The Buck Stops with the American Inns of Court
The Bencher—May/June 2018
By Hon. William C. Koch, Jr.
My own education and training to become a lawyer illustrates the tension between the legal academy and the practicing bar’s roles in preparing students and new lawyers to become successful and ethical legal professionals. Despite Charles Atlas’ insistence that “dynamic tension” builds strength, it is my thesis that the tension between academics and the practicing bar continues to weaken our noble profession. The buck passing needs to stop and we should redouble our efforts to collaborate to prepare new attorneys for the practice of law.
Once upon a time, the members of the bench and bar were responsible for preparing those who aspired to practice law. The aspirant would read law under the tutelage of an experienced lawyer and when the time was right would undergo an oral examination by a panel of practicing attorneys. Success on this exam opened the door to the practice of law.
For a constellation of reasons, this process for preparing new lawyers fell into disuse during the decades surrounding the turn of the 20th century. The advent of law schools, American Bar Association (ABA) accreditation and standardized bar examinations administered by state licensing authorities transformed the focus of legal education. The study of law became a predominantly academic exercise. Training in the practical competencies necessary for a successful law practice was pushed aside.
And so it was when I set out on the path to become a lawyer a month or so after Neil Armstrong set foot on the moon. Even though I did not realize it at the time, my legal training would be provided in three hermetically sealed stages. The first stage consisted of my largely academic pursuit of a J.D. degree—the burnished replacement of the LL.B. degree. For three years, my professors used the Socratic method, sometimes like a blunt instrument, to train me to “think like a lawyer.” It was not in their job description to acquaint me with the skills needed to pass the bar exam or to practice law professionally and successfully.
The second stage of my preparation focused on passing the bar exam. Passing the bar exam is the only way to enter the legal profession, even though it has never been a reliable predictor of a person’s ability to practice law successfully. It was quite clear to my classmates and me that our law school considered its task completed when we received our diplomas. We were on our own as far as preparing for the bar exam was concerned. Accordingly, virtually all of us enrolled in a nine-week bar preparation course offered by a group of practicing lawyers. The twin purposes of the bar review course were to reintroduce us (or in some cases introduce us) to the basic elements of the subjects that would be tested on the bar exam and to familiarize us with the nature of the exam.
The third and final stage of my preparation to become a lawyer began after I passed the bar exam. I stress “began” because I have come to understand that successful lawyers never stop learning. On the day I received my law license, I did not have a well-formed vision of myself as a lawyer, an appreciation of the role lawyers played in society, or even a partial mastery of the practical competencies I would need to be successful. This final, and most important, stage of my legal education has been presided over by experienced lawyers and judges who have taught me—and continue to teach me—the things legal professionals should know. These men and women have passed—and continue to pass—along skills and values in much the same way their predecessors did back in the “reading law” days.
Legal education and the legal profession have changed significantly in the past five decades. However, despite the MacCrate Report’s call in 1992 for legal educators and the practicing bar to recognize that “they are engaged in a common enterprise,” reaching a consensus regarding their respective roles in this common enterprise continues to be elusive. Law schools and the practicing bar still lack a shared understanding of their roles in preparing students to enter the legal profession and in the continuing education and mentoring of new lawyers.
In the absence of a shared understanding of their roles and responsibilities, both legal educators and the practicing bar have been passing the buck regarding their responsibility to prepare students and new lawyers for professionally rewarding and financially sustainable careers. Even though most law students aspire to be practicing lawyers and not legal academics, many law schools have found that increasing the number of skills courses in their curriculum has proved to be cumbersome, expensive, and risky.
Skills training is more resource-intensive than lecture courses or seminars, and tenured faculty members, many lacking recent practice experience, are hesitant to allow skills training to displace academic courses. In addition, curriculum reform has been held back by the ABA accreditation requirements and the pursuit of U.S. News & World Report rankings which, in 2014, the ABA Task Force on the Future of Legal Education found to “uncritically confuse higher cost per student with higher educational quality.”
Despite uncertainty regarding the value and content of a three-year curriculum, many law schools believe that the practicing bar does not understand the practical impossibility of teaching students to be truly practice-ready in three years and that the legal profession does not fully appreciate the benefits that flow from academically strong law schools. Accordingly, many legal educators resist any effort to transform law schools into trade schools and insist that the responsibility for teaching lawyering skills should be assigned to the practicing bar.
