America Should Put Its Law Students to Work
Scott Sissel
Final Draft
November 13, 2002
I. Consequences of the Problems in our Legal System.
II. The Severity of the Major Problems.
A) The Costs for Standard Legal Work are Outrageous.III. Alternatives for Solving these Problems.
B) Our Attorneys are not Working on Pro Bono Cases.
C) Law Students Lack Problem Solving Skills.
D) Law School Debt is Out of Control for Students.
IV. America Should put its Law Students to Work!
A) The Impact that this will have on our Problems.
B) The Business Operations.
C) The Specific Impact on our Legal Problems.
V. Constraints on the Business.1) Costs for Legal Work Will be lowered.
2) Law Students will Work for Low-Income Individuals.
3) Law Students will Receive Real World Experience.
4) Law Students will Gain Problem Solving Skills.
5) Law Students will have Less Debt.
A) The Current Law on Students Engaged in Practice.VI. Findings and Conclusion of this Entrepreneurial Venture.
B) Change the Law if it does not Allow for this Type of Activity.1) Law Students can do the Work.
2) The Venture can be a Part of the Law School Curriculum.
3) Collaboration with the Law Schools Faculty.
4) Compensation for the Law Students.
5) Law Students cannot Expect the Law Firm to Protect Their Own Interests as well as those of the Client.
6) The Law Students Cannot Act Without the Consent of the Supervising Attorney.
Many of the problems with the American legal system are not without consequences.
* Elderly individuals do not have sufficient resources to pay expensive attorneys fees to set up their wills and trusts.All of these problems consequently force elderly individuals to die without a will, give the poor less access to our legal system, and prevent recent law graduates from practicing the kind of law that they would like.* Poorer Americans do not have access to our legal system due to its high costs.
* Law students are graduating from law schools with a record amount of debt, forcing them to go to the highest bidder instead of public service.
* Market pressures have forced law firms to limit the number of hours spent on pro bono work.
* Most law students do not have enough real world experience to appear in court, to write out a simple will or to even set up an informal business transaction.
There is, however, a solution to this problem; an entrepreneurial solution that would greatly improve the American legal system, while giving its initiators a tremendous monetary reward for thinking outside the box.
In order to better establish the necessity for a change in our legal system, the severity of the problems must first be demonstrated. This paper will establish the severity of the problems in our legal system with the aid of research, statistics and opinions of individuals of stature from the United States legal system.
A) The Costs for Standard Legal Work are Outrageous.
Throughout the past two decades the prices charged for standard legal work for individual clients have sky rocketed. This has forced many individuals and legal services advocates to seek out alternatives to attorneys. Legal services advocates are "increasingly turning to alternative delivery models such as hotlines, web pages, and pro se clinics as vehicles to reach more clients" (FN 1) These alternatives often do not provide the kind of representation clients deserve.
After the first year of law school, most law students know more about the law, from how to research the law to how to act on behalf of a client, than virtually all persons without that training. Because many of the poor and underprivileged are currently facing the dreadful alternative of going to web pages and hotlines, shouldn't our government of laws offer another alternative for these individuals?
B. Attorneys are not Working on Pro Bono Cases.
The United States places an ethical and moral obligation upon all attorneys to work for those in legal need, not just those who can pay them. The State of Iowa, in Cannon 2 of Chapter 32 in the Iowa Court Rules of bar admission and conduct, is alike the majority of the other States in that it says that "a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available" to all those in need of legal services. However, in the context of Pro Bono work, American attorneys have not adhered to these standards of professionalism because less than one percent of all of their time, in the aggregate, is given to Pro Bono work. "(Pro Bono work) is estimated to comprise about 6,000 full-time equivalent lawyers, (which is) about seven-tenths of one percent of the whole body of American lawyers". (FN 4)
The bar in each state is required to adhere to a diverse set of ideals. These set of ideals include the equal access and equal protection ideal that "builds on the fundamental nature of legal rights as a means of individual and group self-realization, and aims to guarantee legal services to the underrepresented, poor, and oppressed segments of society". (FN 2)
Many idealistic law students want to believe their oaths to the State in which they will be part of the bar. However, the economics of law practice generally do not allow them to serve these segments of society as much as is necessary. In one view of the American legal system, "ideals are cast as a force working against market pressures assisting lawyers to adhere to standards of professionalism in light of increasingly threatening business constraints". (FN 3)
There is no doubt that all attorneys must make a reasonable living from their practice in order to continue in the occupation. However, attorneys in the legal community recognize that they are competing against one another for billable clients and this has forced some attorneys to bend their obligations by not taking on pro bono work.
