As new students are diving into life as 1Ls and recent graduates are awaiting their bar results, working lawyers continue to soldier on in a changing and growing profession. Legal ethics scholar Deborah L. Rhode, author of The Trouble with Lawyers, and law professor Benjamin H. Barton, author of Glass Half Full: The Decline and Rebirth of the Legal Profession, joined us to chat about a few hot topics relating to the practice of law, including education, diversity, happiness, and the future. We considered the question: Is the glass half full or will trouble for lawyers prevail?
With various proposals hoping to overhaul the standard law education, which do you think include the most viable options?
Deborah L. Rhode: The most important reform in legal education would be to change accreditation standards to allow schools to provide one-year, two-year, and three-year degrees, with limited licensing for those who choose to pursue an education shorter than the standard education. This change would allow diversity in light of the different legal tasks that lawyers offer and the different missions of law schools. The current one-size-fits-all structure stifles innovation and leaves many students both under- and over-prepared to meet societal needs. Graduates are overqualified to offer many forms of routine assistance at affordable costs, but are often underqualified in practical and interdisciplinary skills. Accreditation structures have failed to recognize in form what is true in fact. Legal practice is becoming increasingly specialized, and it makes little sense to require the same training for a Wall Street securities lawyer and a small-town family practitioner. Three years in law school and passage of a bar exam are neither necessary nor sufficient to guarantee proficiency in many areas where needs are greatest, such as uncontested divorces, landlord-tenant matters, immigration, or bankruptcy. The diversity in America’s legal demands argues for corresponding diversity in legal education.
Benjamin Barton: Law school should be much cheaper—via shorter programs, lower cost instruction, or fewer administrators. Between 1985 and 2011, law school tuition rose more than 1000 percent for in-state residents at public institutions and more than 420 percent at private institutions. Indebtedness has also skyrocketed. In just the last decade, the average amount of law school debt rose from $46,499 to $75,728 at public schools and from $70,147 to a whopping $124,950 at private law schools. Full freight at some law schools can now run over $250,000 including living expenses. These increases in tuition occurred at the same time that the market for lawyers peaked and fell backwards over the last 25 years. Law schools became much more expensive exactly as a legal education became less valuable.
A recent article in the New York Times offered a survey declaring that lawyers in public service jobs were the happiest. What can be done to improve a lawyer’s quality of life across the board?
Rhode: The most important change would be to reduce the prioritization on profit instead of other measures that improve the delivery of legal services as well as lawyers’ quality of life. More focus on pro bono services and mentoring is critical. Billable hour expectations need to be scaled back to manageable levels. Bleary, burned out lawyers do not provide cost-effective services to clients, and unrealistic hourly quotas make adequate accommodation of family needs impossible. Legal employers should do more to monitor lawyer satisfaction and to respond accordingly.
Barton: Anyone who is familiar with the happiness literature was unsurprised by these survey results. Nancy Levit and Douglas Linder’s excellent OUP book, The Happy Lawyer, lays out many studies that predict that the most highly paid lawyers in America work jobs that are unlikely to produce much life satisfaction. Given the basic elements of corporate law and some small firm jobs—constant pressure to bill more, limited control over one’s schedule, reliance upon third parties (partners or clients) for career advancement, forced personal responsibility for the well-being of (frequently irascible and implacable) clients—it is no wonder happiness rates are down. Alternative/virtual law firms that offer flexible schedules and reward efficiency over simple hours of billing offer the chance to increase happiness rates among private lawyers of all stripes.
The integration of modern technology has certainly helped the legal profession evolve. What are the benefits or downsides?
Rhode: Some forms of technology are a mixed blessing. They make it easier for lawyers to work from home but they also make it harder not to. Lawyers remained tethered to their workplaces, 24/7. Technology has also increased clients’ expectations of an immediate response, which complicates life for those with competing family or professional demands. Other aspects of technology are more of a win-win. They enable more cost-effective services and ways for consumers to access legal information without expensive professional assistance.
