Rabe, S; Rosenbaum, S --- "A 'sending down' sabbatical: the benefits of lawyering in the legal services trenches" [2011] LegEdDig 11; (2011) 19(1) Legal Education Digest 38

• A ‘sending down’ sabbatical: the benefits of lawyering in the legal services trenches

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A ‘sending down’ sabbatical: the benefits of lawyering in the legal services trenches

S Rabé and S Rosenbaum

Journal of Legal Education, Vol. 60, No. 2, 2010, pp296-313

Legal writing classes and clinics differ from traditional law school doctrinal courses. The small class size and practical curricula in these non-traditional settings foster both active and cooperative learning. Using hands-on, realistic assignments, these writing and clinical classes prepare students for the challenges and realities of practising law. Creative, intelligent, and with a focus on professionalism and service, these experiences teach the nuts and bolts – and soul – of lawyering. In the law schools of the new millennium, many clinicians, including an increasing number of legal writing and skills professors, are tenured or on a tenure track and, thus, eligible for sabbaticals. With astonishingly few exceptions, however, most of them engage in traditional legal scholarship pursuits during their academic intermissions. No doubt, some clinicians are dogged by questions that are best answered by conventional commentary. Others may pursue traditional scholarship in an effort to gain credibility with their colleagues and the academy. Finally, the demands and expectations of the tenure-track process – even a modified clinical tenure track – may impose a duty on clinicians to produce customary scholarship.

Simply, we propose that clinical and skills professors, and legal writing professors in particular, consider practising law – in real-life, non-clinical settings – during some significant portion of their sabbaticals from teaching. With few, if any, costs, this proposal would foster a richer engagement by clinicians and legal writing professors with the world of practice and infuse new enthusiasm into law school classes.

Moreover, this experience in practice holds promise to (a) improve the learning experience for students in clinics and writing and skills classes; (b) offer a vital public service to the under-represented; and (c) improve the overall administration of justice.

Suzanne Rabé, a director of legal writing, recently spent three months of a one-year sabbatical working in the Oakland office of California’s Protection and Advocacy, Inc., or simply PAI, the largest organisation in the nation advocating for the civil rights of people with disabilities. Stephen Rosenbaum, a staff attorney who also teaches law part-time, was her supervisor and mentor during those three months.

Clinical professors practice law along with their students throughout the academic year. And, legal writing and skills professors are often drawn from the ranks of experienced practitioners. Despite these connections with the practice of law, which typically exceed those of many of their doctrinal colleagues, clinicians report becoming more and more removed from the realities of the day-to-day practice of law in a firm, government agency, or non-profit organisation.

It would be unthinkable for a medical professor of surgery to be removed for years at a time from the operating room. By some quirk of history, however, it has become routine for law professors, even those who teach the nuts and bolts of lawyering, to be removed – sometimes for decades – from the law firm or the courtroom.

Suzanne Rabé: After seven years of practice, I joined the faculty of the University of Arizona College of Law as a part-time legal writing instructor. Twenty-five years later, as the full-time Director of Legal Writing and Associate Clinical Professor of Law, I was bound for the Bay Area again to practice disability civil rights law on my very first sabbatical.

Several months before, I had been in touch with staff attorneys at Protection and Advocacy, Inc. over a legal issue that had arisen regarding my son, a student with disabilities attending college in the Bay Area. I was impressed – in fact, bowled over – with the phenomenal help PAI provided to my son and to me as one of his advocates.

Stephen Rosenbaum: Suzanne initially approached me about apprenticing with our law office, in part, to learn more about the substantive field of disability law, her interest having been stimulated by Joe’s recently acquired disability. She saw this as a potential opportunity to understand in practical terms the Americans with Disabilities Act and its precursor, the Rehabilitation Act of 1973. I saw her involvement as a chance to benefit from the input and output of a seasoned lawyer, but, as I did not know Suzanne, I could not fully appreciate at the outset the efficiency and empathy she would bring to our office. I did know, however, that I would relate to her more as a ‘colleague’ than her ‘supervisor and mentor’.

Rabé: For three months, I volunteered full time in the organisation’s Oakland office. I interviewed the bulk of the special education clients, sometimes as many as ten a day. After consulting with Steve and the other special education attorneys in the office, and often after undertaking legal research and investigation, I communicated advice to the clients whose cases were not turned over to an attorney for full representation. I had a tremendous amount of client contact, something I had not experienced in my many years of full-time legal writing instruction.

Because I was handling special education cases, my intake interviews were primarily with parents and always involved disability law questions. The parents were often at their wit’s end after pursuing other avenues to obtain educational services for their children with disabilities – or as others described them – ‘special needs’ children. The parents were searching for appropriate placements and educational technology for their children with autism, Down syndrome, blindness, deafness, ADHD, and other disabilities. I saw how legal issues arose in the day-to-day lives of parents and children, and I gained experience in spotting issues missed by the clients themselves. Many of the clients were low income, and I gained insight into the interplay of poverty and disability law.

