Yearly Archives: 2017
Oct 10, 2017 Richard Moorhead
Reading Robert W. Gordon’s Essay The Return of the Lawyer-Statesman? on Ben W. Heineman Jr.’s book, The Inside Counsel Revolution (an introduction and link to the book can be found here) reminded me of three virtues. One is of the review essay, the ability to luxuriate in another’s work and allow it to be seen through one’s own ideas. This is something I confess I have never attempted, fearing the reflex to critique or the urge to self-publicize would surface too strongly. The second is of the need to return to familiar but central ideas. Gordon has written on the themes in this essay many times before (see for example, Corporate Law Practice as a Public Calling and A New Role for Lawyers: The Corporate Counselor after Enron). His arguments are the more elegant for it and, importantly, our reading of Heineman is more rewarding too. But the third is the one that struck me most forcefully, which is the wisdom to be gained from well-told legal history.
The central virtue of Gordon’s essay is the historical contextualization of Heineman’ book. Gordon gives us a taut, rich, and informative narrative on the importance of political context. In seeking to answer whether General Counsel can be both [business] partner and [public] guardian as Heineman puts it, we are reminded how we have been here before: the tensions in the General Counsel role—and their currently high status in corporate affairs – are not peculiarly modern. Most importantly we also see how lawyers’ ethics are shaped by far larger forces than law schools and bar associations. So the influence of inter-war industrial relations, Reagonomics, the politics of corporate leaders, and latter day skepticism of the corporation post-financial crash may all play a role.
The starting point is Louis Brandeis’s 1905 call for a more independent, judicious, public-interest focused model of corporate representation in his 1905 speech, The Opportunity in the Law. We are reminded of Brandeis’s call for lawyers to advance democratic citizenship but also that their ability to do this depends on their business clients desiring or permitting such a role. Gordon points too, to some signal successes for one of Heineman’s early predecessors as a General Counsel at—and perhaps more importantly as Chairman of—General Electric, Owen Young. Young lived the Brandeisian dream: company unions, company sponsored life insurance, mortgage benefits, employment and wage security and the like were the result. Leaders of large corporates formed the Committee of Economic Development (CED) in 1942 to advance moderate public interest agendas, prefiguring Heneiman’s ideas about how corporates should lead. Economic and geopolitical problems of the 1970s, familiar to the World conjured by Brexit or by Donald Trump’s rustbelt America, prompted a reversal of a particular kind. The CED was replaced by a Business Roundtable which shifted towards a public program centred on cutting taxes, social spending, labor costs and reducing regulation. By the late 1990s, Gordon puts it like this: “professional management was still connected to a policy program and social vision, though by this time a very conservative one.” (P. 1742.)
The benevolent capitalism of Brandeis was replaced with the ideas of business as a mere collection of contracts. Managers were notionally aligned with shareholders and practically freed to promote their own wealth as a priority, “until the bubbles burst and the music stopped.” (P. 1743.) This nod to the Financial Crisis is, I think Gordon’s way of bringing both his history, and Heineman’s book, into the sharpest social and political focus. The corporate amorality, driven from the 1980s onwards by Milton Friedman amongst others, was mirrored by client-first notions of professionalism: “This orthodox view of the corporation as amoral profit-seeking servant of its stockholders is, I believe, disturbing enough on its own terms. But it becomes positively frightening when coupled with the orthodox view of the lawyer as equally amoral zealous servant of his client….” (P. 1744.) In settling some scores with the shallow ethicality of Friedman’s vision, Gordon sets out the central—if perhaps a little exaggerated— role of lawyers in subverting the rule of law through gaming, creative compliance, or what my lawyer informants sometimes refer to as sharp or clever lawyering. He sees law, as frequently practiced today, as a cost on the business that can be ignored if the rewards are high enough. He sees how corporate amorality does not act as a bar to rent-seeking and right-wing populism. Instead, he writes, “[t]he amoral corporation guided by the amoral zealous advocate is potentially a monster, a powerful engine of destruction, a licensed sociopath” aided and abetted by the ethics of lawyers to “libertarian Babbitry.” (P. 1750.) The critical point here is that a certain kind of business logic (amoral, short term, aggressive) is aided by the professional ethic of zealous advocacy that helpfully absolves the lawyer of professional responsibility. The danger is a mutually reinforcing logic of irresponsibility.
