By Jonathan Hooks, Christian & Small Associate
The fine folks over at Slate have recently published two interesting articles – one trumpeting apprenticeships over law school and another promoting a uniform bar exam. Given the oversaturation of the national and local legal markets, ideas to reform the current state of the legal profession fascinate me.
Should a prospective lawyer be able to avoid law school? You can certainly see situations that might warrant it. Some aspiring attorneys, for instance, just want to handle criminal cases or be a tax lawyer. For them, law school can certainly seem like a waste of time. An apprenticeship would seem a more useful and efficient means to learn a particular legal practice of interest. But what if an apprenticed tax lawyer later decided to handle a completely different practice area, such as criminal law? States must ensure that a professional it licenses as a lawyer has some minimum knowledge to practice as well as a traditionally-licensed lawyer.
At the same time, the legal market is fraught with risk. Most students enter law school with little more than hope … and debt. They then compete with their peers not merely for grades but for clerkships and jobs. Even clerkships are an exercise in risk mitigation for law firms, who have as many as two summers before committing to a particular hire. While the law school model is not broken, the high cost and significant risk posed by the market today certainly justifies some rethinking.
Perhaps one solution might be to turn back the clock a bit, and make use of one of the driving forces behind the trend toward apprenticeships. Imagine if prospective law students and law firms began connecting and communicating before law school. Law firms with the resources could even get ahead of the game by locating talent, and paying the student’s tuition in a bid to secure the student’s employment after law school. For some firms, this sort of arrangement might even result in a savings over expensive clerkship programs. There would be tradeoffs to this approach, but there are other, arguably similar, tradeoffs to the prevailing model.
Slate also published an article promoting a uniform bar exam (UBE) as an alternative to the traditional state bar exam, which was described as an “outdated, expensive licensing scheme that prevents mobility.” I cannot agree that state bar exams are “outdated,” but again I see room for improvement.
Nine years after being licensed in Alabama, I took the Florida bar exam and obtained my license to practice there. I spent a considerable amount of time studying for each state’s exam – the vast majority of which was spent trying to memorize the breadth of the “multistate” law that dominates many states’ exams. For Florida, that meant spending most of my time trying to regurgitate the exact same law as nine years before. My concentration on those topics necessarily took away from the time available to memorize the Florida-specific distinctions that would be tested on the exam.
The proposed uniform bar exam addresses one of those concerns, by allowing one “round” of the multistate bar exam to suffice for all states. To the extent states remain free to adopt the UBE while testing prospective lawyers on the state-specific topics, I believe that would be a step in the right direction. Of course, many states are less concerned with qualifying lawyers and more concerned with limiting the supply of lawyers licensed for practice in that state. States that currently require bar exams – such as Florida, California, and New York – will probably always require the full bar exam, as much as a barrier to entry as a test of qualifications.
Both of the Slate articles address concerns that ultimately relate to the spiraling costs of legal education and the possibility of insufficient return on that investment. Those concerns are valid and deserve intelligent discussion and consideration from those of us in the legal community.