As of 1995, approximately eighty percent of the civil legal needs of the poor are unmet. (FN 5) As Associate Supreme Court Justice Sandra Day O'Connor states, "there has probably never been a wider gulf between the need for legal services and the availability of legal services". (FN 6) All of the currently available alternatives to expensive legal representation, including public interest groups, such as legal aid, legal services, public interest organizations, and small private sector public interest firms, cannot even begin to meet the needs of the public. "The entire legal services for the poor/public interest law sector is vanishing". (FN 7) The majority of our lawyers are only serving the needs of the wealthy. Even former President Jimmy Carter stated that "ninety percent of our lawyers serve ten-percent of our people". (FN 8)
C. Law Students lack Problem Solving Skills.
Law students are not learning how to be problem solvers in the real world context from their law school. This is a huge problem in our legal community because the American Bar Association's MacCrate Report put "problem-solving at the top of its list of ten skills essential to lawyering, even placing it ahead of the skills of Legal Analysis and Reasoning." (FN 11) Law schools are not teaching their students how to be problem solvers, except in a setting where their own problem solving skills are not truly tested. Therefore, law students receive no "true feedback" from their judgment as it applies in a real world context.
D. Law School Debt is Out of Control for Students.
The last major problem in the American Legal system is that law students incur way too much debt over their law school careers. This forces the majority of law students to take the highest offer out of law school instead of taking a low paying public interest job.
The majority of law students incur debt through the guaranteed federal loan program. This program guarantees graduate students up to $18,500 per year. According to Bruce Neckers, "It would be tragic if the success of the guaranteed loan program turned out to be the single-most important event in keeping large numbers of potential law students from reaching their goals."(FN 11) Due to the high amount of debt that the students receive each year from the Federal government, they are almost required to take higher paying jobs than public interest jobs because they have to pay back these loans that that accrue. Mr. Robert Hirshon, the President of the American Bar Association for the 2000-2001 session, added to this finding in the November 2001 edition of the ABA Journal with the following statement. "Because of the debt, more and more graduates find themselves limited to working in large private law firms, thus surrendering any possibility of taking on socially critical and experience-rich positions in government or legal-service offices, or other important but lower-paying jobs." (FN 12)
The amount of debt law students incur over their three years of law school differs from person to person. However, the Law School Admissions Council, has warned that students entering law school in 2002 may be faced with post-law school debt that could exceed $140,000. (FN 13) According to L magazine the average amount of law school debt for Midwest schools is $62,700. Due to the fact that student loans have increased and are projected to continue to increase between 8 and 12 percent per year by the LSAC, law students will be even more pressured to take on big firm work instead of public work.
All of these problems are not without solutions. Legal scholars have suggested possible solutions such as requiring law school to be only 2 years long, retiring the debt owed to the government if you work in the public interest sector and even requiring a certain number of pro bono hours for all practicing attorneys. But these possible solutions have not become a reality.
The best alternative available is to allow our law students to represent clients, especially and specifically poorer individuals. Law students, who are trained from the beginning of law school to think like a lawyer should be allowed to and encouraged to use their legal education for the good of society, while making a reasonable wage for themselves. For example, if a low-income family is having a dispute with their landlord, their current access to the legal system is extremely low and probably limited to pro-bono work and web pages. A law student, with limited actual knowledge of the applicable law, would be able to do the family a much better service, for less than half the cost of an attorney, than any hotline or webpage.