With the language of criticism flowing so freely, and powerfully, Gordon nevertheless sees hope in Heineman’s book. The key, I think, is in Gordon’s observation that, “[e]veryone is, or at least pretends to be, just an agent.” (P. 1763.) The point is that the agents service the amoral, profit drive beast, and feel able to disclaim responsibility because of notions such as amoral zeal. And it is very clear that Heineman takes a very different view. Gordon writes:
Heineman articulates a vision of the general counsel’s role that is in many ways at odds with 1980s-era managers’ and lawyers’ ethics. He emphatically rejects the Jensen-Meckling thesis that the sole task of management is to maximize shareholder value, as measured by short-term share price, and resurrects the managerialist view that the corporation has responsibilities to its many constituencies—including employees, customers, creditors, suppliers, and communities. He also rejects both the “bad man’s” view of law as simply a price on conduct and the view of law as texts to be construed formally and technically rather than in the light of their “real purpose[s]” and likely social consequences. He urges company lawyers to respect the law as embodying norms, or “binding judgments made by a society’s duly authorized legal and political processes,” and argues that “[g]lobal corporations must give deference to the law of the nation in which they choose to operate, even if there is some discretion in determining what is the law of that society.” A general counsel must say “no” to clearly illegal conduct. But the lawyer-statesman must ask what is right as well as what is legal. And more than that, he must ask what the long-term global economic, policy, and cultural tendencies are that may affect the corporation’s future and to develop strategies to anticipate them. Heineman calls for—and his career exemplifies—a powerful and proactive general counsel, not a team of lawyers waiting passively to be consulted by business managers. (Pp. 1754-55.)
Gordon poses a series of well-judged questions about the book. Does Heineman live up to his own counsel? Did he fail or lose some battles in dealing with some of the ethical problems associated with GE? If he did, why did he lose them? Gordon acknowledges the reasons why Heineman would not or could not always prevail: these include the possibility that Heineman’s hands were tied by obligations of professional privilege and confidentiality, a clever example of the way in which legal professional privilege silences error and scandal but allows the promotion of success.
I am a fan of the Heineman book, but Gordon’s criticisms are well made and fair, as is the praise. I want to end with that, because for all that critique is important, the praise is important too and—to my mind—well judged. When someone as experienced and as wise as Gordon says a practitioner’s work is “utopian, in a good way” something is up. (P. 1736.) It is, Gordon says (and I agree), “the most comprehensive and detailed vision of an in-house counsel as lawyer-statesman who promotes public values and the rule of law as well as self-interest of his client company.” (P. 1753.) And “it is full of concrete examples of public-minded activism and pragmatic proposals for the institutionalizing the locus of such action in the general counsel’s office.” (P. 1762.) To be sure, not everyone will agree with every point Gordon (or, for that matter, Heineman) makes. But with the sweep of history reminding us of the past and its promise, as well as its pitfalls, Gordon, and Heineman’s work can help General Counsel chart a different and better course—and their ideas can help law schools, as they redouble their efforts to teach students ethics and impart professional identity, with greater vigour, purpose, and understanding.
Sep 12, 2017 Sida Liu
The bar exam has rarely been of great interest to legal scholars. Although its format and pass rate vary substantially across countries and jurisdictions, it is often dismissed as merely a qualifying exam aimed at “controlling the production of producers,” as Richard L. Abel argues in his seminal book American Lawyers. Even in Japan, where the bar exam pass rate used to be as low as 2-3%, most discussions contemplating reform have focused on whether or not it is desirable to increase the number of lawyers. Although many law professors have taken the exam—and some, famously, have flunked it—there seems to be little scholarly interest in understanding its content.
This is why Rachel E. Stern’s new study on how China politicized its bar exam is both refreshing and insightful. In the process of researching Chinese law, Stern keenly observed a phenomenon that most other researchers took for granted. In particular, over the past decade, a number of “political questions” have been inserted into the National Judicial Examination—China’s unified bar exam for judges, procurators, and lawyers. These questions are not aimed at testing the test-takers’ legal knowledge or technical expertise but, rather, their understanding of the “socialist rule of law and the correct role of the Chinese Communist Party (CCP)” (P. 507), which are only remotely related to legal issues or the structure of the legal system. Although the political questions account for merely a small percentage of all exam questions, given the exam’s relatively low pass rate (only 11% in 2013), most test-takers still take them seriously.
