Burnett, D L Jr --- "Professionalism's Second Wave: A Sampling of Issues Arising within Education" [2005] LegEdDig 58; (2005) 14(2) Legal Education Digest 14

Professionalism’s Second Wave: A Sampling of Issues Arising within Education

D L Burnett Jr

[2005] LegEdDig 58; (2005) 14(2) Legal Education Digest 14

36 U Tol L Rev 19, Fall 2004, pp 19-28

American law schools possess dual identities as graduate schools and professional schools. This creative synthesis has helped American legal education become pre-eminent in the world. Our graduate school identity has enabled faculties to become communities of scholars; encouraged research and teaching informed by knowledge acquired at the boundaries of disciplines; stimulated curricula to embrace context as well as content in the study of law; and challenged students with active learning that includes inquiry, reflection and critical thinking. Our professional school identity has beckoned faculties toward scholarship and service that improve the law and the performance of legal institutions; anchored our curricula in a body of knowledge defining the learned lawyer; and connected our academic enterprise to a public responsibility for adequately preparing students to serve, to seek justice and to safeguard the rule of law.

An applicant with excellent credentials gains admission and enrols. A month later, the director of student services receives an anonymous, detailed note stating that the student has several juvenile offence adjudications, an adult misdemeanour conviction and a serious disciplinary action at his undergraduate institution — all for instances involving theft or fraudulent conduct. No such information appeared in the student’s law school application in response to relevant questions.

A law school’s career services director posts notices of job opportunities and arranges on-campus interviews with all prospective employers who provide the required information and sign a statement of non-discrimination. A faculty member observes one such posting and tells the director that the law firm in question has been sanctioned repeatedly for serious discovery abuses and lack of candour to tribunals. Ironically, all law schools provide formal instruction in professional responsibility, and many combine this anchor course with pervasive coverage of ethical issues throughout the curriculum. But despite these investments in ethical lawyering, the schools may evince a laissez-faire approach to career counselling that allows students to drift toward employment where they may be exposed to bad role models and later find their careers tainted.

A national magazine publishes rankings of law schools, based partly upon factual information but largely upon mail-in reputational surveys. From year to year, a law school has furnished factual information to the magazine upon request; but the dean, convinced that the ranking system is flawed and misleading, has declined to participate in the mail-in survey. Rather, the matter is one of consistency in professional judgment. Should the dean adhere to an earlier determination that these particular rankings lack validity, or should she capitalise upon a perceived short-term advantage for the institution?

The Socratic dialogues, class debates and problem-solving discussions are challenging, and they develop the student’s capacity to ‘think like a lawyer.’ But, aside from the legal writing and research course, there is little opportunity for the student to deepen his learning experience by employing newly developed analytical skills and applying newly acquired doctrinal knowledge to tasks and simulations of work that lawyers really do. The first year of law school cannot achieve every pedagogical goal of legal education, but professionalism receives exceedingly short shrift in the first-year experience of many American law students. Although we want lawyers to develop an ethos of being well prepared and closely attentive to every client’s needs every day, the unspoken but clear message to students in their formative first year is that, in large classes, they can get away with a lack of preparation much of the time.

There are many strategies for addressing this old problem in legal education, but they all require a better faculty-student ratio than now exists at most law schools. Legal education still abides faculty-student ratios that more closely resemble the ratios found in undergraduate education than those found in other graduate or professional disciplines. Until deans, law professors, lawyers, and judges — people who should know something about advocacy — turn their talents to bold, persistent and resolute advocacy for marshalling the resources required for dramatically improved faculty-student ratios, the typical student experience in the first year, and during much of the remaining course of law study, will continue to suffer from the quality compromises compelled by large-group instruction.

A law professor, increasingly discontented with working conditions and compensation, has begun to treat colleagues and staff rudely. They prefer not to serve on committees with him, although they are pointedly aware that he is spending less time in the building than they are, and he is not carrying his share of the law school’s service obligations. He occasionally cancels classes on short notice, or without notice. Students are reluctant to query him in class or to see him after class. At the same time, as every dean knows, bar examiners and supreme courts generally have not increased bar examination passage rates; to the contrary, most passage rates have remained stable, and some actually have declined. Consequently, in some states there is a widening gap between law school graduation rates and first-time bar passage rates. This gap has prompted allegations of lawyer protectionism, together with academic critiques of bar examination writing and grading methodologies. Such critiques have been countered by questions from the bar as to whether law professors are evaluating student performance rigorously enough by reference to a standard of professional competence.

A student learns in her professional responsibility course that lawyers are expected, but not compelled, to provide at least 50 hours per year of donated legal service to persons of modest means or to public interest organisations. Many of her student colleagues, however, dismiss this expectation as political correctness — not something that a debt-burdened young lawyer ought to consider. As she looks around, she finds that the clinical and other volunteer programs at the law school do, indeed, seem to be dominated by students with a social agenda. She concludes that the idea of public service is neither broad-based nor truly universal. This unfortunate outcome illustrates how the narrowness or breadth of public service programs at a law school can serve as an indicator of how seriously the school takes its responsibility to prepare students for the professional obligations they will be expected to fulfill.

Universal public service programs enhance students’ skills and amplify their knowledge of applied doctrine in areas related to their service activities. The service programs also enrich the law school culture of professionalism. They give every student a shared sense of belonging to a professional community, a sense of being part of something greater than oneself. They profoundly demonstrate to every student that his or her law degree carries more meaning than either a graduate school diploma or a certificate of occupational training. This sampling of ‘second wave’ professionalism issues has depicted several contexts in which law students learn about their forthcoming professional obligations from sources other than course readings and classroom discussions. Students astutely observe what is going on around them. They draw inferences from the behaviour of deans, faculty, staff and fellow students.