The solution that this paper recommends to the entire American legal bar would substantially impact these problems. In order to give law students the ability to come out of law school with real world experience, without a huge debt, as well as giving society the benefit of another legal alternative, America should put its law students to work!
A) The Impact that this will have on our Problems.
This entrepreneurial business will give lawyers the opportunity to serve all of their clients, as well as poorer clients that otherwise could not hire them, because they will be making more money from their time spent supervising cases than if they were practicing alone on cases.
B) The Business Operations.
This entrepreneurial business
would be operated very much alike a typical small law firm or clinic, but
would differ in the fact that the majority of the work would be done by
law students with attorneys supervising them. The business itself
would be owned by attorneys who are there to supervise the law students'
work prior to allowing it to be seen outside of the firm.
The firm would be setup
similarly to a law school clinic. Each attorney would supervise between
seven and ten law students. The law students would be in direct contact
with their clients and would be allowed to give them advice only after
it is cleared from the practicing attorney. The law students would
only be allowed to practice in areas of the law such as simple misdemeanors,
standard wills and other work that does not require specialization, unless
the student is shown to be competent in other work.
Opportunities for law students to work on cases outside of standard work will be given only if competency is determined by the supervising attorney. The supervising attorney will be allowed to reevaluate the competency of their students to work in the other areas of the law every six months. If the law student has successfully completed the classes that pertain to a certain case or show other evidence of competency, the student will be able to work in that area under the supervision of the practicing attorney. Students will be paid an hourly rate, between twelve and twenty dollars an hour, directly by the law firm. The law firm will be allowed to accept cases on behalf of the students only if the work is considered to be reasonably non-complicated and only if the work is coming from either lower-income individuals or if it serves the public interest in some way.
The economic analysis of this business also has a tremendous amount of promise for success. As each practicing attorney will be supervising the equivalent of 7 to 10 law students, the amount of money that the firm can bring in will go up exponentially even though the hourly rate that clients are paying will be slashed in half.
Clients will pay the firm $50 to $60 dollars an hour for the law students' time. The law students will be given an estimated amount of time that each project should take and will be required to submit time sheets to the clients. All meetings between the supervising attorneys and law students will be billable at the law student's rate and the practicing attorneys will only bill his normal rate for projects that require a substantial amount of review or specialization.
At these rates, each practicing attorney will be able to make approximately twice as much money, while costing the clients half the amount. Taking 50 dollars per hour times 8 law students less their pay, at $15 dollars an hour, gives the law firm $280 dollars of income for every supervising attorneys hour. As an example, Iowa City attorneys generally charge between $90 and $150 dollars an hour for their time, depending on the type of work they are doing. A great deal of this work could be done by a law student at half the rate per hour and supervised by an attorney for no added cost while making the supervising attorney between $220 and $280 dollars per supervising hour. These dollar amounts represent more than twice the amount most lawyers make on an hourly basis. Therefore, this entrepreneurial business not only lowers the costs for poorer individuals to receive representation, it more than doubles the income of the supervising attorneys.
C. The Specific Impact on these Problems.
This business will diminish many of the problems associated with the legal system in the United States.
1) Costs for Legal Work Will be lowered.Lower-income families will have another alternative to paying the huge legal fees that are prevalent in the American legal society. They will have the opportunity to pay our students, and the attorneys that supervise them, less than half of the current costs for legal representation.
2) Law Students will Work for Low-Income Individuals.The work that the law students will be directed and supervised on will only be for low income families or some form of public service. Although the students will not be doing Pro Bono work, per se, clients who are poor or oppressed will have the ability to hire these students to work for them because the costs are less than half of that which lawyers would charge. Therefore, individuals who cannot get attorneys to work for them on a Pro Bono basis and cannot receive true representation from other alternatives will be able to receive the businesses services.