The answers to many of the political questions appear enigmatic to non-Chinese readers, yet for the would-be Chinese legal professionals who prepared meticulously for the exam, finding the correct answers is not a difficult task. As Stern argues, this involves a process called “preference falsification” by political scientists, that is, an act of “navigating the gap between private beliefs and public expression.” (Pp. 525-26.) For citizens living in post-socialist or other authoritarian regimes, this is “an instinctive strategy for survival” (P. 526) acquired through years of living (and test-taking) experience. Through the bar exam and many other state-controlled exams, Chinese young adults are trained “in the art of orthopraxy,” (P. 527) and they can easily display public loyalty to the Party-state orally and in writing without true inner belief in its legitimacy. As one of Stern’s interviewees put it, “I have my personal opinion, but for the test I will do whatever the correct answer is.” (P. 526.)
Then comes the obvious question: Why put such political questions in a professional qualifying exam if few test-takers truly believe in their answers? Here Stern’s usually clear and convincing analysis gets a little ambiguous. She gives four possible explanations (i.e., to weed, warn, persuade, or train) but then rejects all of them. (Pp. 523-24.) Indeed, given the small percentage of political questions and the fact that most Chinese adults have mastered the “art of orthopraxy” in primary and secondary education long before they stand for the bar, the purpose of inserting this political element into the bar exam seems puzzling. Stern argues that the bar exam is not a warning, persuading or training tool, but “a site of political learning where test-takers refine and practice the implicit rules governing interactions with the state.” (P. 525.)
This is certainly true for the bar exam, but it is also true for many other exams. As Stern points out, similar questions widely exist in the college entrance exam, the civil service exam, and other professional licensing exams in China. Accordingly, finding the “standard answers” to political questions is a highly routinized practice for ordinary Chinese students and citizens. In this sense, inserting political questions into the bar exam is perhaps not as surprising to Chinese test-takers than to outside observers. It is possible that the practice reflected the particular political climate of the late 2000s, when “China’s turn against law” occurred, as Carl Minzner observes in his widely cited article. In that turn, the Chinese government and the CCP explicitly sought to situate the legal system under the more pressing concerns of maintaining social stability and preventing social unrests. Under this political background, making sure that future legal professionals at least understand (if not believe) the Party-state’s policy concerns seem a reasonable explanation for the “political turn” in China’s bar exam. After Xi Jinping’s rise to power in 2012, the CCP has been even more assertive on its role in the legal system and, therefore, the continuing use of political questions in the bar exam is not surprising.
Nevertheless, I agree with Stern that we need to take the political nature of professional qualification seriously, in China and elsewhere. In American Lawyers, Abel documents the history of “character tests” in the United States as a tool to exclude political dissidents from entering the bar. (P. 70.) In comparison to the exclusionary nature of the American-style character tests, the political questions in the Chinese bar exam constitute a subtler way of promoting lawyers’ political loyalty to the regime. Even though test-takers could theoretically give up all the political questions and still pass this exam, in practice most of them are trained to find correct answers to those questions, often through intensive cram courses and repeated practice exams. As a result, what Stern calls “preference falsification” exercises a symbolic function of defining the boundary of acceptable ideology and behavior under China’s political regime.
In this sense, the seemingly technical bar exam becomes an instrument of political control over the legal profession, a form of “soft repression” exercised not only by the state, but also by all the participants of the bar exam preparation. Stern gave a fascinating example of how a bar exam cram school lecturer explained to his class the fundamental logic of political questions in the exam: “memorize this one sentence . . . our Party is always glorious, great, and correct.” (P. 528.) As he continued to elaborate on this point with stories and jokes, the students laughed. But would they also laugh when they saw hundreds of activist lawyers detained in the “709 Crackdown” in 2015? Or when they heard the Supreme People’s Court President publicly denouncing judicial independence as an erroneous “Western concept” in 2017? Beneath the veneer of preference falsification there is a hard truth: The Party always trumps the law. This is the lasting pain of becoming legal professionals in China, and the bar exam is merely one of many symptoms in their careers that confirm it.
Jul 28, 2017 Eli Wald
William H. Simon,
Attorney-Client Confidentiality,
Geo. J. Legal Ethics (forthcoming, 2017), available at
SSRN.
