To date, this highly influential stakeholder has had very little to say.
The fierce and fascinating struggle underway in the American states over legal services reform brings to the table a large collection of interest groups. These groups include law firms, legal aid organizations, entrepreneurs who might benefit financially from the liberalization of entry rules, and of course the gatekeeper entities, including state bar authorities and the state supreme courts, whose decisions are crucial to the evolution and shape of reform. See Posts 239 (beginning of a four-part series on serious challenges of bar federalism).
The identity of these specific groups may differ from state to state, as the legal ecosystem has contours often tailored to a particular state’s history and objectives, but the configuration of stakeholders has some rather common elements.
What remains somewhat opaque in this robust and interconnected battle over the reform of legal services is the voice of legal educators and the law schools. These are, after all, the places in which future lawyers are educated and professional values are instilled. It is had to imagine a more fertile and opportune time to discuss the ambitions and philosophies of this next generation of legal professionals.
As the debate over the future legal services market rages, the contents of these conversations and advocacy efforts (from all sides) unavoidably seep into the study of law and the preparation for practice in U.S. law schools. This is early evidence that this is happening centrally through adaptive curricula. See, e.g., Chicago-Kent (Certification Program in Legal Innovation and Technology); Northwestern Law (Law & Technology Initiatives); Richmond Law (Legal Innovation & Entrepreneurship Program); Suffolk Law (courses that comprise Legal Innovation and Technology Concentration); Stanford Law (Legal Design Lab); Vanderbilt Law (Program on Law and Innovation). In a sense, these efforts are focused on the acquisition of the technical skills for one-to-many law practice.
Yet, more critically, it could also happen in a more ambient sense by faculty and students becoming ever more engaged in the conversations over the what, if anything, is broken in the present system and what new lawyers can and should do to help improve the conditions of the profession. For example, even in law schools, it is relatively rare that the access to justice crisis is a topic of sustained attention as something that the present and future generations must solve. (Query: Is A2J more complex or more intractable than climate change? If the answer is no, then we are sitting on top of an enormous amount of untapped energy.)
However configured, law schools can certainly be valuable venues for deep and broad discussions about reform and, under the right conditions, places for discernible movements to emerge and flourish. Yet, as we look over the battlefield in which stakeholder groups take strong positions, there is a still deeper question for legal education worth—that is, whether and to what extent our system of legal education has a significant stake in the outcomes of these battles? And just as important, on what side of these struggles ought law schools to be on?
Taking a strong, forceful position
The best answer, I would suggest, is the counterintuitive one: Law schools should be advocating for major adaptations to the scheme of legal services providers that empower non-JD holders, both with respect to (1) legal advice and representation, albeit under the structure of appropriate regulation (as are the developing models of Utah and Arizona and other states moving toward reforms in this regard), see Arthur Lachman & Jan L. Jacobowitz, “Arizona and Utah Jumpstart Legal Regulatory Reform,” Law Practice Today, Nov 13, 2021, and (2) alternative business structures and non-lawyer investment in law firms and legal organizations (this being the nub of the Model Rule 5.4 debate).
Why advocate such changes when there could be consequences, unintended or otherwise, for the economic well-being of lawyers, including new ones? Below I offer three justifications for taking a strong, forceful position.
Hard problems tend to be multidisciplinary problems
First, law students should be taught to see the ways in which collaborations among many professionals from different disciplines are essential to successful lawyering and to legal problem-solving. And, more to the point, they should become engaged in such collaborations through courses with a strong experiential component and armed with theory and perspective that illustrates the imperative of multi-disciplinary knowledge and, in particular, the critical intersection of law, business, and technology.
In their remarkable book, The Future of the Professions, which happily is coming out in an updated second edition, Daniel and Richard Susskind describe not only a future, but a present in which multidisciplinary knowledge is causing the dissolution of longstanding silos borne of anachronistic guilds and thereby contributing to social progress and enhanced professional welfare. This is giving way to modern systems and schemes that are both good for society and good for professionals.
These are tectonic shifts in what counts as professional knowledge and what it means to be a working professional. It is hard to fathom that changes of this magnitude do not also require meaningful changes in how we educate and evaluate these professionals. Law schools are at the fulcrum of these processes, at least so far as the relevant regulators, at least in the U.S., require a 3-year post-graduate education as a condition for sitting for (most) state bar examinations.