3) Law Students will Receive Real World Experience.The students would be more prepared for entering the legal community because of their real world experience in the firm. They will gain a tremendous amount of insight on how to write memos, how to file certain claims as well as how to communicate with their clients.
4) Law Students will Gain Problem Solving Skills.The law students would gain a substantial amount of training on how to solve real world problems. Their cases would not be a review of some past trial or case. Nor would they be drilled on the distinction of the law from prior cases. The law students would learn how to solve the present problems for their present clients.
5) Law Students will have Less Debt.Law students will come out of law school with less debt, sometimes a lot less debt depending on the number of hours worked. For instance, if the law student from the prior example was to work fifteen hours a week for eight months out of a year in Iowa City, he would take home approximately seven thousand dollars a year, not including summers. This in turn would lower the average amount of debt that law students have upon graduation from approximately sixty two thousand to forty eight thousand dollars. This would give law students the ability to follow their ambitions of working for public interest firms or for the government because they will not have as much debt to pay back coming out of law school.
The constraints to this entrepreneurial venture could render the concept impossible to initiate. However, I believe that the current prevalent law across the United States does allow for this type of firm. But if it is determined that the law does not allow for this idea to become a reality, than the law should be changed. Public policy dictates that the law should be changed if the benefits far outweigh the costs to society. Due to the fact that the only cost to society is the allowance of law students to engage in the practice of law, which is minor because it is only a timing issue, the law should be changed to allow this venture.
A) The Current Law on Students Engaged in Practice.
Currently, Iowa allows law students to engage in the practice of law only for misdemeanors. "A law student enrolled in a reputable law school...may... engage in the practice of law...(which) shall be confined to misdemeanors and shall be under the direct supervision of licensed Iowa Counsel." (FN 15) Although the interpretations of this rule have never come to trial, the general idea is that law students may not present themselves to the court as engaged in the practice of law unless their under the direct supervision of an attorney. This type of firm is not in conflict with this section in Rule 31.15 because the law students will generally not be in court at all and will never be in court without a supervising attorney.
B) Change the Law if it does not Allow for this Type of Activity.
If it is deemed, at a later point, that this venture is in conflict with Rule 31.15 than the rule is absolutely preposterous and should be changed.
1) Law Students can do the Work.After the first year of law school, students are generally capable to act, think and work alike other lawyers. Given the fact that each law student will be directly supervised by a lawyer, who will be responsible for all approved communications outside the firm, the law should allow this type of firm to work on all cases that are not extremely complicated in nature. The law should also reflect upon the knowledge that the potential benefits that students will receive from this activity will far outweigh the minor costs.
2) The Venture can be a Part of the Law School Curriculum.Iowa Rule 31.15 also states that the law school must approve of the practice by the student and make it part of an educational program. "No student may engage in the practice of the law or appear as counsel in any court of this state... unless such practice or appearance is part of an educational program approved by the faculty of the student's law school." (FN 16) Therefore, the school must approve of the student working for the firm and must also give some sort of academic credit for the work. The best way to achieve compliance with this rule is to have law schools approve of the firm that the student is working for and give them one hour of credit per semester for the work.
This credit hour could be given only if the work is reviewed by the faculty or if it is directly approved as academic in nature. Therefore the student could either write up a twenty page paper on his experiences or the law school could approve of the work without any direct tie to the school by intrusting the supervising attorney with the authority to supervise the educational value of the work.
3. Collaboration with the Law Schools Faculty.Another way that the law could be changed to allow this type of business operation is to allow outside attorneys to collaborate directly with the law schools faculty on the students progress. If it is deemed that the nexus between the law school and the law firm is not enough to be considered "approved and supervised" by the law school, than the law school should supervise the individual students with the law firm. This possibility could easily be set up by forcing the student to write memo's directly to a faculty member on certain aspects of cases that they are currently working on. If the faculty member believes that the student is receiving a substantial enough amount of education from the firm, than the school can give the student one hour or more credit for the work completed.