Rosenbaum: What was once an ‘intake coordinator’ at PAI is now called an ‘information and referral advocate’. But, notwithstanding the glorified title, it is difficult to recruit and retain staff members who can independently and competently dispense information, make meaningful referrals, and engage in advocacy. It really requires experience, intuition, and judgement. And, I think that Suzanne’s legal training and mindset – albeit tested more recently in the classroom than at the front desk – is what made her so valuable in that role. During Suzanne’s tenure at the office, we instituted a practice of engaging more paralegal staff in the ‘triage’ of incoming calls and the monitoring of ongoing cases. This logistical and educational experiment has had mixed results in terms of increasing knowledge and improving efficiency.

Rabé: The knowledge, experience, and insight I gained at PAI has translated into better – and certainly more confident – teaching. After 25 years away from real clients I had lost confidence when instructing students about interviewing, mediating, and even spotting issues and forming arguments. But my experience at PAI has brought the client back into the centre of the classroom. For instance, after my return to campus, my second-year legal writing students were working on an appellate brief that had been adapted from an actual case in New York state involving a criminal defendant who had been observed opening the door of her apartment building to undercover narcotics officers at 4 am. When the students could not imagine an innocent explanation for the defendant even being awake at this hour, I was able to offer explanations that arose from my recent experience interviewing low-income clients in Oakland and San Francisco. I encouraged the students to look at a problem through their own eyes and then through the eyes of their client. My PAI experience enriched the classroom experience as my students struggled to create arguments that would persuade an appellate court to view the facts from the perspective of the neighbourhood where they arose. It is sometimes difficult for a legal writing professor – one who has been long absent from legal practice – to establish credibility with her students. The students are facing a legal system far removed from the one that most experienced professors first entered. When students ask why a certain practice makes sense, when a certain motion is best filed, or how a client will respond to certain advice, recent experience with courts, clients, and even 21st century law office technology, can make all the difference in effectively communicating with students.

The law school trinity is often described as teaching, service, and scholarship. Many clinics provide valuable services to the under-represented, and others work closely with judges and other lawyers to promote the administration of justice. Likewise, legal writing professors strive to model professionalism and encourage public service. Despite these lofty goals and the increased visibility of clinics and legal writing programs nationwide, a divide remains between the world of practice and the world of academics. It is not unheard of for lawyers to speak negatively about their law school experiences. Law school administrators struggle mightily to convince alumni of the wisdom of supporting the law school mission. A number of lawyers leave their law school buildings never to return; in the process, they learn little about the changes and innovations occurring in the academy. It is probably fair to say that law professors know far too little about the practice of law, and practitioners know far too little about the changes in legal education. A simple response to this problem, and one that would also benefit the under-represented, is for law professors, and especially those who teach lawyering skills, to work periodically among practitioners and judges. Because most law school policies prohibit faculty from using a paid sabbatical to earn a substantial salary elsewhere, the vast majority of any sabbatical legal work would be on behalf of pro bono clients and public projects.

Rabé: PAI receives major funding from the federal government as well as State Bar Interest on Lawyer Trust Accounts, Equal Access funds, other grants, attorneys’ fees, and donations. Despite this funding, which supports a large staff, the legal services needs of many of PAI’s clients go unmet. At the time I began my work with the organisation, in 2007, one full-time paralegal handled all intake interviews for the Oakland office, which serves nine counties in central and northern California. This paralegal’s workload was astounding, and the quality of the client interviews undoubtedly suffered. For three months, I handled all the special education intake interviews. These interviews ranged from five to 15 per day and comprised approximately a quarter of the total intake interviews for the office. By limiting myself to special education clients, I greatly increased my learning curve at the initial stages, thus becoming more valuable to the office in a shorter period of time. Had I attempted to tackle all substantive law areas of practice, my effectiveness over the long term would have increased. However, because my stay with the office was limited, the narrower focus seemed advisable.

During my time at PAI, I interviewed and relayed advice to hundreds of clients. I relieved the day-to-day advice-only workload of both lawyers and paralegals so they could focus on larger, longer term projects. I attended weekly case conferences where I presented my cases. I ate lunch in the employee lunchroom where I struck up friendships with lawyers, paralegals, and staff members. We talked about the practice of law, and we also discussed my work at the University of Arizona. Many times I heard comments such as, ‘You don’t seem like a law professor’ or, ‘You wouldn’t see any of my professors volunteering like this’. My work increased the level of legal services that the office was able to provide in special education cases. My presence probably dispelled a few stereotypes about the academy and bolstered the connections that the practitioners felt with the academy.