On the other hand, many practicing lawyers believe that their law school education left them lacking the skills needed to be competent entry-level practitioners. They are concerned that law school students are graduating without the skills required in the real world of today’s law practice. The bar also points to a practical impediment to providing new lawyers with the on-the-job training: Clients today are disinclined to pay for training young lawyers and insist that this expense should be borne by the law firms themselves.
This impasse between the academics and practitioners leaves law students and new lawyers in a predicament. The increasing cost of a legal education has saddled many law students with significant law school debt. Few benefit from the educational and mentoring environment of a large firm because a great majority of today’s private-sector legal jobs are with small or mid-size firms or are solo practice. In addition, many graduates and new lawyers have limited opportunities to receive training or develop the expertise needed to be successful.
Current circumstances should compel all the constituencies of the legal profession to return to the MacCrate Report’s conclusion that “the skills and values of a competent lawyer are developed along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experience and continues throughout a lawyer’s professional career.” Recently, both the ABA’s Committee on the Professional Education Continuum and the New York City Bar Association’s Task Force on New Lawyers in a Changing Profession have called for:
- Greater emphasis in law school on programs that develop the skills and substantive knowledge needed to practice law ethically and successfully,
- Strong transition programs for new law school graduates and inexperienced attorneys, and
- A renewed focus on the early years of practice and ongoing professional development.
The Committee on the Professional Education Continuum has pointed out that moving from passing the buck to recognizing shared responsibilities to the profession will provide an opportunity for a strengthened relationship between legal educators and the practicing bar. This collaborative relationship will promote “a shared understanding of the skills necessary for new practitioners” and a new willingness to share the “responsibility for the continued education and mentoring of new lawyers,” according to the committee. The Task Force on New Lawyers in a Changing Profession recognized that beyond law schools increasing their emphasis on programs that prepare students to practice law, experienced practitioners must volunteer to provide instruction in problem-solving and practice-oriented law school courses, supervise clinical and work experience programs, and mentor new lawyers.
The American Inns of Court is the most promising vehicle for enabling law schools and the practicing bar to collaborate to better prepare law students and new lawyers for the challenges of a modern law practice. The American Inns of Court is the fastest-growing international legal organization in the United States with nearly 400 active or forming Inns in 48 states. These Inns have more than 30,000 active members, including judges, practicing lawyers, law professors and approximately 1,900 law students. Currently, 207 Inns report a relationship with one or more law schools.
Two American Inns of Court illustrate the collaborative potential to educate law students and new lawyers. In 1990, the Wake Forest University School of Law, located in Winston-Salem, North Carolina, founded the Chief Justice Joseph Branch American Inn of Court. The Inn is housed at the law school, and over 30 percent of its members are law students. The Inn’s meetings promote legal skills, professionalism, and ethics by enabling the students to interact with federal and state judges and senior members of the bar.
In 2011, Belmont University College of Law American Inn of Court in Nashville, Tennessee, was created when the law school opened its doors. All students become members of the Inn during their first year of law school. The lawyers and judges who join the Inn agree to mentor two or three law students. The mentors are expected to introduce their mentees to the practice of law by inviting them to observe trials, client interviews, depositions, closings, mediations, and other professional activities. The mentorships also assist the mentees with their transition to law school, enable the mentees to make connections in the local legal community, and support the mentees by providing advice on career options and practice-related questions. Many of these mentorships continue throughout the mentee’s study of law and into the early years of the mentee’s practice.
Woven into the fabric of the American Inns of Court is the understanding that the education of legal professionals is a continuum that begins in law school and continues throughout a lawyer’s career. For close to four decades now, the American Inns of Court has demonstrated that collaboration between legal educators and practicing lawyers is not only possible but also efficacious. The education and training of law students and new lawyers that has been difficult for law schools and practitioners to provide on their own is being provided collaboratively through membership in an American Inn of Court. The impact on the profession is already being felt where Inns of Court exist. This impact will be magnified by strengthening the existing connections and developing new ones between law schools and the American Inns of Court and by increasing the number of Inns to enable more law students, new lawyers, and experienced members of the bench and bar to benefit from being an Inn member.
Hon. William C. Koch, Jr., is president and dean of Nashville Law School. He is vice president of the American Inns of Court and president of the Harry Phillips AIC in Nashville, Tennessee.