Rethinking Admissions Requirements: It’s a Global Phenomenon

Jordan Furlong, Law Society of Alberta, Lawyer Licensing and Competence in Alberta (Nov. 2020).

As readers may have heard, the National Conference of Bar Examiners (NCBE) recently approved the preliminary recommendations of its Testing Task Force and is committed to developing “the next generation of the bar exam.” What readers may not know, however, is that the NCBE is not alone in its endeavor to consider licensing requirements: regulators elsewhere in the world, including in Canada, are also examining the issue of admissions requirements and how they should evaluate lawyer competence.1 As the NCBE develops its “next generation” bar exam and as U.S. jurisdictions decide whether and how to change their admissions rules, stakeholders may find it thought-provoking to consider the excellent report that Jordan Furlong produced for the lawyer regulatory body in the province of Alberta, Canada. This report is entitled Lawyer Licensing and Competence in Alberta.

Similar to the preliminary recommendations recently adopted by the NCBE, and the reports on which the NCBE’s action was based, the Alberta Lawyer Licensing and Competence report examines what lawyer “competence” means, how it could be fostered and measured, and the proper role of the regulator. Although Lawyer Licensing and Competence was written for Canadian regulators, it provides insights that may prove useful to U.S. lawyer regulation stakeholders2 on issues related to lawyer competence, the role of a regulator, legal education, and the NCBE’s January 2021 decision to develop the next generation of the bar exam. Continue reading "Rethinking Admissions Requirements: It’s a Global Phenomenon"

Understanding Lawyer Regulation Initiatives: Is there a Sweet Spot for Achieving Client-Focused Lawyer Regulation?

Leslie C. Levin, The Politics of Lawyer Regulation: The Malpractice Insurance Example, 33 Geo. J. Legal Ethics __  (forthcoming, 2020), available at SSRN.

If you ask most individuals why lawyers have a monopoly on the provision of legal services and why lawyer regulation exists, I suspect they would answer that lawyer regulation is necessary for “client protection.” Assuming this is correct, it is ironic that most U.S. jurisdictions do not require one of the most basic kinds of protection. Unlike lawyers in many other countries,1 most U.S. lawyers do not have to carry malpractice insurance, which could protect clients in the event of lawyer error.

Although several U.S. states have recently examined the issue of whether malpractice insurance should be mandatory, only two U.S. jurisdictions currently require lawyers to carry professional liability insurance. Oregon has had this requirement since 1977, and Idaho has had this requirement since 2018.  Professor Leslie Levin’s article on The Politics of Lawyer Regulation: The Malpractice Insurance Example, which will be published soon in the Georgetown Journal of Legal Ethics, is a case study that examines and compares the mandatory malpractice insurance initiatives in these and other states. Her thorough and insightful article makes a compelling read, not only for those who are interested in the malpractice insurance issue, but also for those who are interested in other lawyer regulatory issues and wonder why some reforms succeed, whereas others fail. Continue reading "Understanding Lawyer Regulation Initiatives: Is there a Sweet Spot for Achieving Client-Focused Lawyer Regulation?"

Back to the Future (Again) Regarding the Regulation of Legal Services

In July 2018, the State Bar of California authorized the formation of a Task Force on Access Through Innovation of Legal Services. This Task Force has been asked to identify possible regulatory changes to enhance the delivery of, and access to, legal services. It will address three broad topics: 1) the definition of unauthorized practice of law; 2) lawyer marketing, advertising, partnership, and fee-splitting rules; and 3) non-lawyer ownership and investment. The first sentence of the Task Force Fact Sheet states that “Too many Californians needing legal services cannot afford an attorney or don’t have meaningful access.” The second sentence of the Fact Sheet cites a 2018 Legal Market Landscape Report that was commissioned by the State Bar of California and written by Professor Bill Henderson.