In a concise and elegant essay, titled Attorney-Client Confidentiality: A Critical Analysis, William H. Simon offers a compelling justice-based critique of the doctrine of confidentiality. Defined broadly to encompass all “information related to the representation” of a client, the traditional doctrine, dubbed by Simon “strong” confidentiality (p. 1), forbids disclosure unless narrow exceptions apply (see Rule 1.6). Challenging both the expanse of the doctrine and its categorical posture, Simon instead advances what he calls “moderate confidentiality”—a duty that would “mandate preservation of confidentiality except where disclosure is clearly necessary to avert substantial injustice.” As Simon explains:
The moderate duty is sensitive to context and demands complex judgment on the part of the lawyer. In every case where confidentiality threatens to work injustice, the lawyer must weigh the value of client loyalty against the competing harm disclosure would avert. By contrast, the strong confidentiality of current doctrine is more categorical in form and seems designed to minimize judgment. Once there is a presumptively confidential communication, the lawyer is directed to consult a list of exceptions. If there is no relevant exception, confidentiality prevails over competing considerations, no matter how weighty they are. (P. 2.)
In so doing, Simon first rejects the two common justifications for strong confidentiality: the notion that strong confidentiality is needed to foster trust in the attorney-client relationship, which in turn makes the representation more effective, and the vindication of law and legal rights. Both justifications are codified in comment 2 to Rule 1.6. The comment reads in relevant part, “[confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively,” and adds that “[a]lmost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct.” (Rule 1.6, cmt 2.)
As to the first justification, Simon argues convincingly that trust in the attorney-client relationship if and when it results in substantive injustice to others, does not constitute a compelling justification to broad confidentiality. In Simon’s words, “the key underlying value of the legal system is justice. The legal system does not exist to create trust. It exists to create order within the limits of justice. When confidentiality threatens justice, as it often does in its strong version, it is implausible to assert that trust is more important.” (P. 3.) And, as to the second, Simon asserts that vindication of clients’ rights, either advising clients about past conduct or in connection with their future acts, does not require strong confidentiality, evident by the many exceptions to the existing doctrine. (Pp. 2-8.)
Having found the rationales for strong confidentiality “uncompelling,” the essay advocates a softer and more context-specific substitute. Simon points out that while the current doctrine appears to result in certainty for clients and lawyers regarding the application of confidentiality, strong confidentiality does not in fact provide clients with strict assurances that information related to the representation will never be disclosed. More importantly, Simon argues that the moderate approach he advocates still takes the form of a presumption in favor of confidentiality, while inserting justice – “the key underlying value of the legal system” (p. 3) – into the analysis, allowing lawyers to consider justice, if not as a client goal, then appropriately as a constraint on confidentiality and the representation itself. (P. 10.)
Justice, the cornerstone of any legal system, has long been a neglected aspect of the American legal system. While the Preamble to the American Bar Association Model Rules of Professional Conduct defines a lawyer to be “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice,” U.S. lawyers increasingly understand their role predominantly in terms of the representation of clients, to the relative exclusion of meaningful duties as officers of the legal system and as public citizens, see here and here for a summary of the relevant data. Indeed, the Rules themselves specify few duties for lawyers as officers of the legal system and public citizens, and law schools and bar associations increasingly shy away from teaching, or even engaging their students and members in meaningful debates about conceptions of justice, see here. An increasingly competitive market for legal services informed by a business and legal cultures that treat the public interest as nothing more than the aggregate of clients’ private interests help further reduce the space for justice in lawyers’ practice of law.
Simon, however, asserts the inherent importance of justice, both as the underlying value of the legal system and as the cornerstone of the attorney-client relationship. This is where the essay is at its best: while “[t]he private lawyer has a duty to advance the private interests of the client . . . the private lawyer is to seek the client’s goals within the limits of justice.” (P. 10, emphasis in the original.) In a day and age in which some worry that justice, and, in particular, lawyers’ “special responsibility for the quality of justice,” have become little more than rhetorical gestures as opposed to real commitments of the legal profession, Simon’s insistence on taking justice seriously by incorporating it explicitly into arguably the most important doctrine to lawyers and their clients, is not only refreshing, but a fundamentally important stance.
Critics may argue about the details of Simon’s proposal. Some may accept that strong confidentiality is too broad and agree that a “softer” approach may be warranted, but nevertheless wonder whether alternative formulations of moderate confidentiality not involving justice may exist. For example, the 1969 Model Code superseded by the current Model Rules featured a narrower approach to confidentiality, protecting only confidences and secretes as opposed to “information related to the representation.” Others may worry about entrusting to lawyers some kind of a gatekeeping role, making them unelected justice-kings who can override confidentiality when they, but not their clients, believe that “disclosure is clearly necessary to avert substantial injustice.” And yet others will no doubt question the administrative costs of moving from a bright line strong confidentiality to an open ended “substantial injustice” standard.