Barton: I am an avowed techno-optimist and think that technology has been a massive boon to consumers and lawyers alike. Consumers have more access to free or inexpensive legal information and legal services than ever before, thanks to the internet and public and private entrepreneurs. Consider the availability of statutes, regulations, or case law. An American with a smartphone and Google has more and readier access to the raw materials of American law than a Supreme Court Justice did just 30 years ago.
State Supreme Courts and legal aid societies have also been posting free, downloadable legal forms all over the country. LegalZoom and Rocket Lawyer do so for a charge, often with inexpensive legal advice to boot. Modria offers low cost online dispute resolution as an alternative to the expense of litigation. These services are still in a relatively nascent state. As computerization improves, we will see access to justice improve for all but the very poorest Americans.
Is lawyerly creativity and entrepreneurialism enough to save the legal profession? Is the post-lawyer bubble society of the future—a bleak future or a cause for optimism?
Rhode: I am, on balance, an optimist. The legal profession has been at the forefront of every major social reform movement in American society. The remaining challenge is for the bar to turn its own talents inward, and to insist on changes that will serve both professional and public interests. The challenges that confront lawyers are daunting and inescapable. Lawyers are facing a universe of rising competition from within and outside the profession. Social expectations for more cost-effective and accessible services are also increasing. The profession has no choice but to respond. That said, I think the barriers to innovation in the short term may be hard to surmount. The primary one involves the profession’s control over its own governance. Because courts have asserted inherent authority to regulate the practice of law and have so often deferred to the organized bar, the obstacles to truly progressive reforms are substantial. We can only hope that more leaders of the profession will step up to the challenge and demand structural changes that better serve public interests.
Barton: I am also an optimist. This is partially because the changes we are seeing are excellent news for consumers and the country as a whole. It is also because I believe strongly in the American lawyer. Nimble and entrepreneurial, the American lawyer has been part of America’s DNA from the beginning. Lawyers have faced worse crises than today’s and have always come roaring back.
In the nineteenth century period of Jacksonian Democracy, a broad based attack on American elites left the legal profession virtually unregulated in a majority of states. Any citizen in these states could appear in court or offer legal services for a fee. Bar associations disbanded and it looked like the legal profession might disappear altogether. Lawyers responded during the industrial revolution by becoming irreplaceable partners with all levels of businesses, and lawyer earnings boomed for 40 years.
Lawyers again faced an existential threat during the Depression, when the economy crumbled and earnings collapsed. Lawyer wages fell more than other professions like medicine or engineering. The situation was dire enough in 1935 that 1,500 lawyers, in a country that only had 160,000 lawyers, took a pauper’s oath in order to join a legal relief project under the Works Progress Administration. The post World War II period rang in another 45 years of unprecedented growth. Lawyers may never see multiple decades where earnings outpace inflation again, but it is also unlikely that the American legal profession will fade away any time soon.
In this challenging profession, what’s your best advice to those just entering the field?
Rhode: My most important advice is “Don’t settle.” At least not in the long run. In the short term, constraints of money, geography, family, and training may keep you in a job that is not personally fulfilling. The important thing is not to let inertia and tastes for an affluent lifestyle trap you in the long run. Your degree gives you enormous freedom to carve out a career that is professionally meaningful and that leaves space for family, pro bono, and personal pursuits that are important to your quality of life. Don’t settle for anything less.
Barton: Be entrepreneurial! We are in a period of radical change in the legal profession (and in all knowledge occupations). During times of change, jobs are lost and some skills become outmoded, but fortunes are also made. The successful lawyers of tomorrow will be innovative, by either offering legal services more efficiently and cheaply to more people or by proving to clients of all stripes that the expense of individualized, hourly work is justified. The lawyers that learn to do one or both of these things will have long and fruitful (and more fun) careers.
Image Credit: “Justice” by sparkle-motion. CC BY NC 2.0 via Flickr.