We’ve been asked to write “about the implications of economic pressures on the way we teach our students.” I’ll focus on teaching the PR course. We need to get realistic, teach about ethics within practice settings, and teach competence.
First, let’s get realistic. Unless we believe that the law of lawyering is an autonomous, formalistic system, we need to teach the law of lawyering as it arises in specific economic and bureaucratic settings. To do that, we need to understand, for example, the finances and administrative bureaucracy of private practice (70% of all lawyers), in-house corporate settings (10%), government lawyers (10%), legal aid offices, etc. Early in the semester, I present a lecture on how private practice works, including PPP (M x R x U x L), billable hours, profit contributions by associates of various competence levels, the number of hours one must be in the office to meet one’s billable hour goals, partnership decisions, the “classical tournament” and the “elastic tournament,” how having kids and doing childcare affects a legal career, etc. We also talk about practice groups, supervisors and subordinates, and other aspects of the bureaucratic setting in firms. We do the same thing, albeit with less detail, about the economics and bureaucracy of cause lawyering. (I use my own materials. I’m not aware of any textbook besides Michael Downey’s that even remotely facilitates that approach. Let me know in the comments if I’m wrong about that.) As the semester rolls forward, that initial coverage permits the student to understand the real world forces that shape any given ethics analysis. In addition, most hypos and examples should have enough facts to facilitate a discussion of those forces.
That discussion about the economics of lawyering inevitably leads to students to ask why law schools don’t do a better job of developing competence, which in turns leads to a discussion of the economics of law school. It’s an important discussion, one that I’ve had in my classes in up cycles and down cycles, since the late 90’s.That dicussion, which I'll address more in my second post, has been far more pointed in the last few years.
Second, although 70% of US lawyers are in private practice, we must expose the students to enough practice settings to at least sketch what’s out there in the profession. Private practice includes a huge number of settings—from the solo practitioner doing personal injury work to the biglaw partner doing M&A work. By the time we’ve also discussed in-house and government lawyering, we’ve covered about 90% of legal practice, but there’s a lot of variety in those settings and we’d still want to cover Legal Aid lawyering, public interest cause lawyering, etc. There is a temptation to teach about the prestigious, glamorous practice areas or the ones that have political significance to us. But shouldn’t we situate the bulk of our examples/hypotheticals in the practice areas where our students are likely to work? One way to develop that approach is to correspond with a dozen “Main Street” transactional lawyers in your state and ask them, “What are the five events in your practice area with which all law students ought to be somewhat familiar?” You’re likely to hear about the incorporation event, the bank loan, the equity financing transaction, the employment agreement, and the ultimate sale. Build your ethics hypos around those events, construct a character (e.g., the “woman junior partner building her book of business” or the “3rd year associate who can’t wait to leave biglaw”), place that lawyer in a concrete practice setting, and spread the hypos across the semester as you address legal topics such as confidentiality, conflicts, independent judgment, fees, etc. Do the same for legal aid lawyers, government lawyers, etc.
Third, all ethical lawyering is competent lawyering and our goal should be to develop our students’ competence rather than, for example, just rank them. For a number of years now, we’ve heard judges, students, clients, law firm partners, alums, journalists, economists, and the authors of the Carnegie Report complain that law schools don’t teach competence. (Just curious: is there anyone out there who disputes that?) Back in the days when law degrees cost only a fraction of their economic value, when the clients of private practice firms were willing—or were forced—to subsidize the on-the-job training of incompetent newbie lawyers, and when so many of us believed that most law students would earn that Tier A biglaw salary, law schools didn’t feel the need to develop their students’ competence. Back then, schools could “let firms teach lawyering” and could instead spend their time and money on the things that most interested the tenured faculty as they vied for the approval of tenured faculty in other departments and other law schools. But the economy has changed. Some faculty might believe that those good-old-days will return, which would counsel for a cautious approach to innovation while waiting for the opportunity to once again indulge in moral hazard (i.e., spending on themselves the money of students and the taxpayers who back the government loans) and enjoying the “quiet life” that is the best of all possible rents. (I apologize for tarring with a broad brush. There are some admirable innovations going on out there, but sometimes it takes strong language to make the point.) Teaching competence requires a lot more of us than that. Lawyers need to develop skills that are valued in a variety of real-world settings and those of who are paid with law student money ought to be committed to that goal—ought to be adding value. The PR course can build competence in the most fundamental of ways: competence in the law of lawyering itself, including structuring attorney client relationships, faithfully discharging our fiduciary duties to clients, fulfilling our professional duties to social systems like the courts and the markets, being more conscious of how economics and administrative settings can warp our ethical decision-making, and so on. The PR course should be one that the students understand is about their lives as lawyers.
In my next post, I want to address some possible objections to my suggestion.