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Chavkin, D F --- "Experience is the Only Teacher: Meeting the Challenge of the Carnegie Foundation Report" [2007] LegEdDig 48; (2007) 15(3) Legal Education Digest 30

Experience is the Only Teacher: Meeting the Challenge of the Carnegie Foundation Report

D F Chavkin

[2007] LegEdDig 48; (2007) 15(3) Legal Education Digest 30

Wash C L Research P, No 2008-16, pp 2-88

In my clinic courses, professional responsibility is an everyday topic and students grapple throughout their representation of clients with issues of their roles and responsibilities as advocates and advisors and with issues of their future identities as lawyers with broad personal and professional responsibilities. Perhaps most striking in this setting is the nearly daily revelation by students that ethical rules first came alive and really meant something when they became personally responsible for their ethical actions (or inactions) and when their license to practice was on the line.

As I began to embark on the teaching of a freestanding course in legal ethics, four images stuck with me. The first image came from my clinic students who seemed to have no ability to grapple with the ethics issues they began to confront almost as soon as they were assigned clients to represent. Was there something I could do in a classroom course to really help students do more than parrot back the language of the Model Rules?

The second image came from a passage in an article written by the late Andrew S. Watson. His Psychiatry for Lawyers became a standard text. In his article Some Psychological Aspects of Teaching Professional Responsibility, Watson criticised the traditional freestanding ethics course in the following language: [L]awyers of high professional calibre [do not] evolve from Sunday School lessons on proper behaviour ... The aspects of behaviour that dictate how a person shall behave professionally derive from the internalised values that the person has incorporated from prior experiences with other people ... Students need both the ongoing pressure of frequent demands to evaluate professional experiences objectively and then to integrate such learning into mature patterns of behaviour.

The third image, quite canine in character, came from an article written by David Luban and Michael Millemann regarding the status and appreciation of ethics courses within the law school environment. As they described, [T]he legal ethics course is — not to put too fine a point on it — the dog of the curriculum, despised by students, taught by overworked deans or underpaid adjuncts, and generally disregarded by the faculty at large.

I needed therefore to figure out how to avoid a similar fate with my course.

The fourth and final image came from farther afield. It was an image from Woodstock, both real life and in the movies, involving John Sebastian. During his set, Sebastian sang ‘Younger Generation,’ a song that became identified with Sebastian throughout his post-Loving Spoonful solo career. Among the lyrics of that song are the following: ‘And then I’ll know that all I’ve learned, my kid assumes. And all my deepest worries must be his cartoons. And still I’ll try to tell him all the things I’ve done, Relating to what he can do when he becomes a man. And still he’ll stick his fingers in the fan’.

This article describes what I did to integrate those four images and design an ethics course that would address the limitations of the traditional freestanding model.

As I began to prepare to teach a course in Legal Ethics during the spring semester of the 2006-2007 academic year, the rumblings created by the impending release of the Carnegie Foundation Report were already beginning to reverberate within academia generally, within the community of clinical teachers especially, and within my thoughts specifically.

Although I believe that the choice of language was unfortunate, the authors identified three ‘apprenticeships’ for legal education: ‘The first apprenticeship ... intellectual or cognitive, focuses the student on the knowledge and way of thinking of the profession ... The ... second apprenticeship is to the forms of expert practice shared by competent practitioners ... The third apprenticeship ... identity and purpose, introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible’.

Critical for my thinking was the recognition in the Carnegie Foundation Report that experiential learning was necessary to achieve the goals of the second and third apprenticeships. And, while the Report did not mandate real-life client representation as the modality for the ‘values’ apprenticeship, it did acknowledge that, ‘Much of the humanising and inspiring aspects of the law have always resided in actual contact with clients and their needs.’

Probably the central value of lawyers — professional responsibility or legal ethics — did not even become a fixture in American law schools until the Watergate scandal engulfed American society.

One of the characteristics that nearly every individual who was criminally involved in the Watergate cover-up shared, from the President on down, was a legal education.

In response to the scandal, the American Bar Association amended its standards for legal education to require that every law school offer instruction in professional responsibility. This was one of the first times that the accreditation standards actually defined the content of the instruction that law schools had to provide.

Perhaps in part because the teaching of ethics did not rise to the same perceived level of intellectual inquiry as contracts or torts, legal ethics classes tend to be taught by adjunct professors or by professors with lower status than that enjoyed by most classroom teachers. This phenomenon was also facilitated by the reference in an earlier version of the ABA standard that, ‘A law school should involve members of the bench and bar in this instruction.’ This language was an open invitation for law schools to relegate the teaching of legal ethics to outsiders with little quality control or supervision over their teaching.

