Crossing the Bar
The Column of the Legal Education CommitteeProfessional-- Responsibility: Bridging the Gap Between Law School and the Practice of Law
In 1992, the American Bar Association Section of Legal Education and Admissions to the Bar received the MacCrate Report, officially entitled Legal Education and Professional Development—An Educational Continuum. Years later Robert K. Walsh, the current ABA section chair, wrote that the report was
the result of three years of study, meetings, surveys, and hearings by a task force of almost 30 outstanding judges, practitioners, and academics, chaired by former ABA President Bob MacCrate. It first described the profession for which lawyers must prepare, including its history, different practice settings, and organization. [The report] went on to formulate a statement of fundamental lawyering skills and professional values and to describe an educational continuum through which lawyers acquire these skills and values throughout a lifetime, including both before and after the law school experience.1
The MacCrate Report identified ten fundamental skills that a competent and responsible lawyer must possess: problem solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and alternative dispute resolution procedures, organization and management of legal work, and recognizing and resolving ethical dilemmas.2 It also identified four fundamental values the profession requires: providing competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and developing within the profession.3
The MacCrate Report opened the door to a series of inquiries about how to bridge the gap between the law school experience and the practice of law. One suggestion was to give the report’s "Statement of Skills and Values" to "each entering law student—almost as a document of informed consent."4 Michigan, along with other states, began discussing reform for legal education and development of the profession.5
Traditionally, the forum that exposes law students to professional and ethical concepts and concerns is the required professional responsibility course. The main focus of this course is the study of the Rules of Professional Conduct for lawyers and the Code of Judicial Conduct governing judges. The mastery of the principles of professional responsibility and the rules of conduct is so important that it is tested on individual state bar examinations. In fact, every state except Maryland, Washington, and Wisconsin also uses the Multistate Professional Responsibility Examination (MPRE).6
In 1999 and 2000, the ABA Section of Legal Education and Admissions to the Bar began to revisit some of the findings and suggestions of the MacCrate Report. Robert K. Walsh, the section’s chair, recently asked law schools for a compilation of what they are doing to teach professionalism.7 In response to the inquiry, I shared some of the tools and resources that I use in my professional responsibility class to bridge the gap between the academic world and the "real world."
My students use a traditional case book and I also bring experts from various fields to explore current issues that relate to professionalism. At the beginning of the term I invite members of the State Bar Character and Fitness Committee, including Frank Reynolds, Lamont M. Walton, and Barbara R. Levine, to talk about admission to the Bar. Many of the issues that arise in the application process, investigation stage, and decision making regarding an applicant’s character and fitness surprise some students. The scope of the bar application and thoroughness of the investigation cause students pause to reflect not only on their personal history but also on why this type of inquiry is necessary for the protection of the public.
Other speakers I invited to my class included Steven A. Mitchell, a lawyer whose practice involves defending lawyers and judges who are subject to discipline, and Raymond E. Birkinsha, an attorney with the leading malpractice insurance firm MLM Services. Mitchell has shared his observations about getting into—and staying out of—trouble in the legal profession, relating how seemingly small things, like poor communication with clients, can lead to much bigger problems. He has discussed the disciplinary system and its procedures, telling the students how patterns of behavior like disorganization, failure to prepare, and family problems or substance abuse can ultimately lead to discipline. His presentations echoed the observations of Birkinsha, whose presentations have included the nuts and bolts of malpractice insurance coverage. The bulk of his message, however, was that strict adherence to some basic rules of practice can help avoid malpractice claims as well as discipline.
Do students take these messages seriously? Do they make the connection between the abstract discussion of "dos and don’ts" and what will be their own practice experience? When the Thomas M. Cooley Law School began to offer externship opportunities to law students a few years ago, we moved the professional responsibility class from the third year to the end of the first year. This was done in anticipation of the students’ "real world" experiences in their externship. It was only fair (and right) to send law students into lawyers’, judges’, government, and corporate legal offices armed with an understanding of the rules of professional conduct and how ethical principles should work in practice.
The response to this change in the sequence of the professional responsibility course has been very positive. Externs have reported back to their advisors that ethical issues have come up in their supervising attorneys’ offices or in their practices. The externs have not always had a concrete or satisfying answer to the problem, but they have observed first hand many of the issues that appeared abstract and disconnected from their lives as law students. Their reflections on their encounters with "real world" professional responsibility have been thoughtful.
A theme that has emerged in discussions about avoiding malpractice and discipline is that attorneys most often get into trouble when their lives have spun out of control. That lack of control can be the result of, or a reflection of, problems as disparate as substance abuse, money pressures, or a family crisis. The State Bar of Michigan led the nation in establishing the Lawyers and Judges Assistance Program, with a full-time senior director’s position providing a counseling professional to work with lawyers, judges, law students, State Bar staff, and their families on chemical and other types of dependencies that affect lawyers’ ability to practice law competently. Achievement and Addiction, a text on addiction among professionals, cited a study of indicators of substance abuse in attorneys:
Failure to appear in court, failure to file required legal notifications, borrowing from clients’ trust funds, slowness in processing mail, dues, bills, etc., missed deadlines, unanswered phone calls. Less specific but common indicators [of substance abuse] include: decline in quality of work, office staff complaints, verbal abuse of office staff, client complaints, frequent disruption of office schedule, absence with elaborate explanations, observed intoxication, mood swings, unusual irritability, drowsiness.8
These are exactly the behaviors Bar discipline authorities, discipline defense counsel, and legal malpractice experts warn against; they are behaviors the MacCrate Report identified in its "values" criteria as the "don’ts." When professionals from the State Bar Lawyers and Judges Assistance Program speak to my students and describe specific behaviors that might signal a need for self-assessment concerning drinking habits, or which may call for an informed look at a colleagues’, office staff member’s, or even a client’s behaviors, students start out being surprised, but soon come to understand that such an inquiry can be revealing and is an important part of professional responsibility.
