Bar Examiner - National Conference of Bar Examiners

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Bar Examiner
THE
Volume 82 | Number 2
| June 2013
A publication of the National Conference of Bar Examiners
Articles
6
The New Entry-Level Legal Employment Market
18
Creating an International Network of Lawyer Regulators:
The 2012 International Conference of Legal Regulators
by James G. Leipold
by Laurel S. Terry
28
ABA Accreditation: A Symbol of Quality
by Diane F. Bosse
44
American Legal Education: Where Did We Come From?
Where Are We Going?
Keynote Address from the 2013 NCBE Annual Bar Admissions Conference
by Daniel R. Coquillette
Departments
2
Letter from the Chair
by Franklin R. Harrison
4
President’s Page
by Erica Moeser
34
The Testing Column
Quality Control for Developing and Grading
Written Bar Exam Components
by Susan M. Case, Ph.D.
38
News and Events
51
Litigation Update
by Fred P. Parker III and Brad Gilbert
Bar Examiner
Letter from
the Chair
THE
Editor
Claire Huismann
Editorial Advisory Committee
Beverly Tarpley, Chair
Hon. Henry A. Alaniz
Bedford T. Bentley, Jr.
Donna E. Blanton
Marygold Shire Melli
Paul H. Mills
Fred P. Parker III
Hon. Phyllis D. Thompson
Publication Production and Design
Melanie Hoffman
W
“Boston Strong”
ho would ever have thought that this year’s NCBE Annual Bar
Admissions Conference in Boston would be memorable for so
much more than just the excellent program? After the bombings
at the finish line of the Boston Marathon three days before the
start of the conference, NCBE had to make a decision as to whether to pull the plug
on the conference or proceed as planned on Thursday evening. As is so often the
case during the immediate hours following such horrific events, it was difficult to
determine from the news accounts what was actually transpiring in the city. In spite
of my inclination to meet this act of violence with determined defiance, we had to
Editorial Assistant
Lisa Palzkill
Publisher
National Conference of Bar Examiners
NCBE Officers
Chair
Franklin R. Harrison
better understand the situation before making a decision. On Wednesday morning,
the hotel, the Boston mayor’s office, and the officials at Logan Airport all assured us
that all was safe and that Boston was “open for business.” The decision was made to
proceed with the conference as planned.
Those of us who arrived in Boston on Thursday found the city fully functioning but with a large police presence. President Obama had just left after flying in to
attend a service for the victims of the bombings. Law enforcement vehicles, including those from adjacent jurisdictions, were seen everywhere. The Copley Square and
President
Erica Moeser
Boylston Street areas were cordoned off. There was a Humvee from the Cape Cod
Immediate Past Chair
Rebecca S. Thiem
After the shootings on Thursday night of one of the suspects and of a police
SWAT Team parked at the entrance to our hotel.
officer, the situation intensified. The “sheltering-in-place” of Boston on Friday was a
Chair-Elect
Margaret Fuller Corneille
Secretary
Bryan R. Williams
NCBE Board of Trustees
Hulett H. Askew
Hon. Rebecca White Berch
Hon. Thomas J. Bice
Mark S. Carlin
Robert A. Chong
Michele A. Gavagni
Hon. Cynthia L. Martin
Darryl W. Simpkins
2 The Bar Examiner, June 2013
surreal experience. No public or private transportation was running. All businesses,
restaurants, and stores were closed. Except for law enforcement, which clearly had
control of the city, the streets were empty.
With the arrest of the second suspect on Friday, the city came back to life. I
saw outbursts of spontaneous applause for first responders as I walked around
the downtown area. Everyone was relieved and proud that the bombers had been
identified and found so quickly. In living through these events, we had all become
Bostonians.
The Red Sox won the game at Fenway that Saturday afternoon, but the celebration of Boston Strong at the game is what all will remember. It was an emotional
celebration honoring those who had been killed
transition, NCBE assumed responsibility for
or injured and recognizing law enforcement
MPRE score reporting and—in what proved to
personnel and Boston Marathon runners and
be a challenging undertaking—processing all
volunteers. Special recognition was given to
ADA accommodations requests for applicants
those ordinary citizens who had ignored dan-
taking the MPRE. As always, the NCBE staff,
ger to themselves and unselfishly rushed to
through long hours and determination, made
the injured to give them comfort and aid. Tears
it happen. Special thanks go to LSAC President
flowed. Cheers erupted. And, if the crowd had
Dan Bernstine and his staff for their help and
not already experienced enough, Neil Diamond
cooperation during this transition.
himself stepped out onto the field during the
The Long Range Planning Committee has
eighth inning to lead the crowd in Fenway’s
spent this year intensely digesting the results
traditional singing of “Sweet Caroline”!
of the job analysis that NCBE commissioned as
With another Annual Conference concluded, I find
part of the Content Validity Study launched in 2011 related
myself reflecting on what will soon be the completion of my
to its testing program. The committee, which is charged with
year as NCBE Chair. I don’t know what it is—probably global
making recommendations for the future of NCBE’s testing
warming—but the years keep getting shorter and shorter.
program in light of the job analysis results, will present its
I will move into the “almost a has-been” slot of Past Chair
recommendations to the Board of Trustees at the Board’s next
this August. It is impossible to put into words the pride and
meeting in August.
satisfaction I have felt serving for the past eight years on the
The MBE Committee has been putting the final touches
NCBE Board of Trustees. Erica Moeser has put together a very
on the Civil Procedure questions for inclusion on the Feb-
competent and dedicated group of professionals that make up
ruary 2015 Multistate Bar Examination. Civil Procedure will
the NCBE family in Madison. I don’t know where she finds
become the seventh content area covered on the MBE, culmi-
these folks, but they are all gems who rightfully take great
nating an endeavor that began in 2008.
pride in their role in bar admissions.
In August, Margaret Fuller Corneille of Minnesota will
It is difficult to calculate the considerable amount of
succeed me as the next Chair of the Conference. Peg (as we
time—whether in the form of lost billable hours, lost time
all know her) has a depth of knowledge and experience in bar
with families, or other sacrifices—that is contributed every
admissions that is shared by few. I look forward to working
year by the volunteer members of the Board of Trustees and
with her in the coming year.
of the Conference’s many committees. These volunteers share
a love for our profession and the belief that through a fair
and efficient admissions process we can further strengthen
it. I also offer a special thanks to all of these volunteers’ colleagues, who wouldn’t have put up with the time out of the
office if they had not also been true believers in the future of
Thank you all for your support and enthusiasm this past
year. I have truly enjoyed every minute of it.
Best regards to all.
Sincerely,
our profession.
When I reflect on NCBE’s accomplishments over the past
year, several come to mind. Earlier this year, NCBE launched
a relationship with a different testing agency, the Law
School Admission Council, for the delivery of the Multistate
Franklin R. Harrison
Professional Responsibility Examination. As part of that
Letter from the Chair 3
President’s Page
by Erica Moeser
B
oston
was
____________.
and-pencil testing, how test content may
I can fill in that blank with
be modified in the future, and how law
so many words: memorable
schools are contributing to diversity as
and surreal and gripping come
they produce tomorrow’s lawyers.
to mind. Those who attended NCBE’s
Annual Bar Admissions Conference in
April will no doubt carry images that are
seared into their consciousness. Franklin
Harrison has captured some of them in
Next year we have set our sights on
Seattle for another installment of this
invitational Annual Conference to be
held May 1–4, 2014.
his column. There were so many different
This issue marks the farewell—and
moments for each of us there. Many are
victory—lap for NCBE’s current Chair,
unforgettable.
Franklin Harrison. It has been such a
And then there was the program! The opening
pleasure to work with him, and he has put in many,
keynote by Professor Dan Coquillette assumed a cer-
many hours in fulfilling his role with this organization.
tain poignancy, delivered, as it was, during the city’s
shelter-in-place lockdown on Patriots Day. We are
happy to share it in this issue with those of you who
were not in Boston—and, for those of you who were,
to give you the opportunity to re-experience Professor
Coquillette’s words.
This August Franklin will be succeeded by
Margaret Fuller Corneille of Minnesota—known to all
as Peg. Peg is the Executive Director of the Minnesota
Board of Law Examiners, a post she has held for
almost three decades. Peg came along when I was
early into my career with the Wisconsin Board of Bar
The Boston educational program content spanned
Examiners, and we have been friends across the river
the spectrum of issues that are of great importance to
(the Mississippi, that is) ever since. She will be only
bar examiners, from nuts-and-bolts sessions on testing,
the second bar admission administrator to chair the
character and fitness, and ADA matters, to the lessons
Conference. (Kathryn Ressel, now Kathryn Seagle, of
we can learn from other organizations (such as the Law
Florida was the first.)
School Admission Council, the National Association
for Law Placement, and the American Bar Association),
other disciplines (such as medicine and engineering),
and other nations (such as the United Kingdom).
Many who see the names of the Trustees on the
NCBE letterhead may not realize what expertise, experience, and diversity we have on the NCBE Board of
Trustees. The credentials of the current Trustees are
In addition, the program content tackled the future:
impressive, and that is what it takes to steer a nonprofit
how to predict future conduct of attorneys through
organization so important in the licensing of lawyers. In
pre-admission screening, how to move beyond paper-
a nutshell, and in order of seniority:
Rebecca Thiem of Bismarck, North Dakota, is a
former North Dakota Board Chair and a practicing
lawyer.
The Board is served by a capable staff at NCBE.
Key members include:
Franklin Harrison of Panama City, Florida, is a former Florida Board Chair and a practicing lawyer.
Vicki Millard, Director of Financial Operations
Peg Corneille of St. Paul, Minnesota, is the Executive
Director of the Minnesota Board of Law Examiners.