The result of these two factors is that too often the teaching of ethics proceeds as a disjointed journey through a series of ethics rules without context. Little use is made of simulations or exercises that could help give context and ethics classes too often degenerate into a series of ‘war stories’ told to the younger generation.

The result of this model has been an approach to ethics education that no one seems to believe actually ‘works.’ Students rate ethics courses near the bottom in evaluating how useful law school experiences were in their transition to real-life practice. And, at least as long ago as 1996, the Professionalism Committee of the American Bar Association’s Section of Legal Education and Admission to the Bar criticised the current model of ethics education for failing to adequately prepare graduates for practice. The Committee also identified the need for programs that would support the development of a stronger sense of ethical integrity, civility, and commitment to the profession’s public mission. Despite these criticisms, the current model continues to predominate. The need to explore other approaches is therefore obvious.

Another major event in the recent development of curriculum at American law schools was the issuance of the MacCrate Task Force Report. In 1989, the Section of Legal Education and Admissions to the Bar of the American Bar Association established the Task Force on Law Schools and the Profession: Narrowing the Gap to examine the extent to which law schools were actually preparing students for the profession.

The MacCrate Task Force Report affirmed that education in lawyering skills and professional values should be central to the mission of law schools.

The MacCrate Task Force also made specific recommendations to improve legal education and professional development. Of special significance within the recommendations to enhance ‘professional development during the law school years’ is the following: To be effective, the teaching of lawyering skills and professional values should ordinarily have the following characteristics (1) development of concepts and theories underlying the skills and values being taught; (2) opportunity for students to perform lawyering tasks with appropriate feedback and self-evaluation; (3) reflective evaluation of the students performance by a qualified assessor.

These characteristics define clinical legal education today in American law schools.

Former ABA President Talbot ‘Sandy’ D’Alemberte delivered a speech at the conference that was characterised as having ‘unleashed a thunderbolt criticising the direction [legal education] is taking in the United States.’ D’Alemberte, a former dean at Florida State University College of Law and later president of the University, criticised the failure of law schools to teach students to be lawyers. D’Alemberte also criticised the impact of inadequate skills training in forcing students to choose such jobs as law firm associates because they are not qualified to practice law on graduation.

As a result of forces both within and outside of legal academia, important changes have been made in defining the objectives of American legal education.

As I began to reconceptualise my course in professional responsibility, I was mindful of some of the efforts that had been undertaken previously.

Students know that simulations are an exercise or game and they do not invest themselves the same way they would in real life.

And, as someone who uses simulations in my live-client clinics, I was long ago taught that students are affected by real interviews with real people with real problems at levels that simulated interviews with actors with simulated problems cannot hope to approach.

Although by no means unique, the University of Maryland School of Law helped pioneer a model of integrating theory and practice that is representative of some of the best efforts within legal education to bring the cognitive, practical and formative apprenticeship models together.

Within the experimentation encouraged within this legal theory and practice (LTP) approach, David Luban and Michael Millemann combined a traditional classroom course in ethics with a clinical course in which students would represent real clients.

While I part company with Luban and Millemann on a few issues, the major elements of their model address the critical challenges posed by the authors of the Carnegie Foundation Report. So, if that is the case, why didn’t I simply recreate their model at American University? There are two basic reasons for this.

First, clinical education is limited by the supervision ratios (ordinarily 8:1) that are necessary to ensure competent representation and critical reflection. I was therefore looking to develop a model that would represent a structure in between a clinic and a classroom course — something that might look a little more like ‘clinic light.’

The second reason for departing from the model described by Luban and Millemann is that I did not want this course to substitute for the clinical experience. In this ethics course my primary goal was to use client representation as a way to provide a meaningful context for students to grapple with issues of professional responsibility. To achieve that goal I could demand a much smaller commitment of student credits and time and thereby encourage students to enrol who might otherwise be reluctant to take on the demands of our 7-credit per semester clinical courses.

In contrast to the limitations of the case-dialogue and similar methods of legal instruction, clinical legal education is virtually unlimited in its ability to fulfil the goals of all three models of apprenticeship identified in the Carnegie Foundation Report.

If clinical education is so universally effective, why do we not have clinical law schools? It is not as if that model has not been proposed by influential academics and others. Three factors seem to predominate: tradition, vested interests of existing academics, and cost.

It is difficult to over-emphasise the importance of the real life aspects of clinical education.

Students find that they have much to learn from the clients and they must grapple with a model of representation in most American legal clinics that maximises client autonomy in decision-making.

Another benefit of real-life client clinical experiences relates to motivation.

Real-life client representation may therefore motivate students in ways that even the most enthusiastic and energetic teaching cannot possibly match.