Such likely disagreements over the particulars notwithstanding, the essay makes a unique contribution making it a must read for clients, lawyers and scholars of the legal profession. It makes a powerful case for the inherent role justice must play in the practice of law and in doctrines that regulate it. Bill Simon, of course, is not a newcomer to either arguing about the importance of justice to the practice of law. This essay builds on and extends Simon’s extensive contributions in at least two ways: it gives “coherence to confidentiality exceptions by unifying them around a single, compelling concept – justice,” and it offers an understanding of confidentiality that is “responsive to cases that fall in the cracks between the current discrete exceptions.” (P.12.)
Jul 15, 2017 Laurel Terry
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. 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.
Part III explains how legal educators can use what the article describes as “the 14 Roadmap curriculum questions” to achieve the outcomes listed above. (( Because of the differing content and different target audiences, Thirty Reflection Questions is not a substitute for students for the Roadmap book even though the article discusses “the Roadmap curriculum.” For example, the Roadmap book includes extensive “competencies” data, but the Thirty Reflection Questions article does not. The article describes but does not include the Roadmap template that asks students to complete a Strengthsfinder 2.0 assessment, obtain a 360 degree assessment of themselves from others, and develop a networking plan. The book includes the Roadmap template and advises students how to use the fourteen reflection questions to create a Portfolio that will help them seek employment and decide what additional steps they need to take in order to develop the competencies needed to serve their clients and the legal system.
Although Thirty Reflection Questions is not a substitute for the Roadmap book, and although I strongly recommend to my students that they purchase the Roadmap book, it should be noted that some of the book’s content is available elsewhere. See, e.g., Neil W. Hamilton, Law Firm Competency Models and Student Professional Success: Building on a Foundation of Professional Formation/Professionalism, 11 St. Thomas L.J. 6 (2013)(compares the author’s Minnesota large law firm competencies data to the data found in four studies of law firm competency models); Neil Hamilton, Empirical Research on the Core Competencies Needed to Practice Law: What Do Clients, New Lawyers, and Legal Employers Tell Us?, 83(3) Bar Examiner 6 (Sept. 2014)(compares a synthesis of the author’s Minnesota data to the data from the NCBE’s newly licensed lawyer study).)) (Roadmap is a reference to Neil Hamilton’s 2015 book entitled Roadmap: The Law Student’s Guide to Preparing and Executing a Successful Plan for Employment.) For example, Question 4 helps students better position themselves for the employment market by asking the following: “Looking at the competencies that clients and legal employers want, how do you self-assess what are your strongest competencies? How do others who know your past work/service assess your strongest competencies?” Question 10 helps students “progress in self-directed learning toward excellence at the competencies needed to serve clients and the legal system well” by asking: “How do you plan to use your remaining time in law school, including the curriculum and all the other experiences of law school, most effectively to develop the competencies that support your value proposition? Are you assessing your progress in implementing your plan?” The 14 Roadmap curriculum questions help each student identify: 1) that student’s strengths and interests; 2) employers that would be a good fit given that student’s strengths and interests; 3) the “value proposition” that the student brings to a particular legal employer; and 4) how that student might use his or her remaining time in law school to further develop and then communicate to potential employers that student’s competencies.
Students who have used the Roadmap curriculum questions appear to have benefited from them. For example, during Spring Semester 2015, 1L students at St. Thomas Law School completed the first fourteen questions, created a written professional development plan, and participated in a feedback meeting with a veteran coach. Self-assessment data collected at the beginning and end of the semester showed that the percentage of students in Stages 1 or 2 of self-directed learning (out of four stages) was reduced from 54.4% to 9.8%. By the end of the semester, more than 25% of the 1L students assessed themselves at the highest stage of self-directed learning. (P. 866.)
Thirty Reflection Questions offers the following description of its remaining sixteen questions:
If the 14 ROADMAP questions are designed to help the student determine what she wants to do as a lawyer as she writes the next chapters of her story toward meaningful employment, taking into account her strengths and passions and the needs of clients and employers, this second set of 16 questions is focused more on who the student wants to be as a lawyer, how she wants to conduct herself as a lawyer, and how she will balance her life as a lawyer in the context of her responsibilities to clients, to the legal system, and to all the other people in her life. These questions help the student navigate her relationship with clients and with the legal system.
