Recent changes in ABA accreditation standards are an opportunity to deepen and broaden U.S. legal education in ways that matter to students, employers, and broader society.
[Editor’s note: Legal Evolution is pleased to welcome today’s guest contribution from Neil Hamilton and Louis Bilionis, who are doing the foundational work of broadening the scope of the law school curriculum — and more daunting, the law professor mindset — to include skills crucial for professional success but also for lawyers’ roles as leaders and problem-solvers who focus on the long-term greater good.
As discussed below, this movement recently won a victory with the change in the ABA accreditation standards to include professional identity formation. Professors Hamilton and Bilionis (Neil and Lou) are at work supplying the first generation of content. For innovators and early adopters, nothing happens as fast as we want it. Yet, Neil and Lou are doing everything in their power to ensure the wheels of progress in U.S. legal education are indeed rolling. wdh.]
Recent posts in Legal Evolution have explored the country’s political and economic instability and social strife, theories for national decline, and the special roles and responsibilities of the legal profession to address these challenges. See Posts 312, 319, 321 (exploring duties of lawyers in the present age). This post focuses on recent accreditation changes in legal education that, we hope, will help new generations of law students internalize the profession’s special roles and responsibilities and thus more effectively address our pressing social and political challenges.
In February 2022, the ABA revised Accreditation Standard 303(b) to add that “a law school shall provide substantial opportunities to students for: …. (3) the development of a professional identity.” And a new subsection (c) has been added to Standard 303, providing that “[a] law school shall provide education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.” Am. Bar Ass’n Sec. of Legal Educ. and Admissions to the Bar, Report to the House of Delegates at 4 (adopted Feb. 14, 2022). New “Interpretations” accompany the revisions to Standard 303, including two that provide guidance on the meaning of professional identity and thereby illuminate the relationship between the revisions.
- New Interpretation 303-5 states that “professional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of a professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice. Because developing a professional identity requires reflection and growth over time, students should have frequent opportunities during each year of law school and in a variety of courses and co-curricular and professional development activities.” Id at 5.
- New Interpretation 303-6 provides “the importance of cross-cultural competence to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law should be among the values and responsibilities of the legal profession to which students are introduced.” Id.
Section I of this post focuses on the important threshold task of clearly defining professional identity. Section II explores how innovator and early adopter law schools and legal employers can build a bridge for students (and new lawyers) to grow toward later stages of professional identity. Section III discusses how the “skill of reflection” is central to each student’s (and lawyer’s) professional identity. Finally, a short appendix collects the traditional technical skills that law school emphasize (Table 1) and the competencies that empirical studies show that clients and legal employers needs.
NB: These ideas were initially worked out in an open-access Cambridge University Press book that we have authored, titled Law Student Professional Development and Formation: Bridging Law School, Student, and Employer Goals (2022). The book offers a framework, guiding principles, and practical suggestions for bringing purposeful support of law student professional identity formation into the American law school. Likewise, we believe these same principles can guide legal employers’ professional development efforts to foster lawyer professional identity. Thus, this post also borrows ideas from our recent articles in the May and June 2022 issues of NALP’s PDQ.
I. What is a student’s and lawyer’s professional identity?
We offer two definitions: a one-sentence definition that applies to all professions, and a more in-depth, but still short, definition for the legal profession. These definitions can be a useful entry point for discussion and reflection about professional identity by law schools and employers.
A. One-sentence definition that applies to all professions
Fostering the development of each new entrant’s professional identity is the same challenge across higher education for all professions. Educators in each field help a new entrant understand, internalize, and demonstrate what it means to be a member of that profession and the special obligations of that profession both to the persons served and to society.
At the most foundational level, a student’s professional identity (across the professions) means that the student understands, internalizes, and demonstrates:
- an internalized deep responsibility and service orientation to others whom the student serves as a professional in widening circles as the student matures; and
- pro-active continuous professional development toward excellence at all the competencies needed to serve others in the profession’s work well.
