21st Century Law—Significant Issues for New Lawyers, New Challenges for Experienced Lawyers
Too many new lawyers are saddled with substantial debt, face employment challenges, and may lack the crucial "practice-ready" skills they need to serve clients competently in the absence of effective mentoring. Many veteran lawyers lack familiarity with the technology needed to take advantage of case management tools and systems for delivering legal services more affordably. Current Michigan lawyer regulation does not stress the need for practice skills at the beginning of a legal career, nor effectively incentivize updating skills and knowledge throughout a legal career.
More affordable and practice-oriented legal training that gives graduates the skills they need to begin to earn a living and serve the public upon admission to the bar. More opportunities for new lawyers to initiate their practices through service to low-income and "modest means" clients. More training and resources for all lawyers on the ethical, appropriate application of technology to the delivery and marketing of legal services. A post-admission continuing education system that encourages professional development throughout each lawyer's career through innovative delivery and incentives.
Basic Elements of the Plan
- Support law schools' efforts to expand clinical and skills-based training opportunities, exploring opportunities to locate law schools' incubator law firms near Legal Self Help Centers (LSHC).
- Revamp admissions testing to better and more fully test relevant Michigan legal knowledge and practice-readiness, starting earlier in the law school education process.
- Couple new lawyer skills training with service to indigent and lower income populations.
- Evaluate the relative effectiveness of the various support program models (clinics, mentorships, internships) for new lawyers through analysis of existing training programs and pilot programs.
- Support, encourage, and develop programs that connect new lawyers with low-income clients, under the supervision of experienced lawyers.
- Implement a robust package of high quality continuing legal education (CLE) innovations and incentives.
- Promote and support technology competence as an important element of legal practice.
- Enhance training for judges and lawyers on the ethical use of technology.
- Develop specialty certification standards that will advance ethical, quality legal representation in specialty law practices and help consumers in choosing a lawyer.
- Develop State Bar resources to promote and support each active member's professional competence and maintenance of a continuing professional development plan.
- Prepare a position paper on a phased-in or sequential bar admissions process for consideration by the Representative Assembly. Among the elements to be considered, in the position paper:
- Offer the Multistate Professional Responsibility Exam (MPRE) as soon as the first year of law school.
- Offer a multi-state test (MBE) earlier after the core doctrinal courses are completed.
- Create practice-ready and Michigan law testing after the J.D. as the final admissions test.
- Require the completion of a certain number of hours of supervised experience in law practice activities through law schools or through a separate BLE-approved program as a condition of admission.
- Develop guidelines for individualized law school financial planning, advising law students prior to the beginning of the first year, and after the first and second years.
- Amend rules to expand opportunities for law students to represent low income clients in court with lawyer supervision.
- Support law school curricular reform to expand training, including experiential learning, and evaluate granting academic credit for compensated field placement.
- Convene SBM sections, in collaboration with the Institute for Continuing Legal Education (ICLE), to develop proposed specialty certification guiding principles and utilize specialty certification to help consumers in choosing a lawyer.
- Test pilot certification programs to evaluate the features and standards for innovative approaches to certification.
Modernized admissions testing
Pro bono culture within the law student community through the use of SBM social media and member directory platforms
Individualized professional development and specialty certification in lieu of mandatory continuing legal education (MCLE)
Thinking Through the Problem
The Challenge of Practice-Readiness. Very few veteran lawyers will claim to have been "practice-ready" on the day they were admitted to the bar. Except for the few who clerked while in law school, most learned their trade after law school within the structure of a law firm, legal aid office, prosecutor's office, or, by being taken under the wing of an experienced lawyer through bar association or family connections. The economic downturn in legal services has made these traditional pathways to proficiency less available to many of today's graduates. In response, law schools have been expanding their clinical practice options and designing a variety of new approaches to develop practical legal skills training as part of law school education. Bar associations have been exploring ways to make mentoring a more reliable and effective source of skills development. Law schools are also expanding law school education to facilitate nontraditional career paths for licensed lawyers and build the skill sets needed to foster collaboration across professions to address the demands of legal consumers. These efforts can be enhanced through more strategic collaboration between law schools and state and local bar associations.