Professor Henderson’s 2018 Legal Market Landscape Report is a document that all lawyers should read. It is jam-packed with data, and it provides the grounding for California’s ongoing conversations regarding the proper scope of lawyer regulation. Moreover, much of the information in the Report is not California-specific and thus is of interest to anyone who is concerned about access to legal services and the proper scope of lawyer regulation. Continue reading "Back to the Future (Again) Regarding the Regulation of Legal Services"

Look What’s New! Utah’s Groundbreaking Efforts to Use Online Dispute Resolution (ODR) to Increase Access to Justice

Justice Deno Himonas, Utah’s Online Dispute Resolution Program, 122 Dickinson L. Rev. 875 (2018).

In September 2018, Utah launched its small claims court online dispute resolution (ODR) system. Years in the making, a goal of Utah’s new ODR system is to provide greater access to justice for Utah’s citizens. The ODR system has been designed to provide “simple, quick, inexpensive and easily accessible justice” that includes “individualized assistance and information that is accessible across a multitude of electronic platforms.”

This description of Utah’s new ODR program comes from Utah Supreme Court Justice Deno Himonas’s article entitled Utah’s Online Dispute Resolution Program Justice Himonas’s article should be of particular interest to readers who followed the work of the ABA Commission on the Future of Legal Services or readers interested in developments such as Washington’s Limited License Legal Technician program (LLLT) or New York’s Court Navigator program. Continue reading "Look What’s New! Utah’s Groundbreaking Efforts to Use Online Dispute Resolution (ODR) to Increase Access to Justice"

Looking For Competencies in all of the Right Places

Neil W. Hamilton & Jerome M. Organ, Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation), 83 Tenn. L. Rev. 843 (2016), available at SSRN.

Few people would say that U.S. legal education is doing an absolutely perfect job. While there have been a number of different criticisms and reform proposals over the past thirty years, some common themes have emerged. One theme is that students are not equipped with the range of skills they need to help clients address multi-faceted issues in an interdisciplinary world.  Additional themes are found in the influential 2007 Carnegie Foundation report. Summarizing this report, one coauthor explained that legal education has generally done a good job with respect to the “first apprenticeship,” which is the “cognitive apprenticeship” of teaching students to think like a lawyer; that legal education has made modest improvements with respect to the “second apprenticeship” which involves skills and practice; and that legal education has done a poor job with respect to the “third apprenticeship,” which involves professional identity and values.

One recent article that addresses these legal education gaps is Neil Hamilton and Jerry Organ’s “Thirty Reflection Questions” article. Thirty Reflection Questions begins by discussing the concept of “learning outcomes,” including learning outcomes related to professional identity and values. This article cites the definition of learning outcomes found in a 2015 ABA accreditation Guidance Memo: “Learning outcomes must consist of clear and concise statements of knowledge that students are expected to acquire, skills students are expected to develop, and values that they are expected to understand and integrate into their professional lives.” For those who have not paid particularly close attention to the ABA Council’s relatively new Standard 302, the interpretative Guidance Memo, or the related literature, Part I of the article provides a very useful overview of the learning outcomes accreditation requirement and the rationale that lies behind it. Part II discusses how a law school curriculum can be designed in order to foster learning outcomes related to professional identity, taking into account research from other fields and data about law student development.1 Finally, Part III contains the thirty reflection questions referenced in the article’s title. This Part explains how a law school or faculty member can use the thirty questions to help law students obtain meaningful post-graduation employment, acquire the competencies that legal employers and clients want, and develop their professional identity.

I particularly like Part III because of the way that it links the topics of post- graduation employment, the “competencies” that legal employers want their new hires to possess, and professional identity formation. Part III explains how a law school or professor can use a law student’s interest in the first topic – his or her own employment outcome – as a way to foster development with respect to the other two outcomes. The authors explain that the breakthrough in their own thinking was when they decided to go where the students are and to recognize that virtually all students want post-graduation employment that is meaningful to them given their life experiences, talents and passions. (P. 876.) The reflection questions provide an “enlightened self-interest” entry point for students to proactively develop the competencies they need to serve clients and the legal system well and to develop their professional identity and a commitment to the legal system. Continue reading "Looking For Competencies in all of the Right Places"

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