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From the President

Truth in lending and in careers

By Howard B. Miller
President, State Bar of California

Howard MillerThose of us in leadership positions in bar organizations need to look closely at the lives of those seeking to begin the practice of law, and where changes in the economy and the profession are leading them.

The economic impact of the great recession has been acute. For graduates in 2008, 2009 and this year, the combination of the number entering practice, the lack of jobs and the levels of debt are devastating personally to those involved and should be to all of us who care about our profession.

The exact numbers at the margins are not as clear as we would like, because so much involves small firms and personal circumstance, and many of the changes are too recent for complete accuracy. The average debt of law graduates now approaches or exceeds $100,000, and because of recent increases in tuition, especially at public institutions which historically have been more affordable, debt burdens will be even greater in a couple of years.

At least 10,000 lawyers, probably more, including many, many mid-level associates with no place to go, have been officially laid off during this recession. Many more have job offers with deferred entry dates, or are counted as “employed” while voluntarily interning for nothing, or who are in temporary lawyer jobs reviewing documents for $15-$20 an hour, with no security and jobs that can disappear at any moment.

There is notoriously unreliable self-reporting by law schools and their graduates of employment statistics. They are unreliable in only one direction, since the self reporting by law schools of “employment” of graduates at graduation and then nine months after graduation are, together, a significant factor in the U.S. News rankings — which are obsessed over, despite denials, by law schools and their constituencies. The anecdotes are as telling as the statistics: prestigious lawyers in the state are hiring their own children to work in their firms because even with their connections they were unable to find employment elsewhere. And if things do pick up, those in the classes of 2008, 2009 and now 2010, whatever they will have been doing, are unlikely to be viewed favorably by firms as first year entry hires.

These realities may be starting to have some impact on those considering a legal career. A recent survey by the Kaplan organization showed that though 52 percent of pre-law students are “very confident” of finding a legal job after graduating from law school, only 16 percent of those students are “very confident” their classmates will have similar success. Yet as often happens during a recession, when college graduates are also having difficulty finding jobs, the number of applications to law schools is up, reflecting a traditional role of legal education serving as a contingent backup plan for those uncertain about their futures. So there are likely to be even more lawyers unable to get jobs, except perhaps those who do well at national elite law schools, and those who already have a guaranteed family connection.

For the foreseeable future the starter jobs that provided traditional training for those lawyers are not coming back (See Miller, Structural or Cyclical?, President’s Column, February 2010 California Bar Journal). Out of necessity, and without any practical experience, many unemployed lawyers are or will be setting up their own solo, usually community-based, practices. Those practices can be enormously satisfying, and when done well are needed by clients. Given the current state of legal education and what the bar exam tests, however, it is far from clear those lawyers are qualified to do so, and will not just be a risk to themselves but to their potential clients.

Do we in the profession have an obligation to deal with all this — especially the State Bar of California? I think we do.

First, for those who will have already graduated and passed the bar exam, we need to plan on developing post-graduate and post-bar passage legal education practice courses, continuing a tradition, as in the value of apprenticeships, of the profession training its own, focusing on law practice management, the needs of clients, and how to meet those needs — especially by shaping new pricing models besides the billable hour to attract clients suspicious of legal fees. The market demand is there if we can train and price to meet it. We need not only courses, but the commitment of experienced lawyers to act as mentors in developing practice skills and helping to think through the new models as well. We may need to absorb much of the cost of doing this ourselves and provide additional recognition to young practitioners by giving certificates of practice that clients and consumers will look to in choosing lawyers.

Second, the Committee of Bar Examiners, in consultation with California Accredited as well as ABA law schools, needs to begin a serious study of what kind of tests will genuinely determine who is qualified to practice law. Even according to those who administer the bar exam, it is at best only a test of minimum competence of one atypical aspect of being a lawyer: the application through recall alone of certain black letter rules under artificial conditions. It uses computers, but only to write. The exam takes no advantage of modern technology to replicate client interviews, counseling, negotiation or trial activities with real time — realistic responses that could be used to judge true lawyer skills.

How many would want a surgeon to operate on them who had only been tested on a written exam, without seeing or operating on a patient, even in a simulation? The bar exam continues to exist as an accepted but flawed tradition, with only tangential problem solving connections to representing clients or any realistic certification of the ability to practice law. The coming changes in law practice, in its pricing models and client expectations for community-based solo practices, will require those of us who have been deeply involved in the current structure of the bar exam to think through what an effective qualification exam must be, which, in addition, can have an impact on necessary changes at the law schools as well. (See Miller, Legal Education for the 21st Century, President’s Column, April 2010 California Bar Journal.)

Finally, we need to be transparent with potential lawyers about the cost and benefits of studying law. All law schools need to gather, verify and report, in consistent and specified ways, the employment record of their graduates, as well report on those who may have started, paid tuition, but never graduated. A good place to start is with our own California Accredited and Registered law schools, over which the State Bar and the Committee of Bar Examiners have jurisdiction.

People are and should be free to make their own choices, based on full information and transparency. Fortunately there will always be those who choose to become lawyers. I would, regardless of the cost and risks. But those cost and risks must be made known. And clients are and should be free to choose their own lawyers. We are talking here about the basic integrity of the profession as a whole. Those who are deciding whether to study law should have full information and transparency on what they are facing. Clients should have confidence that the lawyer they consult has actually been taught, trained and is qualified to practice law. Who would argue to do anything less?