Penny Gessler, Director of Investigations
Bryan Williams of New York, New York, is the
senior member of the New York Board and a practicing lawyer.
Susan Case, Director of Testing
Mark Carlin of Bethesda, Maryland, is the Chair of
the District of Columbia Board. He recently retired
from the practice of law.
Beth Hill, MBE Program Director
Tom Bice of Fort Dodge, Iowa, is a former Iowa
Board Chair and a trial judge.
Mike Tallman, Associate Director of Information
Technology
Darryl Simpkins of Hillsborough, New Jersey, is
the Chair of the New Jersey Board and a practicing
lawyer.
Brad Gilbert, Counsel and Manager of Human
Resources
Bob Chong of Honolulu, Hawaii, is the Chair of the
Hawaii Board and a practicing lawyer.
Rebecca Berch of Phoenix, Arizona, is the Chief
Justice of the Arizona Supreme Court.
Missy Gavagni of Tallahassee, Florida, is the
Executive Director of the Florida Board of Bar
Examiners.
Kellie Early, Chief Operating Officer
Kent Brye, Director of Information Technology
Mark Albanese, Director of Research
Judy Gundersen, Deputy Director of Testing and
MEE/MPT Program Director
Melissa Cherney, MPRE Program Director
Doug Ripkey, Associate Director of Testing
Claire Huismann, Manager of Publications and
Editor of the Bar Examiner
Myra Andreassen, Manager of Operations
Stacy Littrell, Manager of Testing Services
Janet Riley, Manager of Investigations
It is with great joy that I report that former
NCBE Board Chair Marygold Shire Melli—known to all
as Margo—has been chosen to receive one of the presti-
Cindy Martin of Kansas City, Missouri, is a former
Missouri Board Chair and an appellate judge.
gious Margaret Brent Awards when the American Bar
Bucky Askew of Atlanta, Georgia, is a former
Consultant on Legal Education for the American
Bar Association and a former bar admission administrator in Georgia.
Francisco, California, this August. (See page 60 of this
As this NCBE year ends, Rebecca Thiem’s term on
followed along the trail they blazed. During Margo’s
the Board will conclude. Nominated to join the Board
long career at the University of Wisconsin Law School,
of Trustees is Suzanne K. Richards of Columbus, Ohio.
and in her capacity as a bar examiner and as a leader at
Suzanne recently retired from the practice of law and
NCBE, she epitomized both the intrepid pioneer as well
has served for many years as a member of the Board of
as the generous mentor of so many, including me. All of
Commissioners on Character and Fitness in Ohio.
us at NCBE are very proud of her.
Association conducts its Annual Meeting in San
issue.) The award—long overdue, as far as I am concerned—is intended to recognize women who pioneered in law and who chose to mentor others who
President’s Page 5
The New Entry-Level Legal
Employment Market
by James G. Leipold
Editor’s Note: This article is based on James G. Leipold’s presentation, “An Update on the Legal Employment Market,”
during the session “Critical Issues Affecting Bar Admissions” at the 2013 NCBE Annual Bar Admissions Conference held on
April 18–21, 2013, in Boston, Massachusetts.
J
ust how bad is it?
During the last two years, there has been
an unprecedented amount of writing about
the entry-level legal employment market, as
well as extraordinary scrutiny of the employment
outcomes data that law schools collect and publish.
There have even been a number of class action lawsuits brought against law schools alleging that the
schools fraudulently misrepresented their employment statistics. During the same time, the American
Bar Association has brought further rigor to the
consumer protection regulations that govern what
employment information law schools are required
to disclose.1
In fact the story about the entry-level legal
employment market is a simple one, one that is
explored in some detail in this article. The truth is
that for graduates of many law schools, the job market has long been a scrappy one, and it continues to
be a scrappy market for many law school graduates
in general. Although many employment sectors
continue to provide a predictable number of jobs
for law school graduates despite the upheaval of
the last few years, the one really dramatic change
in the legal employment market has been the loss of
private practice job opportunities at the largest law
firms, disproportionately affecting a population of
law school graduates from certain schools who had
previously been destined for large-firm private prac-
All of this is to say that there is considerably
tice jobs. As these graduates seek alternative employ-
more information available in the public domain
ment opportunities, they often take jobs that would
about the employment prospects for law school
in the past have gone to other graduates, and as a
graduates than there ever has been before, and yet at
result there is a cascading effect that has disrupted
the same time—in part because of the proliferation of
traditional employment patterns at almost every law
extensive Internet publishing, blog posting, and use
school.
of social media—there is a great deal of misinformation about the legal job market that persists and in
many cases has gained ascendency. Nonetheless,
despite the hyperbole and half-truths that proliferate
in the arguments about whether a legal education is
still a worthwhile investment, there is broad agree-
The Post-Recession Landscape:
How Law Firms Have Adapted
and What It Means for New Law
School Graduates
ment that the entry-level legal job market is tough—
In the first half of 2013, we are in a post-recession
certainly tougher than it used to be. Words like bleak
period, although the recovery for the legal sector has
and brutal have even been thrown around to describe
been both slow and more than a bit bumpy. With the
the job market faced by the class of 2012.
reporting of law firm 2012 year-end financial results
by the press, it became clear that some law firms
routine jobs that new associates used to do, particu-
were able to achieve substantial growth in revenue
larly document review, are now done much more
and profits in 2012, while others struggled to main-
efficiently and for a lower cost with the assistance of
tain level earnings.
technology. In addition, sophisticated software and
In general, firms that have continued to produce
growth in profits and revenues have done so by
continuing to cut expenses—and, more specifically,
by further reducing lawyer head count. While the
recession saw many firms letting associates go, the
post-recession period has been marked by reductions in equity partner head count. The point is,
the business model for large law firms in particular
remains in flux, and one result is an ongoing conservative approach to hiring new law school graduates.
Three Forces That Have Changed
the Legal Industry
It is important to understand that the changes facing the legal industry are not just the result of the
recession but really are the result of three significant
online tools are allowing lawyers to complete even
complex tasks with greater speed and efficiency,
cutting down on the number of lawyers needed on a
team. Basically, the law industry, like so many other
industries before it, is finding that routine and commoditizable work of all sorts is being automated,
driving down costs and lowering head count.3
The Force of Globalization
Finally, the third driver in the new legal economy is
the force of globalization. Law firms in North America
must now compete in a price-sensitive global market
for legal services. This means that some legal work
that used to be done in the United States and Canada
is now being done elsewhere for less. Outsourcing to
countries like India and the Philippines has become
routine. Also, as the corporations that are the cli-
forces acting together.
ents of the largest law firms see the value in disag-
The Recession
sophisticated work is being done by non–law firm
Certainly the recession had a dramatic impact.
According to U.S. Bureau of Labor Statistics data, the
legal sector lost about 60,000 jobs at the height of the
recession, and almost 9% of all U.S. associates lost
their jobs. While the market has recovered some of
that lost ground, the legal sector is still down 50,000
jobs from its peak in 2007.2
The Impact of Technology
The second driver in the new or emerging normal is
the impact of technology. Advances in technology
continue to change the legal profession at a rapid
gregating the pieces of big legal jobs, often the less
entities like legal process outsourcers (LPOs). These
LPOs often operate outside of North America, but
increasingly foreign- and domestic-owned LPOs are
also opening operations in lower-cost locales within
North America. Work done by LPOs can range from
tasks such as legal coding and legal transcription to
more complex projects involving legal research, litigation support, document review, contract drafting
and management, legal publishing, and intellectual
property-related services such as patent application
preparation.4
widely available, and information and expertise
Changes to the Legal Industry Are
Predicted to Be Permanent
that were previously available only from lawyers
The impact of these three forces acting together
are now readily available online. Also, many of the
has resulted in a net loss of private practice jobs for
pace. The Internet has made information of all sorts
The New Entry-Level Legal Employment Market 7
lawyers and is driving law firms to grapple with a
new business model in which value has emerged as
the most important factor. For those who still believe
that the current difficulties in the industry are all a
result of the recession and that things will go back
to “normal” once the economy recovers, two very
powerful 2012 year-end reports by industry analysts
argue strongly that there will be no return to the
market that existed in the years leading up to the
recession.
Private Practice Job Opportunities
Dwindle
The net result of these changes has been the erosion
of private practice opportunities at large firms for
new graduates. Law firms, in general, are sticking
with smaller summer programs and reduced entrylevel hiring. As firms continue to value experience,
we have seen lateral recruiting volumes outpacing
entry-level hiring. Going forward, law firms are
revisiting how best to deliver first-year training
The 2013 Hildebrandt Consulting/Citi Private
Bank Client Advisory, which highlights trends in
the legal market and factors that these two institutions believe will impact the legal market in the near
future, makes the case that the legal industry is not
likely ever to return to the way it was before the
recession, noting:
in an environment where corporate clients continue to be unwilling to absorb those costs. With
less live-client, on-the-job training available to new
associates, large law firms are having to find ways
to train new recruits using nonbillable time, making the hiring of new associates more expensive
for firms. Additionally, hiring partners as a group
have expressed their desire to see associates who are
For the legal industry, the results in 2012, another turbulent year, were largely a repeat of
trends that emerged over the prior three years.
In fact, we think it is time to let go of any lingering notion that the industry will revert to the
boom years before the Great Recession anytime
soon. With profit growth and other financial
indices reaching lower setpoints in the past four
years, we anticipate that the current state of the
industry will remain the norm for the foreseeable future.5
more “practice-ready,” which not only means being
legally trained, but also arguably includes exposure
to more experiential learning (both client-based and
simulated); a basic understanding of the business of
running a law firm; exposure to the modern technology tools that lawyers use; and exposure to the business school skill sets of problem solving, working in
a group, project management, and understanding
the client-service business model—as well as strong
writing skills, public speaking skills, confidence, and
initiative.