4. Compensation for the Law Students.The Iowa Rules, which are similar to those of all the other states, also stipulate that payment to law students must be from the general compensation funds of the law firm. However, these rules would not directly affect this business as long as the students work on an hourly pay basis.
5) Law Students cannot Expect the Law Firm to Protect Their Own Interests as well as those of the Client.The next problem with this type of firm is that the lawyers may be perceived by the law students as their personal attorneys who protect their own interests as well as those of their clients. "The situation might be compared to one in which a law firm associate, troubled by a case on which she is supervised by another lawyer, seeks advice from a senior lawyer in the firm. Absent some agreement to the contrary, she could not reasonably expect the senior lawyer to act as her own lawyer with undivided loyalty to her." (FN 17) But this is not the case in our situation. Our students are not attorneys and they quite reasonably may expect their supervising attorneys to represent their own best interests as well. Therefore, any firm that initiates this business formation would be required to have their students sign a release for the firm. This release would state that the firm and any of its practicing attorneys will not represent any of its law students in any manner.
6) The Law Students Cannot Act Without the Consent of the Supervising Attorney.The last problem associated with the hiring of non-lawyers is that the law students may act without the knowledge or consent of the supervising attorney. Any of such acts may give the actual client reason to sue the law student as well as the law firm, and may give rise to disbarment procedures. The solution to this problem is to set up agreements between the law student and the law firm that states that the law student will not act without the full knowledge and consent of the supervising attorney, even in an emergency situation. The agreement would also stipulate that in a situation where the law student has acted without the full knowledge and consent of the supervising attorney, the law student is wholly responsible for all damages of the firm and must indemnify the firm as such.
VI. Findings and Conclusion of this Entrepreneurial Venture.
This paper purports that there is currently an entrepreneurial solution to the many problems in our system of justice. Problems such as high student debt, few alternatives for low-income families to legal services, and the lack of real world experience by law students. These stated problems are just a few of the many areas that can be positively influenced by the integration of this entrepreneurial business in the legal world.
Not only does this business positively influence our legal society, it is also economically viable. Attorneys who supervise law students could possibly double their actual income. Law students can subsidize their loans from the federal government by working for these law firms. But most importantly, the poor and oppressed segments of our society will receive the legal services that they deserve at less than half the cost of a full-time attorney.
FN1 "Unbundling and law school
clinics: Where's the pedagogy?", 7 CLINICLR 341, Mary Helen McNeal
FN2 "An Unlikely Knight
in Economic Armor: Law and Economics in Defense of Professional Ideals",
Eli Wald, 31 Seton Hall L. Rev. 1042
FN3 ID
FN4 "Old and in the Way",
Marc Galanter 1999 Wis. L. Rev, 1104-05)
FN5 "In the Law Firm and
Public Good", Robert A. Katzman, 1995)
FN6 ID
FN7 ID
FN8 "No Contest: Corporate
Lawyers and the preservation of Justice in America", Ralph Nader and Wesly
Smith, 1996
FN10 "Should Law Professor
Practice What They Teach?", South Texas Law Review, Graham Brown, 42 S.
Tex. L. Rev. 316)
FN11 "The lifetime costs
of a legal education", Bruce Neckers, 81MAR MIBJ 10
FN12 "Biting off what they
can chew: Strategies for involving students in problem solving beyond individual
client representation", 8 Clinical L. Rev. 405
FN13 President Hirshon,
Nov. 2001 edition of the ABA Journal
FN14 "Educational Mortgages",
Tiffany G. Chase, 50 LABJ 22
FN15 Rule 31.15 of the Iowa
Rules of Court
FN16 ID
FN17 "Should Law Professors
Practice what they Teach?", Graham Brown, South Texas Law Review, 42 S.
Tex. L. Rev. 316, P.5