Rosenbaum: Suzanne was able to spend more time on the interviews with callers and because she was only handling a quarter of the total calls, to provide more detailed and individually-tailored advice. This allowed for better screening and up-front service delivery, which was prompt and more intensive and responsive than the organisational norm. She brought energy, a new work style, and a new perspective on problems, whether on the phone or in case conference. Although these traits are peculiar to Suzanne, other veteran law professors have the same potential, whatever their past experience or current area of expertise. Having a self-directed, outside professional in our midst also allowed us to consider new models of service delivery. One can always benefit from a disinterested – but, really interested – observer. For example, I believe that we do not make sufficient use of the paralegal skills of our law graduates and non-lawyer advocates in our intake and advice-and-counsel activities.

Law professors have the luxury of summers and sabbaticals to think and write about matters of importance in the administration of justice. Too often, though, what is written is read primarily by others in the academy. Judges and lawyers express increasing alienation from law review scholarship. In the effort to be creative, cutting edge, and interdisciplinary, law professors may cut themselves off from those practising in the field. Professors themselves express frustration that they write for a small audience and that much legal scholarship has little impact. Given these concerns, it is puzzling that clinicians are following their doctrinal colleagues into the practice of using sabbaticals to produce traditional legal scholarship. If even some clinicians would enter the world of practice for a portion of their sabbaticals, some of this divide could be bridged. Fewer articles would address matters of little importance to practising lawyers, and more articles would address issues that receive little publicity but often arise in practice.

Lawyers and judges see injustices and unfairness daily, and they ponder ways to improve the administration of justice. But few judges and lawyers have the time to gather data, research alternatives, and propose comprehensive change. If the academy and the practitioners could communicate more effectively, and if law professors could see the inner, daily workings of the justice system, realistic, practical change could result.

Rabé: I interviewed parents of students with disabilities, and I relayed advice to them after consulting with staff attorneys. This experience, time and time again, pointed out to me the weaknesses in my own writing program’s approach to teaching interviewing skills. In over twenty years of teaching legal writing and lawyering skills in first-year classes that directly address interviewing skills, I had never once discussed telephone interviews. I also had not discussed interviewing clients who are deaf, clients with brain injuries, or clients who are blind. I had not discussed using a second-language interpreter in client interviews. Yet, there I was at PAI doing all those things.

Rosenbaum: While Suzanne noted how the office sabbatical helped inform her teaching of writing skills, she also brought some of those skills directly to my colleagues and to law student interns. One of her first assignments was to make editorial suggestions on a report being drafted by our investigations unit. This kind of report is an advocacy tool that can help shape public policy to change practices in institutionalised settings, schools, and law enforcement agencies. Too often, practising lawyers – certainly those in public interest settings – fail to submit to peer review, for reasons of time, pride, or unavailability of a qualified reviewer. Surely, other written work by the organisation’s lawyers and non-lawyer advocates – sometimes verbose and jargon-laden – could have benefited from Suzanne’s critical eye. Just as there is value in law teachers toiling among practising attorneys, there is also a benefit to lawyers who supervise law student externs (or junior colleagues) in spending more time in the classrooms and corridors of the professoriate.

Suzanne also performed directly and explicitly as a teacher when she gave a presentation to staff attorneys and advocates at our quasi-annual state-wide staff conference on proper style manual citation format and to summer law students on persuasive writing.

Rabé: These experiences have already changed the curriculum in my legal writing classes. This year, the students will not be learning only about in-person interviews in a lawyer’s office. They will be reading about a wider variety of interviews, and they will be practising with a more diverse group of mock clients. I would not have predicted that my three months volunteering at PAI would improve our law school’s interviewing curriculum.

Rosenbaum: I have to second Suzanne’s endorsement of the ‘sending down’ model, the occasional labouring in the trenches. This is a means for faculty to stay in touch with real client issues, in a real office setting. It will probably not yield scholarship nor necessarily another kind of valued clinical work-product, such as a stellar amicus brief or practice manual. But the value to the office is in having a professional ‘outsider’ as a role model for staff to offset tendencies to become jaded, routine, or ineffectual. For clients, of course, the bonus is in establishing quality rapport and, ideally, sound legal advice.

Meaningful change may be on the horizon in many areas of legal education. The Carnegie Foundation’s two-year study of legal education – and its recommendations for more emphasis on clinics and trial or practice simulations – has generated much discussion within the academy. Our proposal—that clinical and skills professors, and legal writing professors in particular, consider practising law during some portion of their sabbaticals – addresses many of the concerns expressed by the Carnegie Foundation. Moreover, it would improve the learning experience for students in clinics and other skills classes, while at the same time providing much-needed legal services to the under-represented. In the end, it would improve the overall administration of justice by bridging the divide between the academy and practice. Ours is a modest proposal – one with few risks and little-to-no cost – that could reap significant benefits for legal education and professional practice.