In Achievement and Addictions, Nace explains that:
Within the legal profession, grievance committees are established to determine appropriate disciplinary action when an attorney violates the Rules of Professional Conduct. Attorneys appearing before grievance committees have a high probability of being chemically dependent. Recent recognition by grievance committees of addiction as a disease has facilitated a switch from punishment or banishment to rehabilitation.9
For a number of years the Ohio Bar has required applicants to provide "a certificate from a law school or continuing legal education sponsor, certifying that the applicant has received at least one hour of instruction on substance abuse, including causes, prevention, detection and treatment alternatives."10 Of the 30 credit hours of continuing legal education that the Florida Bar requires each three-year period, "five of the hours must be in the area of legal ethics or professionalism, including approved substance abuse programs."11
Substance abuse is not the only behavior that can lead to client complaints and possible discipline. Serious money problems have been known to cause attorneys to dip into client funds or engage in other inappropriate behavior. The average debt incurred by law school graduates has risen over the years. Law school financial aid directors used to quip that when law graduates entered practice their debt was equivalent to a car. Today they compare graduates’ debt to the cost of a house.
Michael Olivas of the University of Houston, in a 1999 article entitled "Paying For a Law Degree: Trends in Student Borrowing and the Ability to Repay Debt" noted the 1997 figures for the average cost for U.S. law school tuition per year was $19,000 for private schools, $6,000 for public in-state schools, and $12,500 for public out-of-state schools.12 The 1995 median debt owed by law students nationally was $60,20013 and in 1996, $40,300 in postbaccalaureate debt meant that the graduate’s monthly payment at eight percent interest would be $489.14 It is no wonder that lenders have started financing law student debt over a 30-year time period.
No amount of personal and/or financial pressure can excuse a lawyer’s violation of the fiduciary duty to clients. However, it is important for senior members of the bar to know of these additional pressures on new members of the profession. New lawyers also must be aware of the traps and pitfalls they or their colleagues can fall into. Calling attention to such pitfalls, Professor L. Ray Patterson says in An Essay on Teaching Professional Responsibility that "self interest as the prime motivation for human conduct" leads to rationalization of inappropriate conduct, usually after the fact.15 "One of the results of this defect is that it encourages lawyers to view an ethical issue as a separate and unrelated event rather than part of an integrated whole."16 Recently the Chief Disciplinary Counsel of the Louisiana State Bar Association, Charles B. Plattsmeir, responded to an interviewer’s question about areas in the profession that could use improvement. He said he would increase
the relationships between the organized Bar, the Disciplinary Board and the law schools. And include ethics, not just as separate one- or two-hour course in law school which you can take and then the MPRE exam and then you are done, but incorporate it into curricula of the substantive issues which are taught in law schools. Because it’s sort of like evidence, it’s real hard to teach in a vacuum. 17
I agree with you Mr. Plattsmier. Those who prepared the MacCrate Report, members of the Bar and legal educators who have taken it to heart also agree. And to the people who say that professional responsibility and ethical conduct cannot be taught, I refer again to Professor L. Ray Patterson:
To say it cannot be taught is to say it cannot be learned, which is manifestly false. There are, however, two unrecognized obstacles to teaching (and learning) the law of professional responsibility. One is the term "legal ethics"; the other is the idea that self-preservation is a matter of genes rather than culture.18
Strengthening the culture of our profession is a duty we all owe.
1 Walsh, Great Reports Redux, Vol. XXX, number 4, Syllabus, 3, 5 (1999).
2 Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, ABA Sec of Legal Educ and Admission to the Bar, 138-141 (1992).
4 Traynor, Where Do We Go From Here? in The MacCrate Report: Building the Educational Continuum (West Publishing Co., 1993) p 125.
5 Meeting the Challenge of the MacCrate Report: Building an Educational Continuum to Enhance Lawyering Skills and Values, at the Wayne State University Law School’s Driker Forum for Excellence in the Law (Sept 6, 1996).
6 BAR/BRI Digest: National Bar Exam Information (Harcourt Professional Education Group, Inc., 1999) p 4.
7 Walsh, supra at 5.
8 Nace, Achievement and Addiction: A Guide to the Treatment of Professionals (New York: Brunner/Mazel Publishers, 1995), p 109-110.
9 Id. at 110.
10 Ohio State Bar Rule I, § 3(E)(2).
11 Florida State Bar Rule 6-10(b).
12 Olivas, Paying for a Law Degree: Trends in Student Borrowing and the Ability to Repay Debt, 49 J Legal Educ 333 (1999).
13 Id. at n 4.
14 Id. at 338.
15 Patterson, An Essay on Professional Responsibility, N Ill U L Rev, Winter 1999, 333, 334.
17 Bienvenu, Interview: Chief Disciplinary Counsel Charles B. Plattsmeir, 47 La Bar J April 2000, 506, 510.
18 Patterson, supra, at 335.
All columns are the opinion of the writer and do not represent the position of the Legal Education Committee.