Although legal educators may want to use the empirical data found in the Roadmap book to prompt students to think about the “competencies” that employers and clients value (and thus what it means to be a lawyer), there are a number of additional sources that one can draw upon. For example, although it has been more than twenty-five years since the ABA issued the MacCrate Report’s Statement of the Fundamental Lawyering Skills and Professional Values, stakeholders continue to use the MacCrate list as an important benchmark For a much more recent example, one can consult the 2015 Foundations for Practice study, which surveyed more than 24,000 lawyers in fifty states in an effort to identify the attributes and competencies that lawyers need in the short-term, medium-term, and long-term. The Foundations for Practice data, which is available in an interactive format and is also summarized in reports, show that employers want a much broader array of skills and characteristics than students might realize. For example, the surveyed employers wanted to hire students who had “competencies” that included, inter alia, communication skills, passion and ambition, integrity and trustworthiness, diligence, and common sense, as well as traditional skills such as legal research and writing.
Data from outside the United States is similar. Several jurisdictions have identified – and, in some cases, have adopted as regulatory requirements – the competencies required of new lawyers. Regulatory groups in Australia (see here and here), Canada (see, e.g., here, here, and here), England & Wales (see, e.g., here, here and here), and Scotland (here) are among those who have recognized that new lawyers need to possess competencies that go well beyond doctrinal knowledge and traditional legal skills. For example, Australia’s Competency Standards for Entry Level Lawyers include elements such as managing personal time, working cooperatively, and self-management. The National Entry to Practice Competency Profile adopted by the Federation of Law Societies of Canada includes client relationship management skills and practice management skills. The Statement of Solicitor Competence adopted by the UK’s Solicitors Regulation Authority includes competencies related to “working with other people” and related to “managing themselves and their own work.”
Competencies lists such as these are useful tools for law schools and legal educators who want their students to become better lawyers and who want to do a better job teaching professional identity and values. The Thirty Reflection Questions article is invaluable because it provides a roadmap educators can use to tie the competencies and professional identity material to student employment outcomes, which is an issue that students likely care about.
In sum, Thirty Reflection Questions by Professors Neil Hamilton and Jerry Organ provides a great service to all legal educators and, even more importantly, to students and to the clients they one day will serve. I encourage you to check out this very useful article.
Cite as: Laurel Terry,
Looking For Competencies in all of the Right Places, JOTWELL
(July 15, 2017) (reviewing 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),
https://legalpro.jotwell.com/looking-for-competencies-in-all-of-the-right-places/.
Jun 12, 2017 Carole Silver
The news about Russia’s interference in the U.S. election raises myriad questions for lawyers, including for students of the legal profession. For example, are Russia’s lawyers being trained in ways that position them to be complicit in President Putin’s increasing autocracy? Or is their education preparing them to challenge his control? Have they served as enabler or challenger in the past? Is there any reason to expect them to take a more activist role today? And generally, what explains the differences among nations in the ways lawyers pursue or forego action aimed at constraining governmental overreach and corruption?
These questions are among the topics explored by Kathryn Hendley in her work on the Russian legal profession and legal system. Hendley’s newest article, Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia, considers whether a group of recent law graduates “might be willing to take on the regime in defense of civil society.” (P. 452.) Her focus on lawyers arises from the recognition that “[l]aw has played a critical role in this strangulation of civil society” in Russia, on one hand, and that “[i]n some other authoritarian polities, lawyers have taken the lead in holding authorities to account, often paying a heavy personal price for doing so.” (P.451.) Their use of law’s mechanisms to pursue justice “act as signals … [that] may evince a nascent civil society ….” (P. 451.)
Hendley brings a career’s worth of insight and understanding about Russia to this question. Her starting point in this article is the observation that Russia’s lawyers generally “do not see their role as questioning the existing laws; they accept these as a given and work to maximize the benefits for their clients.” (P. 452.) While she notes exceptions, including the occasional lawyer who “represent[s] defendants in politically-charged cases,” (P. 452.) these do not support an expectation that lawyers will rise up in a public challenge to Putin. Nor is this simply a reflection of recent political regimes in Russia. Rather, as Michael Newcity wrote in an aptly-titled article, Why Is There No Russian Atticus Finch? Or Even a Russian Rumpole?, “casting lawyers, courts, juries, and judges in a positive, even heroic, light never took hold in Russia” despite widespread reforms initiated in 1864 based on “Western-style legal institutions.” Nevertheless, the question that Hendley raises is whether there is hope for change, particularly because “the legal profession is not static.” (P. 452.) he posits that change among those who study law and become lawyers in Russia may result in lawyers taking more activist roles. While it is not clear what, if anything, suggests that future lawyers will differ from past generations in this regard, one need only consider the forces of social media and information technology in recent world events to recognize the potential for more activist conduct.