For recent law school graduates, the impact of
Another year-end advisory put out jointly by
these changes on the entry-level legal hiring mar-
the Georgetown Law Center for the Study of the
ket has been dramatic. Between 2008 and 2011, the
Legal Profession and Thomson Reuters Peer Monitor
National Association for Law Placement (NALP) has
6
reached the same conclusion. Both reports argue
measured a 14% drop in private practice opportuni-
that the growth in annual revenues, profits per part-
ties, with almost all of that erosion happening at
ner, and billing rates are likely to be much lower
large firms. Between 2009 and 2011, NALP has mea-
going forward than they were prior to the recession.
sured a 17% drop in mean salaries, again the result of
job erosion at the largest law firms.7 In broad strokes,
we have seen much higher rates of unemployment
and underemployment for law school graduates,
fewer graduates working as lawyers and more graduates working in business and law-related jobs, more
graduates seeking alternative careers of all sorts, and
more graduates having to compete with displaced
lawyers for jobs.
A Closer Look at the Class of 2011
Employment Rate Reveals EntryLevel Job Market Weaknesses
A Rise in Temporary and Part-Time Work
Of those members of the class of 2011 who did have
jobs, 13% of all the jobs reported were temporary,
lasting less than one year. In addition, 12% of the
Employment Rate Lowest Since the
Early 1990s
Along with the ABA, NALP measures the employment of each graduating class on February 15,
approximately nine months following graduation, to
allow time for the bar exam and licensing. At the time
of writing this article, the class of 2011 is the most
recent class for which we have data, and analyses for
the class of 2012 are under way. Early snapshot data
from the ABA on the class of 2012, however, suggest
that its employment profile will not be much differ8
ent from that of the class that preceded it.
Nine months after graduation, only 85.6%9 of
class reported working in part-time positions compared to only 6% three years ago. With these two
factors combined, 7% of all jobs were both temporary
and part-time (and only 82% of jobs were both fulltime and reported as lasting one year or more). ABA
analysis has suggested that only 54.9% of graduates
reported jobs that were long-term, were full-time,
and required bar passage, a number that has been
widely reported in the press.10
Employed But Looking for Work
Another marker of the weakness of the job market
is that a much higher percentage of the class of 2011
indicated that even though they were employed,
they were still looking for work (25% compared to
the class of 2011 for whom the employment status
16% in 2008), suggesting that graduates took jobs
was known were employed in jobs of any sort, only
they may not have been satisfied with simply to
65.4% of the class had jobs for which bar passage
be able to earn some money to offset their living
was required, and 12.1% of the class remained unem-
expenses and begin paying their student debt.
ployed. The class of 2011 had the lowest employment
rate of any class since the last big recession in the
early 1990s, when the nine-month employment rate
An Increase in Solo Practitioners
for the classes of 1993 and 1994 was measured at
And in yet another sign of the difficult job market,
83.4%.
the number of new graduates entering private practice as solo practitioners has doubled in two years,
Low as the employment rate was nine months
with 6% of all private practice jobs for the class of
after graduation, the number for the class of 2011 is
2011 identified as solo practices. This is twice the
higher than we might expect—and in fact the over-
rate for solo practices that was measured before the
all employment rate on its own masks a number of
recession, when the number was routinely about 3%.
weaknesses in the entry-level job market faced by
The change in that number suggests that when jobs
this class.
are scarce, a higher percentage of graduates opt to
work as solo practitioners because they are unable to
kind of jobs law school graduates held. The majority
secure legal practice jobs elsewhere.
held jobs for which bar passage was required. This
Examining the Class of 2011 EntryLevel Job Market
is a good proxy for practicing law. The second largest number held jobs for which a J.D. provided an
advantage but bar passage was not required. These
There is reason to believe that the employment pro-
are usually law-related jobs. There were also smaller
file for the class of 2011 will come to be seen as the
groups of graduates who found other professional
very bottom of the curve in terms of the decline in
and non-professional jobs. A very small percent-
the job market following the recession. Certainly the
age of the class continued with full-time studies of
class of 2011 in many ways was the class that experi-
some sort, generally but not always pursuing an
enced the worst of the recession. As members of this
LL.M. degree, and the remainder of the class was
class were preparing to apply to law school, the legal
still unemployed nine months after graduation, with
economy was booming, and they had every reason
a subset of those saying that they were not seeking
to believe that it would continue to boom. During the
a job.
fall of their first year of law school, Lehman Brothers
collapsed. The summer after their second year of law
school, the summer of 2010, was the summer that the
largest number of law firms canceled their summer
programs, and as members of the class graduated
in 2011 they were facing a job market crowded with
graduates and associates who had been deferred
and/or displaced during the recession.
While historically the distribution of the job
types taken by new graduates has not changed much
from year to year, over the last four years there have
been some fairly significant changes. Most notably,
of those graduates for whom employment was
known, only 65.4% obtained a job for which bar passage was required. This compares with 76.9% for the
class of 2007 and is the lowest percentage NALP has
A Drop in Jobs for Which Bar Passage Is Required
There are several ways of describing the entry-level
job market. Table 1 shows what jobs law school graduates for whom employment was known have taken
for the last five years by job type, which means what
ever measured for this category. This means in general that fewer graduates found jobs actually practicing law. There were offsetting jumps in the percentage of graduates who obtained jobs for which a J.D.
was an advantage, and of course big jumps in the
number who were still
unemployed nine months
Table 1: Employment Status: Initial Job Types for the Classes of 2007–2011
after graduation.
(as of February 15, 2012)
Private Practice Jobs
Job Type
2007
2008
2009
2010
2011
Bar passage required
76.9%
74.7%
70.8%
68.4%
65.4%
J.D. an advantage
7.7%
8.1%
9.2%
10.7%
12.5%
Other professional
5.1%
4.9%
5.4%
5.6%
5.3%
Other non-professional
1.3%
1.3%
1.8%
1.9%
1.9%
Another way to look at
Continuing studies
2.3%
2.4%
3.1%
2.9%
2.3%
the entry-level job mar-
Seeking job
4.1%
5.4%
6.0%
6.2%
9.6%
ket is by initial employer
Not seeking job
1.7%
2.3%
2.7%
3.2%
2.5%
type—in other words,
Drop, While Business
and Industry Jobs
Increase
who were the graduates working for? Here too,
In looking at the five-year spread of these num-
historically, despite fluctuations in the economy,
bers, what is particularly noteworthy is the drop
the kinds of employers that law school graduates
in private practice jobs by almost seven percentage
work for have been relatively constant over time.
points since 2008 and by five percentage points in a
The majority of law school graduates, not surpris-
single year, from 2009 to 2010. This figure had previ-
ingly, enter into private practice, but for the first time
ously fluctuated only between 55% and 58% since
ever that number fell below half of the employed
1993, and only in 1974 was this number lower, at
graduates for the class of 2011. Table 2 shows that
a time when NALP data were less comprehensive.
just 49.5% of the employed members of that class
This drop in private practice jobs was absorbed by
for whom employment was known obtained jobs in
incremental increases in some of the other employer
private practice.
types, but notably in business and industry. Business
Public service jobs, defined broadly, are the next
most likely destination for recent graduates. If we
total military and other government jobs, judicial
clerkships, and positions with public interest organizations, these public service positions combined
and industry is a broad category that represents
all kinds of non–law firm private-sector work, and
for the class of 2011 employment in this category
reached a historic high.
try. Over 18% of the jobs taken by the class of 2011
How the Erosion of Private
Practice Jobs Has Affected Law
School Graduates
were in business and industry, a rate that has more
The net erosion of private practice jobs and the
than doubled since 1989 (and is the highest level
growth of jobs in business and industry are part of a
of business-sector employment measured in the 35
larger historical change in the job market, the origins
years that NALP has been collecting this data) and
of which precede the recession but which was accel-
that indicates the only real growth area by employer
erated by the recession. As noted earlier, the change
type. And of course a very small percentage of the
is the result of a competitive global market for legal
class of 2011 took academic jobs of some type—these
services, the growth of foreign and domestic legal
could be jobs of any type with a law school, a college,
process outsourcers, and the downward pressure on
or a secondary or primary school of some sort.
rates by corporate clients. And again it is important
accounted for about 29% of all jobs taken. The third
mostly likely destination was business and indus-
to emphasize that nearly all of
this private practice job erosion
Table 2: Employment Status: Initial Employer Types for the Classes
happened at the largest law
of 2007–2011 (as of February 15, 2012)
firms.
