…Is really the most charitable thing I can say about the State Bar of California’s Task Force on Admissions Regulation Reform (Task Force), which recently issued its recommendations for requiring “preadmission competency skills training” for lawyers. Proposed changes to the licensing requirements include:
- 15 units of competency skills training during law school
- 50 hours of legal services devoted to pro bono or modest means clients, either pre- or post-admission
- 10 extra hours of post-admission Minimum Continuing Legal Education, specifically focused on competency skills training
I’ve already opined on the futility of mandatory pro bon/low bono requirements, so the Task Force’s decision to copy New York’s new requirements is an inauspicious start. In fact, the Task Force managed to produce the most conservative response to mass lawyer unemployment of any state bar thus far:
We call for no radical change in legal education as it exists today. (2)
We do not embrace or endorse the idea that law schools are somehow “broken.”12 [citing Failing Law Schools] We take that thesis into account only as a marker of the vigorous debate about change now underway within the academy itself, as it is in the profession. (4)
Long ago, when American lawyers entered the legal profession by reading law in the office of a practicing lawyer, as Abraham Lincoln did, the training regimen for new lawyers was integral to law practice. That venerable tradition has long since disappeared, never to return, and we do not propose to try. (18)
I doubt it’s in the Task Force’s mandate to advocate sweeping changes to lawyer licensing, but even the ABA’s Task Force on the Future of Legal Education appears more open-minded. The Task Force never discusses tuition increases, the state’s defunded and expensive public law schools, the government’s lending program that enables just about anyone to go to law school, or why California’s state-accredited, unaccredited, and correspondence law schools all charge significantly less than its ABA law schools do.
I’m not against skills training. Neither are law schools, which are spending more and more money on staff to teach it. You can imagine where the money comes from. The Task Force believes that due to (1) “the economic climate,” and (2) “client demands for trained and sophisticated practitioners fresh out of law school” (page 1), that more people than ever are graduating from law school and starting small and solo practices without any training. Certainly (1) is true.
What’s laughable is the Task Force’s insistence that there’s some kind of legal sector market failure due to lack of skills training, as though more new lawyers would have jobs if they were trained better. The Task Force arrives at this conclusion by basing its foundational assumptions on the Illinois State Bar Association’s Special Committee on the Impact of Law School Debt on the Delivery of Legal Services’ (Special Committee’s) Final Report and Recommendations, which I covered here. The Task Force states:
[W]e are recommending something that is designed to improve the employability of law school graduates. The scarcity of jobs for new lawyers in recent years was not simply a statistical phenomenon, isolated from the issue of employability, and driven purely by macro-economic factors outside of the legal profession. For many years before the recent downturn in the economy, there was widespread concern that the cost of training new lawyers was being foisted onto clients, which played a significant role in driving up legal costs. If, in the future, new lawyers come into the profession more practice-ready than they are today, more jobs will be available and new lawyers will be better equipped to compete for those jobs. Critics of improving competency skills training as too costly overlook this key point. They also fail to consider the role that inadequate practice-readiness among new lawyers has had in contributing to the difficult job market that these lawyers face.44 (14) [Emphases LSTB]
Ever walk into a Starbuck’s and demand a discount because you felt that the cost of training new baristas was being foisted on you and was even playing a significant role in driving up the cost of coffee? No? So where does the Task Force get its novel contribution to political economic thought: the lack-of-practice-readiness theory of lawyer unemployment? Footnote 44 takes us back to page 3 of the Illinois Bar’s Special Committee’s Final Report, which declares:
The problems with the current legal education model go beyond the difficult economic climate. In fact, the Special Committee received testimony that the tight job market facing recent law school graduates may have—at least in part—resulted from the inadequate training of law students for the jobs that are available. The majority of lawyers who testified indicated that new lawyers are not adequately prepared for practice, and that hiring partners have consequently become less willing to hire new lawyers, preferring instead those with a minimum of several years of experience. [Emphasis Original]
In other words, the Task Force subtly bases its argument on the testimony of unnamed hiring partners in a different state who have a clear financial interest in shifting the costs of training their employees off themselves and onto student debtors. These partners also apparently benefit from a buyer’s market where they can choose between experienced practitioners and fresh graduates.
Ri~ght. Sounds like the problem is lack of demand for new lawyers.
Setting aside its insistence that the requirements will be cheap and easy to meet, the Task Force nevertheless fails to recognize that there is no free lawyer training. Even if you make the law students pay for it (with no government subsidy to public law schools), then in normal circumstances they would evaluate whether law school and lawyer skills training would increase their net lifetime incomes before applying. The net income increase comes from clients’ demand for lawyers. Consequently, it’s the clients who ultimately pay for the training, just like in every other industry. The only difference is that in reality, lifetime income information is either unavailable or presented to applicants in a distorted fashion to induce them into applying. Aside from economic depression, this is why new lawyers are not employed.
And what does the Task Force say about student loan debt?
Due to the staggering cost of the education, those who cannot pay for law school on their own or by tapping family wealth are graduating heavily burdened by debt, only to face one of the worst employment markets for recent law graduates in decades. While we in the profession see and are taking steps to respond to the crisis in access to justice,9 the economics of legal education point to another developing crisis, this one more insidious — the emerging crisis in access to legal education. (4) [Emphasis LSTB]
Footnote 9 see-cites the Special Committee’s report, implying that the Task Force concurs with Illinois that lawyers pass their student loan debt onto their clients, twisting education debt (a genuine insidious crisis) into a problem for poor people’s “access to justice.” Thus, the problem isn’t that there are more law schools and law students than jobs (that would mean the system is broken and the Task Force adamantly denies that). Rather, the fear is that student debtors are magically able to force people to pay them money as shown by high student loan default rates. Expensive law schools also deny poor people the opportunity of reducing their lifetime incomes, never work as lawyers, and never really use their legal educations in their careers.
I can see it now:
“Give me your tired, your poor,
Your huddled masses yearning to pay an IBR income surtax to the government for 20 years until ED cancels your Grad PLUS loans and makes you pay income tax on the shortfall.”
By adopting the Illinois Bar’s Special Committee’s dubious reasoning (and unfortunately not its somewhat reasonable conclusions), the Task Force is recommending CalBar set new lawyers up for failure—and making them pay for it.