See Neil Hamilton, “The Core Values of Eight Service Professions and an Effective Curriculum to Help Students Internalize Them,” in Educating in Ethics Across the Professions (R. Jacobs ed., 2022).
B. A short definition in the context of the legal profession
We can synthesize a succinct definition of professional identity from the Preamble to the Model Rules of Professional Conduct, the four major reports on professionalism from the ABA and the Conference of Chief Justices, and Holloran Center research.
A law student’s professional identity means that the student understands, internalizes, and demonstrates:
- a deep responsibility and commitment to serving clients, the profession, and the rule of law; and
- a commitment to pro-active continuous professional development toward excellence at all the competencies needed to serve others well in the profession’s work.
See William Sullivan et al, Educating Lawyers: Preparation for the Profession of Law 128-40 (2007); Neil Hamilton, “Professionalism Clearly Defined,” 18 The Prof Lawyer 4-20 (No. 4, 2008); Neil Hamilton, “Assessing Professionalism: Measuring Progress in the Formation of an Ethical Professional Identity,” 5 U St Thomas L J 470,482-83 (2008); Neil Hamilton, “Fostering Professional Formation (Professionalism): Lessons From Carnegie Foundation’s Five Studies on Educating Professionals,” 45 Creighton L R 763-97 (2012).
II. Building a bridge so that students understand, internalize, and demonstrate a later-stage professional identity
Interpretation 303-5 emphasizes that professional identity formation is a developmental process requiring reflection and growth over time. Empirical research strongly supports that internalizing and living into a profession’s values occurs in stages over time, principally through experience, feedback, and reflection, particularly guided reflection in a mentoring or coaching relationship.
A. What the data shows
We also know from empirical research that legal educators engaging students in professional identity formation must “go where students are” developmentally, by which we mean fashioning curricular initiatives on professional identity formation with the interests, needs, and individual circumstances of students in a clear, appreciative view. Students will buy in if they see that these initiatives help them reach their own personal goals. With buy-in comes student ownership of responsibility for personal professional development, engagement, and growth.
We have reasonably good data on the goals of both applicants to law school and enrolled law students. The 2018 Association of American Law Schools (AALS) report, Before the JD: Undergraduate Views on Law School, is the first large-scale national study to examine what factors contribute to an undergraduate student’s decision to go to law school. See Ass’n of Am. Law Sch.., Before the JD: Undergraduate Views on Law School (2018). A synthesis of the AALS data indicates the most important goal of undergraduate students considering law school is meaningful post-graduation employment with the potential for career advancement that “fits” the passion, motivating interests, and strengths of the student and offers a service career that is helpful to others and has some work/life balance.
Achieving a high income is an additional key factor defining the meaningfulness of employment for about 30% of the students considering law school. Id at 44. Of the undergraduate students considering law school, 31% responded that the potential to earn a lot of money was an important characteristic in selecting a law career and 31% responded that “there are high-paying jobs in the field” was an extremely important or important criterion for selecting the specific law schools to which they applied. Id.
A 2017 empirical study of enrolled 1L students in five law schools asked, “What are the professional goals you would like to achieve by six months after graduation?” The two most important goals were bar passage and meaningful employment, followed by sufficient income to meet loan obligations, a satisfactory living. and a trustworthy reputation. See Larry O. Natt Gantt, II & Benjamin V. Madison, III, “Self-Directedness and Professional Formation: Connecting Two Critical Concepts in Legal Education,” 14 U St Thomas L J 498, 503–04 (2018).
B. Building a bridge to a meaningful, purposeful career as a lawyer
A law school’s professional identity curriculum can be envisioned as a bridge that unites the students’ goals of bar passage and meaningful post-graduation employment and the needs of clients, legal employers, and the legal system. Students who embrace that vision can “buy into” and engage in the curriculum more effectively. The law school can take three basic initiatives that will help students embrace that vision. The first two initiatives draw upon the school’s capacity to communicate well and with an appreciation of the student’s perspective.