Employer Type
2007
2008
2009
2010
2011
Private practice
55.5%
56.2%
55.9%
50.9%
49.5%
Offers Fall for 2L Summer
Business and industry
14.1%
13.4%
13.5%
15.1%
18.1%
Associate Positions in Large
Government and military
11.7%
11.8%
11.4%
12.8%
11.9%
Law Firms
Judicial clerkships
9.8%
9.6%
8.7%
9.3%
9.3%
The result of private practice job
Public interest
5.8%
5.4%
5.7%
6.7%
7.5%
erosion is starkly illustrated by
Academic
1.8%
2.3%
3.5%
3.7%
3.0%
looking at the median number
of offers for 2L summer associate positions by law
that they are extending in this climate, by contrast,
firms differentiated by firm size. (See Table 3.) The
the number of offers made by the smallest firms has
most dramatic changes have happened at the larg-
actually grown in the period following the recession.
est firms of more than 700 lawyers, where median
Private Practice Employment Shifts to Smaller
summer offer rates fell from 30 in 2007 to just 8 in
2009 and now have hovered in the 11 to 13 range for
Firms
three years. By contrast, mid-sized firms of 251 to 500
Another way to illustrate the loss of large law firm
lawyers actually made more offers than larger firms
jobs is to look at the distribution of law firm jobs
in 2011, coming in at a median of 14.5, but in the
taken by the graduating class differentiated by law
summer of 2012 that number fell somewhat precipi-
firm size. (See Table 4.) Despite the publicity sur-
tously to 8.5 for the class of 2014. That drop affected
rounding large law firms, very small firms of 2 to
the overall median number of offers, which fell back
10 lawyers have long been the most common des-
to 8 in 2012, after rising for two consecutive years fol-
tination for those entering private practice. For the
lowing the recession. While most of the large firms
class of 2011, more than 65% of those who entered
remain very conservative in the number of offers
private practice took jobs at firms of 50 lawyers or
fewer, and almost 43% of all private
Table 3: Median Number of Summer Offers Extended to 2Ls, 2007–2012
Firm Size
practice jobs were with firms of just 2
to 10 lawyers. Note that only just over
2007
2008
2009
2010
2011
2012
16% of law firm jobs were at firms
701+
30
18.5
8
12.5
11
12
with more than 500 lawyers. While it
501–700
16
11
19
19
13
13
has always been true that small firms
251–500
19
8
9
10
14.5
8.5
101–250
17
12
6
9
8
7
100 or fewer
4
4
4
3
4.5
5
All Employers
15
10
7
9
10
8
provide many jobs for new law school
graduates, this shift from employment with larger firms to employment
with smaller firms has been particularly dramatic over the last two years.
Prior to the recession, jobs with firms
Table 4: Employment in Law Firms by Size of Firm for the Class of 2011
of 500 or more lawyers made up about
(as of February 15, 2012)
25% of all private practice jobs for new
Size of Firm
Percent of Private Practice Jobs
Total
graduates.
Solo
6.0%
2–10
42.9%
11–25
10.5%
26–50
6.1%
51–100
5.0%
entry-level legal employment market
101–250
5.7%
has been a significant drop in aggre-
251–500
5.0%
gate starting salaries. This has hap-
501+
16.2%
Unknown
2.6%
Starting Salaries Fall for
the Class of 2011
65.5%
31.9%
Another result of the turmoil in the
pened not so much because any individual employers began paying less
than they had in the past (though some large law
salaries for law school graduates occur along a bi-
firm salaries did drop from $160,000 to $145,000),
modal distribution, creating an inverted bell curve.
but rather because the loss of jobs has happened
See Figure 1, with its two distinct peaks. The left-
mostly at the highest end of the pay scale, so there
hand peak of the graph reflects salaries of $40,000
have been fewer relatively high-paying jobs and
to $65,000, which collectively account for about 52%
more relatively low-paying jobs for recent graduates.
of reported salaries. The right-hand peak shows that
As a result, the median starting salary for new law
salaries of $160,000 account for about 14% of re-
school graduates fell 17% over two years (from 2009
ported salaries. By contrast, for the class of 2008,
to 2011), and the mean salary fell 15% over that same
23% of all salaries reported were $160,000, and for
period. The median salary for the class of 2011, based
the class of 2009, 25% of all salaries reported were
on those working full-time and reporting a salary,
$160,000. The loss of $160,000 starting salaries cor-
was $60,000, down from $72,000 for the class of 2009.
responds of course to the loss of the entry-level jobs
(See Table 5.)
at firms of more than 500 lawyers.
Similarly, the reported median salary at law
The mean salary is also indicated in Figure 1,
firms was $85,000 for the class of 2011, compared
marked by the solid vertical line. For the last five
with $130,000 for the class of 2009 (falling a whop-
years or more, the mean has tended to fall in the val-
ping 35%), again reflecting the shift in the distribu-
ley between the two peaks, reflecting a salary that not
tion of law firm jobs from larger firms to smaller
many graduates make. With the recession, however,
firms, as well as salary adjustments on the part
the mean has drifted to the left, bringing it closer to
of some firms. Although salaries of $160,000 still
predicting salaries students are likely to make but
prevail at the largest firms, their share of jobs has
still overstating prospects for many students.
dropped, creating further downward pressure on
the median. Finally, the mean salary at law firms was
$97,800 for the class of 2011, compared with $115,000
two years ago, having fallen 15% over that same twoyear period.
The dotted vertical line to the left represents the
adjusted mean salary. Because not every graduate
reports a starting salary, and because unreported
salaries tend to be at the lower end of the scale, the
mean of the reported salaries will always overstate
Starting salaries for law school graduates dis-
the true mean to some extent. NALP uses a statisti-
tribute themselves in a peculiar way. Rather than the
cal weighting methodology to calculate an adjusted
ordinary bell curve that might be expected, starting
mean, which approximates what the true mean
Table 5: Starting Salaries for the Classes of 2009–2011
2009
2010
2011
Percentage Decrease from 2009 to 2011
Median salary
$72,000
$63,000
$60,000
17%
Mean salary
$93,000
$84,000
$78,650
15%
Median firm salary
$130,000
$104,000
$85,000
35%
Mean firm salary
$115,000
$106,000
$97,800
15%
All Employment Types
Employment at Law Firms
Percentage of Reported Salaries
Figure 1: Distribution of reported full-time salaries for the class of 2011
would be if every job reported had a reported salary
Starting Salaries by Other Main Employment
to go with it. As indicated in Figure 1, the reported
Sectors
mean is $78,653 for the class of 2011, and the adjusted
The range and distribution of starting salaries in each
mean is somewhat less, at $73,984. Remember, however, that as Figure 1 makes plain, graduates are
more likely to make either more or less than either of
these means than they are to make a salary close to
the mean itself.
of the other main employment sectors are quite compressed compared to private practice, and in general
the medians are lower.
Government Jobs, Judicial Clerkships, and Public
Interest Jobs
Starting Private Practice Salaries by Firm Size
Government jobs, which account for about 12% of all
When we look at starting private practice salaries by
firm size, we can easily see why the salary distribution in Figure 1 looks the way it does. See
Table 6, which shows median starting salaries
jobs taken by class of 2011 graduates, are distributed
fairly evenly between federal, state, and local set-
Table 6: Median Starting Salaries by Size of Law Firm
by size of law firm. In fact, 46% of all private
Number of Lawyers in Firm
Median Starting Salary
practice jobs pay $75,000 or less. There are
2–10
$50,000
exceptions of course, but salaries of more than
11–25
$65,000
$100,000 are largely confined to firms of more
26–50
$75,000
than 100 lawyers (only about 27% of all private
51–100
$88,000
101–250
$110,000
251–500
$145,000
501+
$160,000
practice jobs), and only those at the very biggest
firms are making $160,000 (only about 16% of
all private practice jobs).
tings, with corresponding median starting salaries of
for the class of 2011. Only 29% of the jobs in the busi-
$62,500 (federal), $44,000 (state), and $50,000 (local).
ness and industry category required bar passage.
Judicial clerkships, which account for about 9% of
The aggregate salary information for this category
all jobs taken by class of 2011 graduates, are most
is less meaningful because of the diversity of sala-
prevalent at the state level, accounting for more than
ries reflected in the wide range of jobs taken in this
half of all clerkships, with the fewest opportunities
sector, from service jobs paying an hourly wage to
to clerk occurring in local courts, which provide less
high-level management positions taken by graduates
than 9% of all clerkships. Highly coveted federal
with extensive prior work experience. For the class
clerkship opportunities have declined a bit for recent
of 2011, the median starting salary for business and
graduates over a longer arc of time and currently
industry jobs was $65,000.
account for about 38% of all clerkship opportunities. Federal clerkships pay the most, with a median
Academic Jobs
starting salary of $60,000; they are followed by state
The last sector worth noting is academia. This is also
court clerkships, with a median starting salary of
a broad category and represents jobs of every sort in
$45,000; and local court clerkships pay the least, with
education—whether with a law school, a college, or
a median starting salary of $42,000. More than 7%
a secondary or primary school of some sort. One sig-
of the class of 2011 went directly into public inter-
nificant difference between the recent recession and
est employment, which pays the least of all, with a
those that preceded it is that this time law schools
median starting salary of just $45,000.
have taken on a very active role in employing their
own graduates. Startlingly, law school–funded jobs
Business Sector Jobs
It is less easy to generalize about the broad business
sector, where more than 18% of employed graduates
from the class of 2011 found jobs (the highest level
of business-sector employment measured in the 35
years that NALP has been collecting this data, and
a figure that has more than doubled in the last 24
years). This is the most diverse category of employment and includes both those people working as
lawyers directly for industry and, much more commonly, those working in non-lawyer capacities in
represented 5% of all jobs for class of 2011 graduates,
and many jobs in this academic category are law
school research assistantships or other law school–
based temporary positions. The other jobs in law
schools are admissions jobs, career services jobs, and
other full-time professional roles in the law school,
including law school teaching of any sort. Salaries
for this sector were also fairly low and fairly compact
in range, with a median of just $45,000, the same as
public interest job salaries.