There are promising new efforts already underway. Law school incubators in Michigan and around the country are getting good reviews for developing practice and business skills, often while bringing legal help to underserved populations. Law firm incubator and residency programs are emerging as models that enable newly-admitted lawyers to acquire the range of skills necessary to launch successful practices. The alpha incubator was established at the City University of New York over a decade ago. Recent changes in the economy have led to the creation of similar models by both law schools and bar associations. This site provides a directory of current and planned incubators and residencies, profiles of the programs, and information about the latest developments.
Coordination of these efforts with legal self-help centers could further the "continuum of assistance" and triage system envisioned as a remedy for the dysfunctional legal market. Another promising way to expand law student and new lawyer "boots on the ground" training while bringing new resources to bear on the "justice gap" is to amend MCR 8.120. The court rule currently permits law students and recent grads, who have not yet passed the bar, to provide supervised legal work in legal training programs organized in the offices of prosecuting attorneys, county corporation counsel, city attorneys, the Attorney Grievance Commission, the Attorney General, and in legal aid clinics and defender offices. Amending the rule to cover legal work supervised by specially trained lawyers in other settings targeted to underserved populations could further spread the benefit of the rule. An added advantage of such efforts is that they will help the participants internalize the ethical obligation of pro bono legal service, a process that bar associations can further promote through their online tools, including social media.
Advancing "practice-ready" new lawyers also requires re-envisioning the bar admission process. Presently, the Michigan bar exam consists of the multistate bar exam (MBE) and the Michigan-specific essay portion. Like most other jurisdictions, Michigan's two-day bar exam does not test a law student's acquisition of practical skills. The most direct and consequential way to encourage the acquisition of such skills is to test for them as part of the admissions process.
Moving toward the goal of practice-ready new lawyers will involve building consensus on what basic skills all lawyers need and how best to measure entry-level competency. Drawing on the experience of the jurisdictions that have already instituted practical skills testing as part of their admissions process will help achieve this objective. The shift toward more practice-ready testing reflects fundamental changes in the way legal services are delivered in the 21st century. As technology offers more powerful ways for lawyers to research the breadth and depth of the law, the traditional bar exam likely overemphasizes the importance of rote memorization to the exclusion of the demonstration of more relevant knowledge and skills.
A More Meaningful Entry into the Profession. In considering the changing demands of the practice of law in the 21st century and recent research on testing, and on economic stresses on law students, the Task Force recommends a novel restructuring of Michigan's admissions process. Under the new approach, law students could complete the black letter law portion of the bar exam as soon as they had successfully passed the relevant courses in law school, typically at the end of the first year. Provisional character and fitness clearance could also be accomplished at this early stage. This restructuring would allow law students to be able to concentrate on practice-ready knowledge and skills in the second and third years of law school. Testing on Michigan law and practice skills testing would take place after law school graduation.
The proposed change would not reduce the rigor of the bar examination process. Instead, it would add elements that are crucial to success as a lawyer in the 21st century. The change is also responsive to the problem of law school debt. Through this change, applicants who encountered serious difficulties with the black letter law test or character and fitness could evaluate earlier in the law school process whether to continue with the expense of law school.
More Effective Post-Admission Education. Law students and new lawyers are not alone in suffering from the forces roiling the legal services industry. Every lawyer faces the challenge of rapidly adapting to changes in the legal marketplace and the disruption created by technology. There is no dispute that lawyers in active practice require regular updating of their skills and knowledge. The modern 20th century way for lawyers to keep current was through continuing legal education (CLE) administered in classroom-type lecture or seminar settings. This model became institutionalized in 1986 when the American Bar Association adopted a resolution encouraging states to adopt mandatory continuing legal education (MCLE) as a condition of annual licensure, spurring a multi-million dollar industry that now delivers legal education content in a variety of formats.
Michigan is one of only four states that does not have some form of mandatory MCLE. Massachusetts, Maryland, and South Dakota are the others. Nevertheless, or perhaps as a result, ICLE has maintained a strong national reputation as a leader in the quality of its educational content and in pedagogical innovation.
There are two salient reasons to stick with a nonmandatory approach in the 21st century. First, there is a conspicuous absence of empirical data to support the proposition that the current MCLE model enhances attorney competence. Indeed, no jurisdiction predicates satisfying MCLE requirements upon a showing of mastery of the material. Second, a large percentage of the practicing bar in Michigan engages in voluntary CLE. In fact, many go well beyond the typical MCLE hours-based requirements.