To learn about this potential for change, Hendley has undertaken a new study focused on careers of Russian law graduates. This research is patterned on the After-The-JD study of US law graduates (P. 457.) and will involve a longitudinal study of law graduates who pursue various career paths. In this article, Hendley discusses results of a sample of 301 Russian law students who were about to graduate in 2015 from “a mix of state-funded and private law faculties from ten regions across Russia.” (P. 458.) The sample included students of various backgrounds and experiences who intended to pursue diverse career trajectories (including working in the criminal justice system, the state bureaucracy, corporate organizations (in-house positions), and private practice. (Pp. 457-459.)
One of the survey questions asked students why they decided to study law. Nearly 30% of the respondents identified their motivation as a “desire to change or improve society.” Hendley focused on this group, which she dubbed the “Social Change Group,” to explore their potential for challenging Putin’s policies and authority. (P. 460.) In order to understand what “change or improve society” means in the Russian law student context and what attitudes it suggests regarding politics and political activism, Hendley analyzed the characteristics of the Social Change Group in comparison to those of other respondents.
Hendley’s findings are disheartening if unsurprising: The “data provide no evidence of a willingness on the part of the Social Change Group to make waves or challenge the status quo in any meaningful way.” Rather, “their passion for changing and improving society will be expressed by yoking themselves to the Putin agenda.” (P. 477.) At the same time, students in the Social Change Group were not naïve; they indicated an awareness of the effects of politics on the legal system, including, for example, “recogniz[ing] the existence and power of extra-legal factors on the courts, such as connections and bureaucratic incentives.” (P. 477.)
Hendley places some responsibility for the Social Change Group’s support for Putin’s regime on Russian legal education, which has been “traditionally focused on studying the statutory codes, with the goal of mastering their intricacies.” (P. 454) Russian law students are taught in
[t]he tradition of studying law by memorizing the key sections of the major codes [, which] inculcates a deep respect for the law on the books among law students. They are not encouraged to question its content. They neither study the twists and turns of legislative history nor do they debate how the law might be improved. This lack of emphasis on critical thinking facilitates an unquestioning accep-tance of the status quo. (P.476.)
Hendley’s analysis of legal education’s role in the development of Russian law students’ professional identity emphasizes what is missing as much as what affirmatively is conveyed:
The sort of critical thinking that is the hall-mark of Anglo-American legal education is mostly absent from Russian law faculties. As a result, according to the typology of lawyers developed by Nelson and Neilsen, Russian lawyers are best conceptualized as technicians, rather than as advisors or hired guns. They rarely take a leadership role in solving problems. Instead, their clients take the lead. This is not unique to Russia, but is often found in authoritarian polities. (P. 454.)
In placing this responsibility on legal education, Hendley also highlights what she characterizes as the distinctively different approach of U.S. law schools, where teaching critical thinking is a common goal. Indeed, it is the focus of the Socratic Method. Critical thinking, after all, is the one thing that most agree is effectively taught in U.S. law schools. At the same time, it is almost an after-thought today, often absent from the current focus on students’ acquisition of specific practice skills, specialized knowledge and technological competency. But while these educational gains admittedly are important for new law graduates, they do not substitute for critical thinking in lawyers’ work. Amidst the debates about the shortcomings of U.S. legal education, critical thinking often is overlooked.
Hendley’s highlighting of difference offers some potential salve for the arduous experiences we are encountering in the U.S. today, including interference in the electoral system, political objections to the judiciary, threats to immigrants’ rights, and challenges to the relevance and continued viability of U.S. legal education. American lawyers’ response to the Trump Administration’s initial Immigration Order (aka the Muslim Ban) poses a stark contrast. It would be naïve to tie this difference in approach and attitude to a single source, of course, and many leading activists are not lawyers. But to the extent that legal education plays any part, it highlights the important role of US legal education in civil society generally. Which brings home yet another take-away from reading Hendley’s work: as is often the case, learning in a comparative context teaches as much about home as abroad.