Thus, law schools are, arguably, the natural influencer in developing the right mix of modern skills, including the ability to work productively and efficiently across disciplinary silos with so-called “non-lawyers” (more constructively referred to as allied professionals). Cf. Marianna Wharrey, “‘A New Generation of Changemakers,'” Law.com, Nov 11.2021 (discussing large, newly funded curricular initiative at Yale Law that incorporates “accounting, corporate finance, statistics, ethics, and emerging issues related to technological change, Big Data and globalization”). Indeed, successful reform in the direction of widening the group of individuals who can furnish legal services requires lawyers who can and will work collaboratively with these para-professionals.
2. New legal professionals need educational pathways and credentialing
Second, and even more ambitiously, law schools can be the locale for the educating of these new legal service providers. This is a more controversial claim, so I need to explain what I mean more cogently.
Some of the proposed reforms contemplate that a new cadre of professionals will emerge from paralegal programs and other places where they can be educated and evaluated. To the best of my knowledge, the role of law schools has not been a major part of this conversation, although it appears that law deans in both Utah and Arizona have been part of these conversations, maybe with an eye toward greater engagement with regard to educational pathways.
As the details of implementation efforts take shape, however, we should look more closely at the ways in which law schools might take into their midst the main responsibility of educating this new generation of para-professionals. Just as lawyers need to become trained more effectively to work with non-lawyers (let’s practice saying “allied professionals”) on matters that call for cross-disciplinary skills and knowledge, from the very beginning of the educational process, there needs to be similar attention paid to the para-professional-lawyer relationship. Otherwise, it is unrealistic for para-professionals to take more expansive roles in legal advice and representation. Law schools are the natural place for these conversations to begin.
Where does this leave modern paralegal education? This is a larger topic, and beyond the scope of this mostly polemical post. But I would just suggest that the structure of paralegal education, which has historically been developed and shaped at arms’ length from law schools, might become better integrated, and more conspicuously tied to the objective of educating individuals who have the right amount of mix of legal skills to become effective and ethical providers of necessary legal services.
At bottom, we see a great groundswell of enthusiasm for closing the access to justice gap by loosening barriers to providing legal services and reforming “unauthorized practice of law” regulations. But what is less well-formulated is what kinds of training are needed and who should bear the principal responsibility for the preparation of these new para-professionals?
Law schools should be squarely and even prominently part of these conversations. This is not to say at all that the configuration of educational strategies should merely be folded into the structure of law school regulation under the aegis of the American Bar Association’s Section on Legal Education and Admissions to the Bar. Maybe the ABA should play a role in the structure and supervision of para-professional training or maybe not. But before we get to questions about regulation and its (dis)contents, we need legal educators and law school leadership to engage broadly and deeply with other stakeholders in the “reform” space about what it truly means to educate new legal service providers for a modern world in which such providers will play a more meaningful and even elaborate role.
3. Staying relevant during a time of enormous change
Finally, law schools should be ever more engaged in the overall shape and particular components of our legal ecosystem, not only, or even primarily, as advocates for particular changes, but as places in which students can become better educated about the systems and structure of our profession and the changing and highly variegated “legal industry” that is growing up around it.
Many of us who teach law for a living explain to our students that they should not be in law school to simply learn the law as it is “in the books”, but should also understand how it works “on the streets.” Moreover, we work hard to inculcate in them the value of becoming reformers. Don’t take the law as it is, we urge, but think about how to make it into the law that it ought to be. These are important messages, and, in the hands of passionate and informed law teachers and with our eager and remarkably able young people here in our law schools, they work their way through the curriculum and hopefully into the DNA of our emerging lawyers.
But there is another key message for us to communicate as well: Law students will become lawyers who will be the ones principally responsible, under our tradition of lawyer self-regulation, for shaping the playing field, for creating the structures and conditions in which legal services are provided, efficiently and compassionately, to those in need of such services. And so our students need to be educated not only in how best to provide these legal services, but in how best to construct and reform the entire legal ecosystem. This requires close attention to structure and, with it, its economic and political underpinnings (and thus persistence) of our current system(s) of lawyer regulation.
In all, law schools are a key stakeholder in the debate over reform.
They We can engage in the conversation as institutions writ large; we can furnish models of education that will aid regulators and other decisionmakers in choices about how best to fashion solutions, whether in these so-called regulatory sandboxes or in other designs; and we can construct curricula and develop meaningful messages to current law students that will help in learning about structure, in its role and in its limits. The ingenuity of legal educators is substantial, and while the incentives to make this a big priority are at most uneven and at worst wanting, we can and should push law schools to take a prominent seat at the table.