It is not good enough to simply maintain our voluntary ICLE model as is. The need for lawyers to stay abreast of changes in the law in their areas of practice and in the application of ethical rules in a technological environment is more urgent than ever given the accelerating pace of change in the 21st century. The mandatory model has bureaucratized CLE but there is no evidence that it has advanced its acculturation. By the same token, although a large percentage of Michigan's practicing bar voluntarily engages in CLE, there is no evidence that the voluntary model has successfully nurtured a profession-wide ethic of individual accountability for keeping one's skills and knowledge current. The Task Force's vision is for the State Bar to collaborate with ICLE to embed that ethic in everyday practice to promote and provide effective, convenient online tools for assessing and maintaining competence.
Michigan is in a unique position to develop a new 21st century model of continuing professional education that recognizes that each practicing lawyer's learning needs and goals are unique and takes advantage of the role of the State Bar in collaboration with local bars in supporting members' professional development, as well as advances in awareness of the most effective forms of adult learning. Without charge, every active member of the State Bar can be provided with a basic package of professional development tools, including access to quick, up-to-the-minute online self-testing and assessment in the areas the member has identified as relevant to his or her practice and career goals.
Recognizing Specialization. The development of a new model for voluntary CLE and professional development works in concert with the recommendation for the development of voluntary specialty certification in Michigan. A specialty certification infrastructure developed collaboratively by practitioners within the specialty (bar sections are expected to play a central role), legal education experts, and regulators will provide a valuable framework for the professional development. This will provide guidance and support to the practicing legal community. Not only would specialty certification serve the public by elevating and advancing the quality of legal practice, it would also provide an important consumer service. Along with information about a lawyer's recommendations and experience, specialty certification gives prospective clients one more piece of relevant information to use in choosing a lawyer.
The Task Force recognizes that there must be more than one path to achieving specialty certification for lawyers who choose to seek it. Completion of a specialty certification program would give new lawyers seeking entry into a specialty market a way to validate readiness to practice in that area. Further, the development of specialty certification need not pose a threat to Michigan's general practitioners. Indeed, like primary care medical practice, a general legal practice is its own type of specialized work, with its own particularized set of best practices and standards, for which expertise could be demonstrated.
Listening to Voices of Change
Joan Howarth. Clinical training. (0:0:27)
Joan Howarth. Practice ready. (0:0:20)
Mwanaisha A. Sims. Five top soft skills. (0:1:02)
Wayne State University Transnational Law Clinic. (0:0:46)
Don LeDuc. Need new testing method. (0:1:50)
What 21st Century Task Force & Committee Members Had to Say
"I am most excited about the proposals pertaining to the sequential admission process. Limiting the multistate to first year courses could get that part of the bar exam done early. The rest of law school would focus on the skills needed to practice law well, with practical testing before admission. This simple but bold change in sequence could transform legal education at no additional cost to the student. No wonder I'm excited."
Dean Joan Howarth, Regulatory Committee
"The innovations recommended by the Task Force of licensing practice ready lawyers track the needs being expressed by legal employers in a nationwide survey that Michigan lawyers participated in the summer of 2015. The soft skills most valued by legal employers for new lawyers entering the legal marketplace are the need to maintain client confidences, punctuality, an ability to honor professional commitments, treat others with courtesy and respect, respond promptly, and maintain a strong work ethic."
Mwanaisha A. Sims, Task Force Member
"The shifting needs of legal consumers are opening up opportunities in the legal marketplace for members of our profession that require understanding and competencies in an array of areas, such as technology, the business of law, process improvements, managerial skills, computer science, mathematics, and economics. This blend of skills has been described as the 21st Century T-shaped lawyer with deep legal expertise and a breadth of knowledge to collaborate across many disciplines, such as technology, business, analytics, and data security."
Patrick M. Ellis, Regulatory Committee
"I am thrilled about the enhanced use of technology to deliver fabulous systems which allow the public, lawyers, and other types of legal professionals to gain access to legal information and high quality "just-in-time" training and education. Many of the innovations presented in the Task Force's work product open us up to really looking at what's going on in the field of education and developing models that will permit lawyers to continue to deliver high quality legal services, and legal consumers to find legal information, and lawyers to meet their legal needs."
Lynn P. Chard, Practice Committee
"For new lawyers, there is a steep learning curve towards the business of lawyering. Professional development for new attorneys should be experiential and meaningful towards gaining that knowledge."
Aaron P. Sohaski, Task Force Member