Street jobs with firms like Goldman Sachs at one
The Role of Law Schools as
Employers: A Dramatic Increase in
Bridge-to-Practice Programs
end of the spectrum and, at the other end, lower-
It is worth saying something more about the role
paying jobs in service-oriented or retail settings.
that law schools are currently playing in employ-
This category also includes jobs working for legal
ing law school graduates. Since the recession, law
temporary placement agencies, a job category that
schools have been very active in trying to mitigate
represented 11% of all jobs in business and industry
the impact of the tough job market for graduates by
every possible kind of job. It includes jobs working
as consultants for firms like McKinsey and Wall
creating both on-campus and off-campus postgraduate jobs for their students. One of several ways that
law schools have employed their own graduates
is through bridge-to-practice programs. Bridge-topractice programs provide law school graduates
with funding for some sort of temporary employment with a third party that will give them an
opportunity to enhance their practical legal skills as
they transition into the practice of law. While some
of these fellowship programs are long-standing, the
incidence of these programs and the level of funding
have both increased fairly dramatically as a result of
the recession. Bridge-to-practice employment opportunities are found with public interest organizations,
government agencies, members of the judiciary, and
even private employers.
Conclusion
The job market for new law school graduates remains
extremely competitive, and the widespread press
attention paid to the poor job market likely accounts,
at least in part, for the recent dramatic downturn in
law school applications. (Data from the Law School
Admission Council suggest that law school applications are down more than 30% over the two most
recent years.) There are no indications that a quick
turnaround is in sight. Law firm recruiting volume
for the class of 2014 bobbled a bit, suggesting that
recovery for law firms is not unfolding along a
smooth upward curve.
Early ABA data for the class of 2012 indicate both
increased unemployment but also an increase in the
number of graduates finding full-time employment
Survey research conducted by NALP in 2012,
to which about 40% of all law schools provided
a response, revealed that 55% of the responding
law schools reported having some sort of bridgeto-practice program for the class of 2011. These
programs were most common in the largest schools
and in schools in the largest metropolitan areas. The
working as lawyers.12 Law schools continue to be
active in providing funding for initial employment,
with the new ABA data showing that one large law
school provided employment of some sort for 23% of
its graduates from the class of 2012.13 Updated NALP
data for the class of 2012 will be available online
soon after publication of this article.14
research showed that fellowships were most often
It is likely that the class of 2011 will come to be
for a period of six months or less. Monthly stipends
seen as representing the nadir of the employment
for these fellowships ranged dramatically from $417
curve, and smaller graduating classes and a gradu-
to $3,666 per month, with a median stipend of $1,225
ally improving economy are likely to boost the
and a mean stipend of $1,558. Total per-school fund-
employment prospects for future classes—at least
ing ranged from $8,400 to $1,463,700, with median
gradually. NALP will continue to measure the
funding of $175,000 and mean funding of $265,359.
employment of law school graduates and will con-
The number of fellowships per school ranged from
tinue to provide detailed aggregate reporting on the
1 to 111, with a median number of fellowships per
employment outcomes for each graduating class for
school of 30 and a mean of 38. Forty-eight percent
use by all those with an interest in legal education.
of fellowship placements were with public interest
organizations, 30% with government, 12.5% with
courts, and 7% with law firms (the remainder were
in corporate or other settings).11
Notes
1.[Editor’s Note: See David Yellen, Advancing Transparency
in Law School Employment Data: The ABA’s New Standard
509,” 81:4 The Bar Examiner 6–13 (Dec. 2012), available at
http://www.ncbex.org/assets/media_files/Bar-Examiner/
articles/2012/810412beYellen.pdf.]
2.
See, e.g., The American Lawyer’s recent parsing of the legal
sector jobs numbers from the U.S. Bureau of Labor Statistics:
Tom Huddleston, Jr., Legal Sector’s April Flowers: 2,100 New
Jobs, The Am Law Daily, May 3, 2013 (“The recent gains
have pushed the total number of professionals employed in
the legal industry to 1.13 million—10,000 more than in April
2012 and the highest number since the same month four
years ago. Overall, though, there are currently some 50,000
fewer people employed in the legal industry than there
were at its peak in May 2007.”), available at http://www
.americanlawyer.com/PubArticleALD.jsp?id=
1202598653932&slreturn=20130410095441.
3. For an excellent overview of the force of technology at
work, see the first chapter of Richard Susskind, Tomorrow’s
Lawyers (Oxford University Press 2013).
4.
See Mayer Brown, Is Legal Process Outsourcing Right for
Your Company?, 12 February 2010, available at http://www
.mayerbrown.com/publications/is-legal-process
-outsourcing-right-for-your-company-02-12-2010/.
5.
Hildebrandt Consulting LLC & Citi Private Bank, 2013 Client
Advisory (2013), available at http://hildebrandtconsult.com/
uploads/Citi_Hildebrandt_2013_Client_Advisory.pdf, at 1.
6.
Georgetown Law Center for the Study of the Legal Profession
& Thomson Reuters Peer Monitor, 2013 Report on the
State of the Legal Market (2013), available at http://www
.law.georgetown.edu/continuing-legal-education/
executive-education/upload/2013-report.pdf.
7.
To briefly define the terms mean and median used in this
article: The mean is the average value of a set of numbers
and thus can be affected by unusually high or low numbers.
The median is the middle value in a list of numbers ranked
from high to low, or the point at which half the numbers are
at or above that value and half are at or below. The median,
therefore, provides a summary measure that is not affected
by extremely low or extremely high values.
8. ABA Now, ABA Releases Class of 2012 Law Graduate
Employment Data, http://www.abanow.org/2013/03/aba
-releases-class-of-2012-law-graduate-employment-data/
(last visited May 13, 2013). See also posting of Mark Hansen to
ABA Journal, http://www.abajournal.com/news/article/
barely_half_of_all_2012_law_grads_have_long-term_full_
time_legal_jobs_data_/ (Mar. 29, 2013, 11:50 CDT).
9.
The 85.6% figure includes 0.5% of employed graduates who
did not specify type of job held. These graduates are therefore not represented in Table 1 on page 10, which shows
initial job types for the classes of 2007–2011.
10. ABA Now, supra note 8. See also posting of Debra Cassens
Weiss to ABA Journal, http://www.abajournal.com/news/
article/only_55_percent_of_2011_law_grads_had_fulltime_long-term_legal_jobs_analys/ (June 19, 2012, 6:33
CDT).
11. See NALP, Bridge to Practice Survey Report, http://www
.nalp.org/bridge_to_practice_report.
12. ABA Now, supra note 8.
13. Id.
14. See NALP, Class of 2012, http://www.nalp.org/classof2012.
James G. Leipold is the Executive Director of the National
Association for Law Placement (NALP). Prior to joining NALP in
2004, he worked for the Law School Admission Council. Leipold
was previously the Director of Admission at Temple University
School of Law, where he was also an instructor in legal writing
and research. Leipold earned his bachelor’s degree from Brown
University and his J.D. from Temple University School of Law.
He speaks and writes frequently on trends in legal employment
for recent law school graduates.
Creating an International Network
of Lawyer Regulators:
The 2012 International
Conference of Legal Regulators
by Laurel S. Terry
Introduction:
The Power of Networks
United States. Canada has the Federation of Law
Networks are powerful. This is true both person-
the Conference of Regulatory Officers and the Law
ally and professionally. For example, you are reading this article because the National Conference
of Bar Examiners and its Bar Examiner magazine
exist to connect “courts, academia, bar admission
administrators, members of bar examining boards
and character committees, and others with special
interest in the bar admissions process.” Many of you
have attended NCBE’s conferences, which serve as
a conduit for sharing knowledge, approaches, and
perspectives regarding bar admissions issues.
Networks in the Legal Profession
Societies of Canada, Europe has the Council of Bars
and Law Societies of Europe, and Australia has
Council of Australia.
Networks in Other Professions
Law is not alone in recognizing the power of professional networks. Regulators in other fields
have both domestic and international networks.
For example, not only is there a North American
Securities Administrators Organization, but there
is also an International Organization of Securities
Commissions, the latter of which brings together
securities regulators from many different countries. There are international networks for anti-
If you had any doubt about the power of profes-
trust regulators (the International Competition
sional networks, a quick glance around the U.S. legal
Network), for labor regulators (the International
profession should convince you of the usefulness of
Labor Organization), for banking regulators (the
these types of organizations. The Conference of Chief
Basel Committee), and for insurance regulators (the
Justices and the National Center for State Courts
International Association of Insurance Supervisors),
provide a network for state Supreme Courts. The
among others.
National Organization of Bar Counsel (NOBC) provides a network for lawyer disciplinary authorities.
Public prosecutors and public defenders have networks. The Association of Professional Responsibility
Lawyers was created to provide, among other things,
a network for lawyers who represent lawyers.
It is clear that networks are also important
to legal profession regulators located outside the
When I was getting ready to give a talk about
the need to create an international network of lawyer
regulators, I sent out an e-mail to my faculty colleagues asking for examples of international regulator networks in the fields within which they taught.
By the end of the day, I was inundated with examples. In short, regulators in many, many fields have
created international networks.
The Need for an International Network of Lawyer
San Francisco in conjunction with the NOBC Annual
Regulators
Meeting (and right before the ABA Annual Meeting).
Given the power of networks, it is perhaps surprising that there hasn’t been an international network
that could link bar admission authorities (or other
types of lawyer regulators) from around the world.
There are certainly multi-country regional regulator
networks such as the NOBC, which includes disci-
Why the Time is Ripe for an
International Network of Lawyer
Regulators
Regulators Share Common Concerns
plinary counsel from the United States, Canada, and
As I have written elsewhere,2 I believe the time is
Australia; and the Council of Bars and Law Societies
ripe to establish an international network of lawyer
of Europe, which is known as the CCBE and serves
regulators. In my view, an international network
as an umbrella organization for European bar asso-
would be a useful development even if U.S. lawyer
ciations, many of which have regulatory functions.
regulators didn’t have to deal with the effects of globalization and lawyer mobility. After all, regulators
There are international networks for specialized groups within the legal profession, such as
around the world face many of the same questions
during the different stages of lawyer regulation:
the International Association of Prosecutors, the
International Association of Law Schools, and the
International Institute of Law Association Chief
Executives. The International Bar Association has
a Bar Issues Commission, some of whose members
include lawyers who are officers of or highly placed
within bars or law societies that have a regulatory function. There is not, however, an organization
devoted to those individuals whose “day job” is
lawyer regulation. • Admissions stage: How can a regulator predict or evaluate competency?