Another significant benefit of live-client representation is the opportunity to identify and answer questions of professional responsibility that directly confront the student’s role as a lawyer.

The authors of the Carnegie Foundation Report also acknowledge the role that clinical legal education can play in providing a necessary bridge to practice.

The question I would then need to address was how to bring the values-based lessons of clinical legal education into a manageable classroom model.

Although the current ABA accreditation standards reflect the dichotomy between ‘skills’ and ‘values’ advanced by the MacCrate Report, many of us do not believe that it is helpful to distinguish between skills and values because of the interrelationship between skills and values. For example, most American professionals view ‘client interviewing’ as a skill that is important for effective lawyers. However, many of us believe that it is not possible to be an ‘effective’ interviewer without also being a ‘responsible’ interviewer. We cannot effectively interview our clients if we are not respectful of our clients; we cannot effectively interview our clients if we are not empathic to our clients; we cannot effectively interview our clients if we are not genuine in our dealings with our clients; and, we cannot effectively interview our clients if we are not concrete in our communications with our clients.

For this reason, many of us blend the concept of ‘skills’ and ‘values’ inseparably together as ‘skillsandvalues.’ However, for the purposes of this article, I will embrace the dichotomy of the MacCrate Report and the ABA accreditation standards and focus on the role of clinical legal education in producing ‘responsible’ lawyers — lawyers with the values necessary for appropriate representation of clients and continued improvement of the profession.

There are at least four types of values, three of which I believe are critical to the future of the profession and to which attention should be given during a student’s clinical experience.

Of the three values that I believe can and should be taught, the first might be described as a ‘private’ value; the second and third might be described as ‘public’ values.

The first type of value focuses on the lawyer-client relationship. It considers how lawyers will demonstrate respect for and communicate effectively with clients, how decisions will be made and implemented, and the role of the lawyer as helper and advisor. It also includes such values as zealous advocacy on behalf of a client.

The second type of value focuses on the lawyer’s relationship to opposing counsel and to judges and other court and administrative agency. This arena includes such values as civility to opposing counsel and candour to tribunals.

The final type of value that I believe can and should be taught to students involves the lawyer’s relationship to the profession. These types of values include the obligation to provide pro bono representation and to consistently strive to improve the profession.

As a clinical teacher who is sometimes described as a glutton for punishment, I wanted to accept the challenge of the Carnegie Foundation Report by building an ‘apprenticeship’ model for practice and formative goals that would look more like the clinical legal education model that I believe is the best model for inculcating skills and values.

The first step was to decide on a model in which students would assist clients. Specifically would they function as lawyers for their clients or as something less? Because, in my experience, the ethics rules only come to life when students are themselves on the ethics hot seat, I decided to implement a model in which students would function as lawyers for some population of clients.

This choice necessarily had other consequences since it would be somewhat jarring to have students engage in the unauthorised practice of law in a course on professional responsibility. That recognition necessitated locating the student practice in a jurisdiction in which second-year spring semester students could practice under the applicable student practice rule. In Maryland, the student practice rule permits students who have completed one-third of their legal education to practice in the state. This rule made certification of my target students a simple process.

The next question to answer would be the focus of the clinical experience.

In my clinic students earn seven credits for their work during the semester. In the fieldwork component they earn four credits and must commit 15-20 hours per week. Since there was no space for fieldwork activities within the two credits allocated to the existing legal ethics course, I knew that I would need to obtain approval for an additional credit from the faculty. However, even with that additional credit, the representation and related tasks would need to be able to be completed within the fifty-six hours associated within the additional credit. How should I spend those hours in the way most likely to yield formative (and, to a lesser extent, practical) benefits for students?

Because I believe that the richest context for student exploration of their professional responsibilities is in the attorney-client relationship, I decided to choose an area of the law that presented rich opportunities for students to consider their role and responsibilities within that relationship. I ultimately chose wills and advance directives for these reasons.

The next issue was to determine how large a student population could be served in this kind of setting. Two competing factors immediately came into play.

The first factor was the need to ensure that clients served by the student attorneys received competent representation. Ensuring quality of representation would require ongoing supervision meetings and constant monitoring of student work product. These supervision meetings needed to take place at least bi-weekly and they needed to last long enough to provide sufficient opportunities for feedback and to guide students through critical reflection of their experiences.

The second factor was the need to serve as many students as possible.

I ultimately opted to limit enrolment to a total of twenty students during the first semester. Since I believe strongly in the benefits of teaming students in live client representation, this meant that I would be working with ten two-person teams, a fairly manageable structure. This also meant that there would be a critical mass for classroom discussions of doctrine and for rounds while keeping the numbers small enough so that all students could participate.