The first initiative is to help the student envision and comprehend the bridge. Faculty, staff, and the administration can assist the student to understand:
- the full array of competencies that clients and legal employers want including not only the traditional technical competencies in Table 1 in the Appendix that all law schools emphasize, but also other competencies in Table 2 in the Appendix like client-centered relational skills, problem solving, and good judgment and an entrepreneurial mindset to serve clients and legal employers in changing markets;
- the commitments, capacities, and skills that the legal profession, the justice system, and society need with respect to:
- improving the law, providing pro bono service to the disadvantaged, and promoting a justice system that provides equal access and eliminates bias, discrimination, and racism in the law;
- developing and being guided by personal conscience – including the exercise of “sensitive professional and moral judgment” and the conduct of an “ethical person” – when deciding all the “difficult issues of professional discretion” that arise in the practice of law, ABA Preamble; and
- developing independent professional judgment, including moral and ethical considerations, to help the client think through decisions that affect others, and
- the importance of a student pro-actively taking ownership of the student’s own professional development, using both the formal curriculum and professional experiences outside of the formal curriculum, to develop toward later stages of the competencies that are the student’s strengths, and to have evidence of the student’s later stage development that legal employers will value.
The second initiative for the law school is to communicate to students, in language and with concepts that they understand, how most effectively to use the bridge that the law school’s curriculum and culture create for each student.
The authors’ experience is that students are at different stages of development regarding (1) – (3) in the first initiative above, and many students need substantially more help than might be expected to grow to understand the bridge and to become pro-active in using their time in law school to achieve their post-graduation goals and the school’s goals. A number of factors appear to contribute to the difficulty. Many students want to be told what to do, a posture consistent with how they experienced their education before law school. As William Henderson has noted, law students expect to learn about their law school subjects in standard ways. The emphasis of the 1L year curriculum on cognitive competencies, moreover, means that students go relatively unexposed to the fact that the practice of law calls for a much broader array of competencies than knowledge of legal doctrine and the performance of legal analysis. See William D. Henderson, “A Blueprint for Change,” 40 Pepp L Rev 461, 505 (2013) (discussing student resistance when teaching goes beyond standard subjects taught in standard ways).
The authors’ experience is that nearly all students, including highly ranked students, need substantial help in framing an effective persuasive argument that their personal strengths meet a particular employer’s needs (in the language of the employer) and that the student has evidence of this later stage development that the employer will value.
The law school’s curriculum and culture, from orientation through the remaining three years, can be used more effectively to help each student see and use the bridge, meeting them where they individually are developmentally. One powerful step in this direction would be for as many faculty as possible from all roles and ranks, whether doctrinal/podium or experiential, to make transparent to students the entire map of competencies needed to practice law, and to make explicit what competencies the student is learning in the course or in a particular experience. See Figure 1, based on the Delta Model, as a possible framework; see also Post 125 (discussion by founders of Delta Model). Even when a faculty member does not personally focus on professional identity competencies in a course, the professor can still endorse their significance and underscore how those competencies are addressed elsewhere in the school’s academic program. Such “cross-selling,” is quite easy, especially if faculty are provided talking points.
A third initiative is to extend the “go where they are” philosophy to the legal employers that hire significant percentages of the school’s students.
The law school can build a bridge to legal employers too, helping them recognize that the law school’s graduates are reaching later stages of development on the capacities and skills that employers and clients need and that the profession, the justice system, and society need. For example, as a law school develops a curriculum and culture to foster each student’s growth toward later stages of development on the professional identity goals and the related competencies, the school’s career services and public relations offices need to be communicating with legal employers — in language the employers understand — how the school’s graduates can demonstrate a much wider range of the competencies needed. In addition, law students will need education on how to communicate these strengths persuasively.
III. The skill of reflection is central to each student’s (and lawyer’s) professional identity
Interpretation 303-5 observes that “because developing a professional identity requires reflection and growth over time, students should have frequent opportunities [for reflection and growth] during each year of law school and in a variety of courses and co-curricular and professional development activities.”