• Conduct regulation stage: What rules and
tools are available to raise standards, minimize risks, and achieve the jurisdiction’s
regulatory goals?
• Discipline stage: What procedures should be
used to weed out “bad apple” lawyers?
This situation arguably changed in September
Research has shown that collaborative discus-
2012 in London, with the inaugural Inter-
sions can help decision makers better understand
national Conference of Legal Regulators. NCBE
the issues, their own perspectives, and the available
Chair Franklin Harrison attended this conference
options.3 Networks can help facilitate these types of
and wrote about it briefly in his column in the
collaborative discussions.
December 2012 issue of the Bar Examiner.1 This article
provides additional details about that conference,
explains why I think it is a useful endeavor, and sug-
The Impact of Global Trade on U.S.
Legal Services
gests why NCBE supporters might also want to sup-
In my view, globalization has made the case for an
port the establishment of this kind of international
international network of lawyer regulators even
network. Among other things, one could support
stronger. Publications of the U.S. International Trade
this network by attending the second international
Commission and the World Trade Organization
conference, which will be held in August 2013 in
have documented the growth in international trade
Creating an International Network of Lawyer Regulators 19
in legal services and the growth in U.S. legal services
4
exports and imports. Other publications have documented the dramatic growth in multinational law
firms.5 These statistics should not come as a surprise,
since lawyers follow their clients around the globe.
An Increase in Foreign-Educated Applicants to the
U.S. Bar
Regardless of whether these globalization factors
are the reason, it is undeniable that there has been a
dramatic increase in the number of foreign-educated
Consider, for example, the 2012 U.S. trade sta-
applicants who take a U.S. bar exam. Starting in 1992,
tistics. In 2012, every U.S. jurisdiction except Hawaii
NCBE has collected annual statistics that show the
and the Virgin Islands had merchandise exports
number of foreign-educated applicants who took the
that exceeded one billion dollars. (These statistics
bar examination in each state. These statistics show a
are even more impressive when you realize that
significant increase over time. In 2012, 5,916 foreign-
these 2012 export statistics capture only merchandise
educated applicants took the bar exam. This repre-
exports and do not include service exports from U.S.
sents more than a 20% increase in the past 5 years
jurisdictions.) Although not all of these billions of
(4,869 applicants in 2007), almost an 80% increase in
dollars of state exports will have required lawyers,
the past 10 years (3,299 applicants in 2002), and more
U.S. and foreign lawyers were probably involved in
than a 500% increase since 1992, when 1,080 foreign-
many of these deals. This type of cross-border legal
educated applicants took the bar exam and NCBE
practice, along with globalization and technology,
began publishing these statistics.9
6
has led to new issues, such as determining the practice rights of foreign lawyers and determining which
jurisdiction’s ethics rules apply to globally mobile
lawyers.7An international network would help regulators learn from one another as they confront these
types of issues.
Some people may assume that the increase in
foreign-educated applicants is found only in New
York and California. While those two states have—
by far—the most foreign-educated applicants, the
phenomenon is not limited to those states. The number of U.S. jurisdictions in which foreign-educated
Global trade may also help explain the increased
applicants sat for a bar exam has increased by more
attractiveness of a U.S. law license for foreign-
than 40% in the past 10 years, going from 20 jurisdic-
educated lawyers. Some of these foreign-educated
tions in 2002 to 29 jurisdictions in 2012. In the last 10
lawyers may want to work in the United States rep-
years, in states other than New York and California,
resenting outbound U.S clients or inbound foreign
the number of foreign-educated applicants more
clients. But others may want a U.S. license even
than tripled: excluding California and New York,
though they plan to practice outside the United
there were 140 foreign-educated applicants in 2002
States. There are multiple reasons why these lawyers
compared to 429 such applicants in 2012.10 In a
might want a U.S. law license, such as the “signal-
2009 survey, bar admission authorities said that
ing” or credentialing effect that U.S. bar licensure can
they would welcome help with issues related to bar
convey or the greater scope of practice provided by
admission applications from foreign-educated grad-
having both a foreign and a U.S. law license. In some
uates, indicating their need to adapt to this growing
cases, the regulatory structure in the foreign country
trend.11
has created a situation in which the only way for a
local lawyer to work in a foreign law firm is to give
As these statistics demonstrate, U.S. bar admis-
up his or her local license and practice using a for-
sion authorities now have to be prepared to deal
8
eign law license, such as a U.S. or U.K. license.
with inbound foreign lawyers and to recognize that
many of “their” lawyers will also be crossing jurisdictional boundaries. This is one of many reasons
why U.S. bar admission authorities might want to
be able to locate their foreign counterparts and learn
more about their respective systems.
The 2012 International Conference
of Legal Regulators
It is against this backdrop that the 2012 International
Conference of Legal Regulators must be understood.
This conference, held in London on September 27–28,
was sponsored by the U.K. Solicitors Regulation
Authority (SRA). The SRA has been recognized by
the U.K. Legal Services Board as the frontline regulator for solicitors in England and Wales. (The Legal
Services Board is a new regulatory entity that was
• Hon. Gregory Mize, Judicial Fellow at the
National Center for State Courts and staff
member of the Conference of Chief Justices’
International Agreements Committee;
• Robert Hawley, Deputy Executive Director
of the State Bar of California; and
• Gene Shipp, Chief Regulatory Counsel of the
District of Columbia Office of Bar Counsel
and former President of the National
Organization of Bar Counsel.
Also attending the conference from the United States
was Ellyn Rosen, who is Regulation Counsel for
the ABA Center for Professional Responsibility and
was Counsel for the Center’s Commission on Ethics
20/20.
established by the U.K. Legal Services Act of 2007;
it has oversight responsibility for all of the frontline
legal services regulators. For example, in addition to
authorizing the SRA, the Legal Services Board has
recognized the Bar Standards Board as the frontline
regulator for barristers in England and Wales and
has oversight authority over this entity.)12
The Conference Attendees
Conference Sessions for Everyone
The London conference included two full days of
programming and two evenings with social events
(see the sidebar on page 22 for a list of the conference
sessions; see the sidebar on page 25 for a summary of
the social events.) The program included some sessions that were of particular interest to bar admission
authorities, such as “Competence on Admission,”
More than 100 professionals from 30 countries in
at which NCBE Chair Franklin Harrison spoke and
Africa, Asia, Australia, Canada, Europe, the United
which explored what regulators need to know about
Kingdom, and the United States attended the 2012
applicants beyond their having fulfilled admission
International Conference of Legal Regulators. The
requirements. It also included sessions that were of
United States had representatives who were involved
particular interest to disciplinary authorities, such
in all three stages of lawyer regulation: admissions,
as “When Things Go Wrong,” which examined how
conduct regulation, and discipline. These conference
regulators can spot problem signs at an early stage
attendees were
and take steps to protect clients. Some sessions, such
• Franklin Harrison, Chair of the National
Conference of Bar Examiners;
• Hon. Michael G. Heavican, Chief Justice of
the Nebraska Supreme Court and PresidentElect of the Conference of Chief Justices;
as “Tools for Setting and Monitoring Standards,”
were of particular interest to those regulators who
have to adopt conduct rules or standards; this session focused on the experience of regulatory bodies
in using benchmarking surveys and risk profiles to
raise standards.
The 2012 International
Conference of Legal Regulators:
Conference Sessions
• Regulating the Changing Legal Market
• The Regulator’s Identity Crisis
SRA had asked conference attendees to answer
a series of questions about lawyer regulation
and their organizations. Among other things,
the questions asked for the name of the organization, the jurisdiction it covered, its legislative or other authority, its regulatory functions
and regulated populations, contact information
• Proactive Regulation
(and key individuals), and recent initiatives.
• Competence on Admission
The results were assembled and distributed in
• The Challenge of Raising Professional Standards
(parallel workshops):
• Tools for Setting and Monitoring Standards
• Raising the Standards of Individual Practitioners
• Regulating Law Firms
• When Things Go Wrong
London and are also available on the conference
website’s Regulators’ Intranet.
While not all conference attendees provided information for the Directory of
Regulators, the document assembled for the
conference has laid the groundwork for a useful
ongoing project. As bar examiners throughout
• Non-Lawyer Involvement in the Delivery of Legal Services
the United States may already have learned
• Scope for Regulatory Co-operation (parallel workshops):
the hard way, there isn’t a single resource they
• Information Sharing—What Can Regulators Tell Each Other?
• Hot Topics—What Trends and Issues Worry Regulators?