Students would attend class twice each week for one and one-half hours each class. Allocation of those hours would vary considerably from class-to-class between case-dialogue method (focusing on consideration of doctrine embodied in the Model Rules and cases), simulations and exercises (focusing on application of these principles to practice), and rounds (focusing on drawing both practical and formative lessons from the live-client representation).

In this structure, all three academic apprenticeships would be integrated so that students could internalise cognitive, practical and formative lessons. The next question was how to assess students in this model in a way that would measure student development and performance in each of these three apprenticeship areas.

The Carnegie Foundation Report severely criticised the sole reliance in most law school classes on a final examination as the means of assessment and also criticised the lack of meaningful feedback for students. Two important observations were made by the Report authors. First, they noted that, ‘What teachers value — what they deem important and essential for students to learn — can be ascertained most directly by what they assess — what they require students to know and be able to do.’ Second, they answered the question ‘What should be the purpose of assessment in the preparation of legal professionals?’ in the following way: From our observations, we believe that assessment should be understood as a coordinated set of formative practices that, by providing important information about the students’ progress in learning to both students and faculty, can strengthen law schools’ capacity to develop competent and responsible lawyers.

I ultimately decided to establish three modes of assessment corresponding to the three apprenticeships identified in the Carnegie Foundation Report. In doing so, I recognised that evaluation would require a lot more effort on my part if it was to be effective. And I should use techniques that would further the effort to get students to integrate the cognitive, practical and formative goals of my teaching.

To assess student cognitive development and performance I decided to use a two-step process. In order to measure the breadth of substantive issues discussed in the course, I decided to use 10 multiple choice examinations, administered each week, starting after the second week and ending after the eleventh week. Since I use a course management tool in most of my classes, the process of administering and grading these examinations would be almost automatic once the questions and answers were developed.

Since I believe that assessment should play a teaching role and not merely a sorting role, I decided to provide students with immediate feedback regarding the ‘right’ answer, but also to allow students to take each quiz as many times as they wished in order to get a perfect score. Students would thereby be rewarded for wanting to ‘get it right’ and, at the same time, they would hopefully internalise the ‘right’ answer.

Another capability of the various course management systems provided two other potential learning benefits. First, these course management tools identify the frequency with which questions are ‘missed’ and the extent to which the ‘wrong’ answer is chosen. By monitoring these results, I could question my own choice of the ‘right’ answer and help validate the examination on the fly. Second, the frequency with which questions were ‘missed’ would provide me with valuable interim feedback on the extent to which students were grasping critical concepts in the course. I could use this information to return to these concepts in cleaning up confusion.

The second aspect of evaluation of cognitive development and performance would be based on a final examination, but a somewhat non-traditional final examination. Instead of using a hypothetical written fact pattern, I decided to use two film clips of lawyers in action. Students would watch these clips at their leisure and as many times as they wished and evaluate lawyer actions and inactions against a framework of the Model Rules of Professional Conduct and broader issues of professional responsibility.

The next aspect of assessment and feedback was based on student journals. I decided to require students to maintain weekly journals of professional responsibility issues that they encountered in their lives.

I agreed to provide written feedback on their entries electronically. And, I scheduled bi-weekly one-on-one meetings with each student to discuss the issues raised in their journals in a more interactive and spontaneous manner.

The final basis of evaluation related to student work on behalf of clients. This aspect of evaluation is very similar to that employed every day in clinical programs across the country.

Although the exact model may differ somewhat from program to program, the model I espouse rewards insight and reflective practice (learning) as opposed to overall quality of performance or outcome of efforts.

Putting these various evaluation vehicles together, I needed to decide what weight to give to each of these elements. While there is no magic to the weighting of each factor, I wanted to give substantial weight to student performance in the cognitive, practical and formative arenas. I ultimately decided to allocate 20 points to the ten multiple-choice examinations, 30 points to the final examination, 30 points for the client-representation component of student work, and 20 points for the student journals. Students would need to engage each evaluation element in order to get a high grade in the course and each of the three apprenticeship elements would receive significant and relatively equal weight.

Because students are not randomly assigned to legal ethics sections and since instructors and students know what instructional model is being used, it is not possible to assess achievement of educational outcomes in anything like a doubleblind research model. However, there was much valuable anecdotal information obtained from students and from my experience in implementing this model.

In this article, I have proposed a replicable model of ethics education that is affordable and manageable within the financial and other realities of American legal education. The authors of the Carnegie Foundation Report have thrown down the gauntlet, challenging legal educators to improve on our model of developing lawyers and I have tried to respond to that challenge. To paraphrase the CUNY administrators interviewed for that report, we cannot afford to not respond to that challenge and seize this opportune moment for educational reform.

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