trial law, criminal defense or probate practice training) to third year students and/or recent graduates in their chosen area of legal concentration.

The task force also considered the highly publicized issue of law schools misreporting admissions and employment data. While there have only been two recent examples of law schools supplying false admissions data [Illinois, Villanova], the task force considered whether the sanctions for misreporting are sufficient to deter other law schools from doing the same. As one suggestion to ensure better compliance, the task force recommends that the MBA support legislation, similar in concept to the goals of the Sarbanes-Oxley Act, requiring law school deans and trustees to certify that the data provided by the law school is fair and accurate. With respect to employment data, because of significant changes made recently by the American Bar Association in collecting data from the law schools, it is premature to determine if more must still be done. However, the task force recommends that the MBA further explore alternative sources — rather than the law schools themselves — to provide the critical data upon which prospective law students rely when choosing a law school. At the same time, the task force members did feel that prospective law students bear some responsibility to conduct adequate investigation and adjust their expectations to the economic realities of the legal job market.

It is important to note that the task force did not limit its focus solely to law schools as it explored root causes of underemployment among new lawyers. It also examined existing barriers to employment in Massachusetts, including the oversupply of lawyers caused by the virtual open door bar admission policies existing in Massachusetts. In an effort to reduce these barriers, the task force recommends that the MBA pass a resolution to better regulate the bar passage rate in Massachusetts by tying it to the national average. The task force further recommends that Massachusetts limit reciprocity with lawyers admitted in foreign states and initiate reciprocal pro hac vice rules, particularly with its border states. The task force further suggests that Massachusetts law schools provide incentives for their students to practice in other states, to further expand the footprint of employment opportunities for graduates of the nine existing Massachusetts law schools.

Finally, the task force catalogued a number of resources and opportunities already available to unemployed and underemployed lawyers in Massachusetts in order to fill gaps in legal services’ needs, and to provide recent graduates with experience necessary to increase marketable skills and thereby employment opportunities. While the task force made a number of recommendations to expand existing programs, the task force also supports the creation of certain new programs, including postgraduate clinics and the law school law firm, first proposed by [Tax Prof] Bradley T. Borden and Robert J. Rhee [The Law School Firm, 63 S.C. L. Rev. 1 (2011)].

Together, this report and the recommendations contained herein, represent the beginning of an important conversation to address the dynamic employment prospects faced by current and future law school graduates. Perhaps the most significant of the task force’s recommendations is that the MBA establish a permanent committee to study these and other factors contributing to underemployment among law school graduates with the goal of more closely monitoring evolving employment trends and developing strategies designed to overcome identified obstacles to employment.

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