• Other Influences on Regulatory Policy and Practice
• Where Next?—Future Collaboration
can go to that can tell them the titles that regulated lawyers use in various countries around
the world (such as solicitor or barrister) or the
entity or entities responsible for regulating each
particular type of lawyer. Thus, the Directory of
Regulators has the potential to fill a very important resource gap in a world of increased global
Many of the sessions, however, were designed
lawyer mobility.
to be of interest to all regulators attending the conference, regardless of whether they regulated lawyer
Conference Attendees Endorsed Future
admission, conduct, or discipline—for example, the
Collaboration
sessions “Hot Topics—What Trends and Issues
Worry Regulators?” and “Information Sharing—
What Can Regulators Tell Each Other?” Summaries
of all the sessions, together with some of the session
materials, are available on the conference website.13
The Directory of Regulators
The conference concluded with the session “Where
Next?—Future Collaboration.” Chaired by Antony
Townsend, Chief Executive of the SRA, this final session included his introduction, my presentation, and
extensive audience discussion. I presented some of
the same information contained in this article about
regulatory models from other sectors and the need
In addition to the session summaries and confer-
for cross-jurisdictional regulatory cooperation in
ence materials, the SRA put together a Directory of
the legal sector. I asked the audience to indicate by
Regulators as part of the conference materials. The
a show of hands whether they wanted to continue
the dialogue that had begun in London and whether
they would support the creation of an international
network of lawyer regulators. The audience overwhelmingly indicated support for having an international network. I then asked the audience to indicate
by a show of hands the goals they would support for
the new international network. I had identified four
possible goals for the network, which included the
following:
Additional Reactions to the Conference
Reactions to the London conference were positive. For example, Chief Justice Michael Heavican
found that the conference “was a real eye-opener.
There was a rich mix of ideas, best practices, experienced insight, and inquisitive discussion—literally from around the world. I think all the participants came away from the conference having found
new perspectives from which to view the regulation
1. Cooperation and information sharing in specific cases (e.g., sharing information about
“bad apple” lawyers)
of lawyers.”
Judge Gregory Mize had a similar reaction, noting that “the speakers and working groups enabled
2. Serving as a clearinghouse for information
about regulators’ practices and tools
me to see more clearly the causes of change in legal
markets and what issues need to be addressed by
responsible bar regulators.” The very first session
3. Exchanging information on substantive pol-
of the conference, “Regulating the Changing Legal
Market,” focused on this topic of change by looking
icy issues and projects
at some common trends and themes shared across
4. Development
of
common
policies
or
practices
The audience overwhelmingly agreed with my
jurisdictions and how regulators are addressing
them, but it was a topic that was reinforced throughout the conference.15
recommendation to endorse the first three goals. It
Gene Shipp was similarly positive, noting the
also agreed with my recommendation to reject the
benefits that came from having the opportunity
fourth goal, because that goal might prove divisive.
to interact with regulators from so many different
After a few additional remarks, I solicited input
jurisdictions:
from the audience about the types of programs and
initiatives they would find valuable. The audience
London was a terrific opportunity for regulators
responded with enthusiasm and many ideas.14
from 30 countries to sit down and learn what was
going on in the world. We are now at the point where
During the course of the audience discussion,
attorneys are needed and used from every nation
State Bar of California Deputy Executive Director
every day, so global practice is upon us. We are faced
Robert Hawley volunteered to host a second
with the necessity of adapting the attorney regulation
International Conference of Legal Regulators in San
system to a world where not only travel but Internet
Francisco in August 2013, in conjunction with the
communication means that attorneys are practicing
NOBC Annual Meeting. Audience members were
everywhere. If we are to protect the public and the
asked whether they would be interested in attending
reputation of the legal practice, attorney regulation
such a conference, and a significant number indi-
must be flexible, vibrant, and tuned in to what is
cated their support and interest.
going on in the world of practice.
It was an extraordinary opportunity to find out
of a new international network were unnecessary
what we, as regulators, have in common and how we
because the International Bar Association (IBA)’s Bar
differ. The one takeaway I found reassuring is that
Issues Commission already brings lawyer regulators
every disciplinary system represented at the confer-
together.20
ence protects core values of ethical practice and prosecutes those who would lie, cheat, steal, or neglect their
clients. The conference was a great starting point.
In my view, however, there is a need for an
international network other than the IBA Bar Issues
Commission. The conference demonstrated a
Franklin Harrison echoed a similar theme when
pent-up demand by “day-job regulators” to ex-
he wrote about the differences and similarities in
change views and information with their counter-
regulatory approaches in his December 2012 Bar
parts from other countries. To date, few of these
Examiner column. After noting that everyone’s stated
day-job regulators have participated in the work of
goal was protection of the public, he observed that
the IBA Bar Issues Commission, perhaps because of
“when you have regulators from over 30 jurisdic-
the expense of attending IBA meetings.
tions comparing notes, you will discover an ocean of
differences in their approaches. In spite of this, I left
with renewed confidence in the future of our profession worldwide, as well as a renewed awareness of
the challenges facing regulators in both admissions
and oversight. Continued discussions and conferences on an international stage such as this one can
only help all of us learn from one another’s mistakes
and accomplishments.”16
Goldsmith has correctly pointed out to me that
many jurisdictions do not have day-job regulators to
the same extent found in English-speaking commonlaw countries. Nevertheless, in my view, the trend
is toward increasing use of day-job regulators and
the professionalization of lawyer regulation. A new
international network, beyond the IBA Bar Issues
Commission, could help connect day-job regulators
from around the world.
Although the International Conference of Legal
Regulators hasn’t (yet) received much publicity in
the United States, several sources outside the United
States have cited it as a useful development. In
addition to the press release issued by the SRA,
there were stories about the conference in the U.K.
17
periodicals the Law Society Gazette and the Solicitors
Second International Conference
of Legal Regulators Scheduled for
August 2013
As noted earlier, the 2012 conference attendees
expressed their interest in meeting again, and the
Journal. The conference was also discussed on the
State Bar of California volunteered to host the second
Legal Futures website, which is one of the leading
International Conference of Legal Regulators in con-
sources of information about developments related
junction with the NOBC Annual Meeting (which also
18
19
to the U.K. Legal Services Act of 2007.
overlaps with the ABA Annual Meeting).
Although most of the press about the conference
At the time this article was written, the program
has been positive, it has not gone without criticism.
for the second conference was close to being final-
Before the conference was held, Jonathan Goldsmith,
ized and the conference website had been estab-
Secretary-General of the Council of Bars and Law
lished.21 After an informal get-together on the first
Societies of Europe, argued in his Law Society Gazette
day, the conference will commence with a day and
Euro Blog column that the conference and the idea
a half of programming. The sessions will be held at
Event Highlights at the Inaugural
International Conference
of Legal Regulators
I
would be remiss if I didn’t mention what a wonderful host the Solicitors
Charles Plant,
SRA Chair
Regulation Authority was in London and some of the unforgettable experiences it facilitated. On the first evening, a dinner for conference attendees was held in the Peers’ Dining Room of the House of Lords. Our
host for this dinner was the Right Honorable the Lord Hunt of Wirral, MBE
(David Hunt, whom some may know because of the influential 2009 “Hunt
Report” on lawyer regulation).
It was a magical experience walking through Westminster Hall, which is
the oldest part of the Parliament complex and was built by the son of William
the Conqueror. This is the hall where, among other things, Richard I, Henry
Gregory Mize
VIII, and Elizabeth I held their coronation banquets; Richard II was deposed;
Thomas More and Charles I were tried; kings and queens lay in state after
death; and Nelson Mandela addressed the joint Houses of Parliament.
The Peers’ Dining Room was only slightly less impressive than
Westminster Hall. We had been preassigned to specific tables, which meant
we had excellent opportunities to get to know conference attendees from
other countries.
On the second evening, the SRA organized an equally enjoyable—
although somewhat less formal—evening of cruising down the Thames River.
Gene Shipp
We got to see old sights (Big Ben and the Tower Bridge) and new sights (the
London Eye and 2012 Olympic venues) at dusk and later when they were lit.
Our Thames River cruise was a fitting end to a wonderful conference
that I hope will provide the launch of a new international network of lawyer
regulators. I encourage others to participate in this effort in the future and to
contribute to its success.
Michael Heavican
and Franklin
Harrison
Robert Hawley and Alison Hook, SRA International Advisor
Ellyn Rosen
the State Bar of California building in San Francisco.
Counsel), it is a perfect time to gather again to share
There will be a social event on the second day dur-
our commonalities and learn from our differences.
ing which regulators will have a chance to meet and
interact with their counterparts from other countries
in a more informal setting. After a full morning of
programming and lunch on the third day, conference attendees will be invited to attend the opening
session of the NOBC Annual Meeting. After this
opening session, the NOBC and the International
Conference of Legal Regulators will have a joint session focusing on issues related to multijurisdictional
practice.
I hope those with an interest in lawyer regulation who happen to be near San Francisco, or who
are coming for the ABA Annual Meeting, will consider showing support for the idea of an international network of lawyer regulators by attending the
second International Conference and meeting some
of their foreign regulatory counterparts. While virtual communications are increasingly important in a
globalized world, nothing can match an initial faceto-face meeting. I also hope that NCBE, the
What Attendees Can Expect from the Second
Conference of Chief Justices, the NOBC, and the
Conference
ABA Center for Professional Responsibility will con-
As was true in London, the second International
Conference of Legal Regulators is designed to appeal
to admissions, conduct, and disciplinary regulators.
One of the sessions that may be of the most interest
to admissions regulators is the session on fitness to
practice and dealing with mental health and addiction problems. Other sessions may be mostly of
interest to disciplinary regulators, such as a session
on dual qualification. There will be sessions that
should be of interest to all regulators, such as a session on whether the regulator’s view of risk has kept
pace with what is happening in the jurisdictions and
sessions on regulatory powers and the role of intelligence and investigation in regulation.
Robert Hawley, Deputy Executive Director of
the State Bar of California and one of the conference
planners, has offered this summary of the upcoming
conference:
The San Francisco conference in August follows the
inaugural conference sponsored by the Solicitors
Regulation Authority in London last September.
That was a huge success, bringing together for the
first time attorney regulators from around the world.
