Periodically there are discussions about whether a three-year program of legal education is still necessary, or whether a two-year program would be sufficient. See here. These discussions, however, contemplate a change to the length of legal education for all Juris Doctorate programs. The legal profession should consider whether a range of degrees should be available. Such a range could include the three-year J.D. based on a general program of legal education, in addition to specialized degrees based on one or two years of legal education. This approach would, of course, require approval by the state supreme courts because they would ultimately have to grant limited licenses so that individuals with specialized degrees could independently practice law within their license’s specialty without committing the unauthorized practice of law. Such a stratification of the legal profession is an unexplored option that may be worth considering for many reasons in today’s marketplace.
As an initial matter, the legal profession is not meeting the needs of population. Today, while many law school graduates are unemployed or underemployed, the legal needs of individuals in today’s troubled economy has risen sharply. And yet, this over-supply of lawyers and under-served population cannot meet in the marketplace because the cost of legal services is unaffordable to so many individuals. While household income has decreased 5% since 1999 (see here), lawyers’ average billing rates increased 7.7% in 2007, 4.3 percent in 2006 and 2.5% in 2009. To make matters worse in the marketplace, the cost of legal education increased 317% between 1989 to 2009. Law students frequently take out six figure loans and then need to find employment with salaries high enough to repay those loans. The jobs that pay salaries high enough to repay these loans are rarely the jobs that serve the needs of low- and middle- income individuals; they are usually the jobs that serve wealthy individuals and commercial interests. In the end, individual consumers are priced out of the marketplace and have to rely increasingly on government funded or subsidized legal services at a time when funding for these types of services is suffering severe pressure and cuts. The cost of legal services in the marketplace needs to be driven down.
This leads me back to my original thought.
Are there ways to make legal education more affordable while producing competent practitioners who could then afford to provide legal services in areas that are underserved, such as housing, family law and consumer debt collection issues? Could this be accomplished by providing specialized degrees that could be earned in less time, and at less cost, than a three-year J.D.? Is this consistent with the increased specialization of legal practice? For example, imagine a licensed housing advocate. Perhaps such an advocate could provide legal representation in residential real estate closings, evictions, landlord-tenant disputes and foreclosure proceedings—areas of high consumer need—without any supervision by a licensed attorney. A person with a housing advocate license would have to complete an educational program focused on this specialization. A forty-five credit 18 month program could, for example, require courses in state civil procedure, contracts, property, real estate transactions, professional responsibility, landlord-tenant law, followed by a semester long intensive practicum or clinical capstone course in these areas that would focus on developing a market-ready skill set. There could be an examination focused on these substantive areas and continued education requirements.
The health care field provides an analogy for this idea. Legislatures, through their police powers, have provided consumers with a large spectrum of choices. For example, a person with a medical problem can seek help from individuals with a wide variety of training and skills, as well as a wide range of cost. Depending on the ailment and the treatment desired, a person can choose to see a physician, a chiropractor, a podiatrist, a physician’s assistant, a nurse practitioner, a midwife, or an acupuncturist, just to name a few. A surgeon is not needed for every medical issue. In providing these options, the legislative process has allowed for the inclusion of all of the stakeholders in the debate over what services different health care professionals can safely provide to consumers. This inclusive process has put external pressure on physicians—who have an economic interest in maintaining the broadest possible monopoly—and forced them to cede parts of their territory in order to increase access to health care, lower costs and provide consumers with choices. There is no comparable model in the delivery of legal services because, at least in part, the state judiciaries have generally claimed the exclusive power to regulate legal services, which has excluded the legislatures and the public from discussions about the regulation of legal services. Thus, the legal profession has been shielded from the external pressures that other professions face regarding their regulation and the scope of their monopolies. There are good reasons one could articulate in support of these differences (such as medicine does not relate to an independent branch of government), but if the legal profession is going to remain self-regulated, it is important that the profession be innovative about providing more of the population with affordable legal services.
This post hits upon a key problem in the market for legal services: the disconnect between supply and demand. Lawyers struggle to find jobs, or at least jobs that provide sustainable wages. Meanwhile, people in need of lawyers -- particularly those who do not qualify for pro bono work but lack resources to hire regular legal help -- struggle to find legal counsel, often for critical situations such as child custody or housing matters.
I think your idea of changing the marketplace of legal education is a good one. Interestingly, helping lawyers understand different models for the delivery of legal services would also help.
If we look at health care providers, for example, my wife is a nurse practitioner. Under state law, she can provide some services on her own, but requires a physician to provide others. She has a collaborative practice agreement with a physician who agrees to work with her and to provide appropriate oversight when needed. Your licensed housing advocate could operate the same way. The housing advocate could contract with a lawyer to provide some supervision, but operate with greater autonomy than a paralegal normally may have. The result would allow for greater provision of legal services to those of limited means, while maintaining some check to ensure that the legal services are competently provided.
Posted by: Michael Downey | February 08, 2012 at 07:23 PM
The collaboration concept model as developed with the NPs is a good idea to consider. Thanks.
Posted by: Laurel Rigertas | February 08, 2012 at 08:36 PM
This is an idea I've been pushing for a long time. The trick is to find specialties that are self-contained enough to not necessitate the full scope of law school education. Child custody and child support and parental rights and adoption (apart from the property issues of divorce), immigration, and criminal law seem particularly well suited to having independent professionals on the grounds that there is unmet needs of moderate to low income people and the breadth of legal expertise involved in narrow.
Posted by: ohwilleke | February 09, 2012 at 11:18 PM