Robert J. Rhee: Theory and Practice, and the Law School Firm
Recently, Brad Borden and I wrote a paper titled “The Law School Firm” (forthcoming South Carolina Law Review). The article idea is simple: Law schools should own and operate affiliated law firms where graduating students go to get trained in the practice of law for a fixed duration, similar to a judicial clerkship or analogously a residency for new doctors. The law firm would be run by senior attorneys who develop books of business, and it would be economically sustainable. Since the article’s public release, it has garnered significant attention. We have had reporters, students, professors, law school administrators, lawyers, law firms, and professional consultants comment on or inquire about the article. The broad attention to our work speaks to the urgency of a national dialogue on legal education reform. I believe that the legal profession is not just riding the trough of a business cycle. Fee-paying corporate clients are learning that subsidizing the training of +$100,000 junior associates who provide little value doesn’t make much sense. Even for me, would I pay a modest $100 per hour for a newly minted law graduate to handle a relatively important personal legal matter? No, I would not.
The premise of our paper is that legal education and the legal profession are more disconnected than they should be. Law schools can do a better job of providing practical training of lawyers. As I have written elsewhere, training is not free. The costs of training and of inadequate training must be borne by someone—by clients, law firms, law schools, or ultimately law students. Law schools are increasingly being scrutinized on whether they are satisfying the training function.
Traditionally clinics have been seen as the answer. While they are a valuable component of legal education, they are not a complete answer. They suffer from two limitations, one financial and other pedagogical. First, clinics require a low faculty-to-student ratio to be a meaningful experience, which means that they are very expensive to run and operate. Full-time law professors are expensive. If we rely on adjunct faculty, is a clinic simply an inferior substitute for full-time practice just a short year away? And does the efficacy of part-time clinical training expire upon the first six-months of full-time practice? In an era of increasing tuitions and student debt, law schools must seriously consider the cost implication of starting, operating, and expanding clinics because those costs are ultimately funded on the backs of student tuition. Second, clinical experience, perhaps 3 to 12 credits, is not an immersion in the practice of law. The steepest part of the learning curve occurs when one is immersed in an activity. Clinics are highly structured, involve limited number of hours by the students, and are ultimately law courses with grades and durational expiration. Clinical experience misses essential aspects of professional practice—long hours of concentrating on day-to-day problems, learning the substantive law of the specific practice, figuring out how things work, thinking about and executing solutions to problems, becoming independent in tasks, learning to manage people up and down, learning to manage projects and complex tasks, understanding institutional dynamics, and lastly thinking about the business aspect of the professional. All of these occur when problems and clients are presented in a steady flow of day-to-day routine, and the young professional must learn to solve problems based on perseverance, wits, and smarts.
Only an immersion into the practice can adequately provide such training. The Catch-22 is obvious: only practice can adequately train lawyers to be “practice ready” and yet increasingly no one wants to bear the burden or cost of such training. Law schools are confronted with, if not a mission impossible, a mission very difficult.
This is where the law school firm comes in. The model recognizes a sharp distinction between the functions of theory and practice. Law schools are the gold standard of teaching students how to think about the law, which can range from the abstract level of academic theory to the doctrinal policy concerns of lawmakers. The scholarship mission of law schools fit perfectly within this traditional function of theory, and the research mission of a research-oriented university, which is where most law schools are housed. The ability to think critically about legal issues (the mantra of “thinking like a lawyer”) is indispensible, but alone it isn’t enough. One must convert the intellectual skill of critical thinking into the practical skill of implementing solutions for clients.
Professor Borden and I have proposed that the law school firm should provide the necessary training. As we discuss in the article, the law school firm has several attributes: (1) economic sustainability, meaning the law school firm must make revenue that at least meets expenses, (2) senior attorneys who generate business for the firm; (3) practice areas that earn fees sufficient to cover expenses; (4) strict “in and out” fixed duration positions for trainees who are paid low salaries commensurate with their low level of knowledge and skill. Although economic sustainability is the foundation, the purpose of the enterprise is educational and service to the profession. Training will entail not only teaching the technical aspects of specific practices, but also professionalism. The law school firm is the vehicle to teach best practices, and as a part of the professional mission to provide access to the legal system for underprivileged and underserved markets through sustained pro bono and subsidized legal work.
A hard distinction between theory and practice does not mean a segregation of the two. Clinic can introduce law students to the practice of law, particularly in public service oriented practices, and thereby serve as a helpful bridge to practice; but such education and public service are funded by student tuition and so student benefit is a threshold hurdle for their raison d’être. The law school and the law school firm can interact in ways that are mutually beneficial in the areas of research, policy development, and continuing education. The existence of a law school firm can facilitate a restructuring of law schools whereby legal education is conceived as two parts: first, a solid grounding in theory and the academic study of law, taught by research-oriented law faculty; second, a handoff to senior attorneys who are dedicated to education and the profession, and who are committed to a business model where revenue and profit are a means rather than an end. Lastly, a law school firm can distinguish law schools beyond the current and most important distinction based on the U.S. News annual rankings. Some schools can be known to have an affiliated law firm specializing in particular areas of law, and importantly can provide opportunities to acquire practice experience therein. Such practical opportunities can be the basis for additional distinctions among law schools, where currently the material distinctions are rankings, financial cost and aid, and to a lesser extent geography.