Although the interpretation does not define “reflection,” a helpful definition can be synthesized from medical education and earlier legal education scholarship. The skill of reflection is an ongoing cycle of careful examination of specific thoughts, actions, and experiences from a student’s own perspective and the perspective of others to inform and improve the student’s insight and practice for future experiences. See Neil Hamilton, “The Foundational Skill of Reflection in the Formation of a Professional Identity,” 12 St Mary’s J Legal Malpractice & Ethics (forthcoming 2022).
A systematic review of the most cited medical education papers on reflection in the period 2008 to 2012 defined reflection as “the process of engaging the self in attentive, critical, exploratory, and iterative interactions with one’s thoughts and actions, and their underlying conceptual frame, with a view to changing them.” Quoc D. Nguyen et al., “What is Reflection? A Conceptual Analysis of Major Definitions and a Proposal for A Five-Component Model,” 48 Med Educ 1176, 1182 (2014).
This conceptual model of reflection has two extrinsic elements and four core sub-competencies. The first extrinsic element is an experience that triggers a reflective thinking process. The second extrinsic element is the timing of the reflection. In the vast majority of definitions of reflection, the timing occurs after the experience, but these authors believe reflection should occur before, during, and after the experience. See id at 1184.
The four core sub-competencies (or steps) of a reflective thinking process are:
- to identify specific thoughts and actions the person is thinking about;
- to think about the thoughts and actions attentively and critically, in an exploratory and iterative fashion;
- to become aware of the conscious or unconscious conceptual framework(s) that underlie the person’s thoughts and actions; and
- to have a purpose of changing the self in terms of the person’s conscious or unconscious conceptual framework.
Id at 1181–82. (We have added to our synthesized definition of reflection the qualification that examination should be undertaken from the student’s perspective and the perspective of others.)
There are innovators and early adopters with law schools, firm legal employers, organizational client law departments, and professional organizations who are deeply concerned about the responsibilities of the legal profession to address the current challenges that our society faces. The Standard 303 accreditation revisions offer a major opportunity to work together to help the next generations of lawyers to internalize and live into a professional identity that includes the needed commitments, capacities, and skills to make a difference in addressing our society’s challenges.
A growing number of empirical studies asking clients and legal employers about the competencies needed for successful legal practice support the conclusion that the six traditional technical competencies that law schools emphasize, which are outlined in Table 1 below, are necessary but not sufficient to meet client and legal employer needs in changing markets. See Neil Hamilton, “The Gap Between the Foundational Competencies Clients and Legal Employers Need and the Learning Outcomes Law Schools Are Adopting,” 89 UMKC L Rev 559, 561-82 (2021).
|Table 1. Traditional Technical Competencies That Law Schools Emphasize|
|1. knowledge of doctrinal law in the basic subject areas|
|2. legal analysis|
|3. legal research|
|4. written and oral communication in the legal context|
|5. legal judgment|
|6. knowledge of the law-of-lawyering responsibilities to clients and the legal system|
Table 1 competencies are listed in 2021-2022 Standards and Rules of Procedure for Approval of Law Schools, Standards 302 (a)-(c), Am. Bar Ass’n Sec. of Legal Educ. and Admissions to the Bar.
The additional competencies that the empirical studies indicate clients and legal employers need from lawyers in changing markets are listed in Table 2 below.
|Table 2. Additional Competencies Empirical Studies Indicate That Clients and Legal Employers Need|
|1. superior client focus and responsiveness to the client|
|2. exceptional understanding of the client’s context and business|
|3. effective communication skills, including listening and knowing your audience|
|4. client-centered creative problem-solving and good professional judgment|
|5. ownership over continuous professional development (taking initiative) of both the traditional technical competencies in Table 1 above, the client relationship competencies above, and the capacities and skills below|
|6. teamwork and collaboration|
|7. strong work ethic|
|8. conscientiousness and attention to detail|
|9. grit and resilience|
|10. organization and management of legal work (project management)|
|11. an entrepreneurial mindset to serve clients more effectively and efficiently in changing markets|