With the ABA being in San Francisco in August,
along with the national association of U.S. attorney regulators (the National Organization of Bar
tinue to show institutional support for this important
but fledgling effort to create an international network of lawyer regulators.
Notes
1. Franklin Harrison, Letter from the Chair, 81:4 The Bar
Examiner 2 (Dec. 2012), available at http://www.ncbex
.org/assets/media_files/Bar-Examiner/articles/2012/
810412beLetterfromChair.pdf.
2. Laurel S. Terry, Preserving the Rule of Law in the 21st Century:
The Importance of Infrastructure and the Need to Create a Global
Lawyer Regulatory Umbrella Organization, 2012 Mich. St. L.
Rev. 735. I have also given three talks in which I address this
topic. The presentation slides from these talks are available
on the Selected Presentations page of my website, http://
www.personal.psu.edu/faculty/l/s/lst3/presentations
.htm, indexed under the topic heading “Global Network for
Lawyer Regulators.”
3. For a quick but useful read on the power of networks and
collaboration, I recommend Steven Johnson, Where Good
Ideas Come From: The Natural History of Innovation
(Riverhead Trade 2011).
4. See, e.g., United States International Trade Commission,
Recent Trends in U.S. Services Trade: 2011 Annual Report,
USITC Pub. 4243, Inv. No. 332-345 (July 2011), available
at http://www.usitc.gov/publications/332/pub4243.pdf
(“While the global legal services industry experienced a
slowdown in 2009, the United States sustained growth in its
cross-border trade surplus in legal services.” (at 7-1)); World
Trade Organization, Council for Trade in Services, Legal
Services, Background Note by the Secretariat, S/C/W/318
(June 14, 2010), available at http://www.americanbar.org/
content/dam/aba/migrated/cpr/gats/wto_legal_services
.authcheckdam.pdf, at Chart 3, page 3.
5. See, e.g., The 2012 Global 100: A World of Change, Am. L. (Oct.
2012) at 177. The last column of the “Attorney Head Count”
chart lists the percentage of lawyers located outside the home
country. The chart is also available online at http://www
.americanlawyer.com/PubArticleTAL.jsp?id=1202571229481.
6. Statistics include the 50 states, the District of Columbia,
Puerto Rico, and the Virgin Islands. See U.S. Department of
Commerce International Trade Administration, TradeStats
Express™ Home, http://tse.export.gov/TSE/MapDisplay
.aspx. (Select “State Export Data.” For data for all U.S. states,
select “State-by-State Exports to a Selected Market.” To see
the countries to which a particular state exports merchandise, select “Global Patterns of a State’s Exports.”)
7. See, e.g., Asia-Pacific Economic Cooperation, APEC Legal
Services Initiative: High-Level Overview, http://www
.legalservices.apec.org/index.html (addressing, inter alia,
foreign lawyer temporary practice rights); American Bar
Association, ABA Commission on Ethics 20/20 Introduction
and Overview (Feb. 2013), http://www.americanbar.org/
content/dam/aba/administrative/ethics_2020/20121112_
ethics_20_20_overarching_report_final_with_disclaimer
.authcheckdam.pdf. See generally Laurel S. Terry, Steve Mark
& Tahlia Gordon, Trends and Challenges in Lawyer Regulation:
The Impact of Globalization and Technology, 80 Fordham L. Rev.
2661 (2012). This article concluded that regulators face issues
in common regarding who is regulated, what is regulated,
when and where regulation occurs, how it occurs, and why it
occurs.
8.
9.
See, e.g., Carole Silver, The Variable Value of U.S. Legal
Education in the Global Legal Services Market, 24 Georgetown
J. Legal Ethics 1, 35–36, 40–45, 55–56 (2011); see also Carole
Silver & Mayer Freed, Translating the U.S. LLM Experience:
The Need for a Comprehensive Examination, 101 Nw. U. L. Rev.
Colloquy 23 (Nov. 17, 2006), available at http://www.law
.northwestern.edu/lawreview/colloquy/2006/3/.
National Conference of Bar Examiners, Bar Examination and
Admission Statistics, http://www.ncbex.org/publications/
statistics/. See also Laurel S. Terry, “Summary of Statistics of
Bar Exam Applicants Educated Outside the US: 1992–2012
(It’s Not Just About New York and California)” (April
30, 2013), http://www.personal.psu.edu/faculty/l/s/lst3/
Summary_of_Statistics_Bar_Applicants_Educated_Outside_
the_US_1992-2012.pdf.
10. National Conference of Bar Examiners, supra note 9.
mary of each session, click on the session titles found on
this page.
14. A summary of this final session, including my presentation
slides and those of Antony Townsend, is available on the
conference website at http://www.international-conference
-of-legal-regulators.org/the-london-conference/where-next
-future-collaboration/. My slides are also available on the
Selected Presentations page of my website, http://www
.personal.psu.edu/faculty/l/s/lst3/presentations.htm.
15. A summary of this first session and Professor John Flood’s
presentation slides are available on the conference website
at http://www.international-conference-of-legal-regulators
.org/the-london-conference/regulating-the-changing-legal
-market/. John Flood is a Professor of Law and Sociology
and a Leverhulme Research Fellow at the University of
Westminster, England.
16.Harrison, supra note 1, at 3.
17.Rachel Rothwell, Policing Professionals—International
Regulators, The Law Society Gazette (Oct. 3, 2012), http://
www.lawgazette.co.uk/print/67635; Rachel Rothwell, SRA
Goes Global, The Law Society Gazette (Oct. 1, 2012), http://
www.lawgazette.co.uk/print/67579.
18. John Flood, Legal Regulation Is Not a Uniform Concept,
Solicitors Journal (Oct. 8, 2012), http://www.solicitors
-journal.com/comment/legal-regulation-not-uniform
-concept.
19. Dan Bindman, SRA Throws Weight Behind Global Legal
Regulators’ Network, Legal Futures (Oct. 1, 2012), http://
www.legalfutures.co.uk/latest-news/sra-throws-weight
-behind-global-legal-regulators-network.
20. See Jonathan Goldsmith, Networking Order, The Law Society
Gazette, Euro Blog (Aug. 30, 2012), http://www.lawgazette
.co.uk/opinion/state-union/networking-order.
21. See International Conference of Legal Regulators, The
San Francisco Conference, http://www.international
-conference-of-legal-regulators.org/the-san-francisco
-conference/.
11. See American Bar Association Section of Legal Education
and Admissions to the Bar, Report of the Special Committee
on International Issues (July 15, 2009) (known as the “Lacy
Report,” after the Committee’s chair, Justice Elizabeth Lacy),
available at http://www.americanbar.org/content/dam/
aba/administrative/legal_education_and_admissions_
to_the_bar/council_reports_and_resolutions/20090715_
international_issues_report.authcheckdam.pdf, at 10–11
(discussing the survey results) and Appendix A (reproducing the survey).
12. The U.K. Legal Services Act of 2007 dramatically changed
the regulation of the legal profession in England and Wales.
It created a new regulatory structure, provided a new route
for consumer complaints about legal services, and created
a framework that would allow new forms of legal practice,
known as alternative business structures or ABS. For a short
introduction to the U.K. Legal Services Act of 2007, see these
presentation slides: Laurel S. Terry, “Facing a Transformed
Global Legal Landscape: Introduction to the U.K. Legal
Services Act” (Oct. 2008), available at http://www.personal
.psu.edu/faculty/l/s/lst3/presentations%20for%20
webpage/Terry_UK_LSA.pdf.
13. International Conference of Legal Regulators, The London
Conference, http://www.international-conference-of-legal
-regulators.org/the-london-conference/. To access a sum-
Laurel S. Terry is the Harvey A. Feldman Distinguished Faculty
Scholar and Professor of Law at Penn State Dickinson School of
Law. She writes and teaches about legal ethics and the international and inter-jurisdictional regulation of the legal profession.
She was educated at the University of California San Diego and
the UCLA School of Law.
ABA Accreditation:
A Symbol of Quality
by Diane F. Bosse
I
n our daily lives, we regularly rely on surro-
gated and enforced? And what is the process for
gates for quality. The iconic Good Housekeep-
obtaining accreditation? It is the goal of this article to
ing Seal of Approval on our soap, the FDA
answer these questions, to remind us all of the value
approval on our medications, and the UL mark
this symbol of quality brings to our jurisdictions,
on our electrical appliances all have meaning. These
and to encourage our collective participation in the
labels tell us that the products to which they are at-
accreditation process.
tached have been tested and found to meet applicable standards of quality, safety, and effectiveness.
The evaluation done by those granting the mark of
approval substitutes for the assessment we lack the
ability and resources to independently and individually perform.
The Foundation of ABA
Accreditation
First, let’s correct our definition. “ABA accreditation” is often used as shorthand (including in this
In much the same way, the American Bar
article) but is, in truth, a misnomer. The ABA does
Association accreditation of law schools is an indi-
not accredit law schools. It is the Council of the ABA
cium of educational quality that we all rely on in
Section of Legal Education and Admissions to the
performing our bar admissions functions. The ABA
Bar, along with its Accreditation Committee, that
accreditation process substitutes for an investigation
is recognized by the United States Department of
and evaluation of educational quality that none of
Education (DOE) as the national accrediting body
our jurisdictions has the resources to perform. It is a
for the J.D. degree. For antitrust reasons, DOE regu-
valuable service.
lations require that the decision-making authority
In pursuit of our mission to protect the public
from incompetent legal practice, each jurisdiction
has established what we believe to be appropriate
educational eligibility requirements to sit for the
bar exam. In general, we default to the ABA for this
determination. That is, graduation from a law school
that is approved by the ABA is necessary in many
states and is sufficient in most to qualify for the
opportunity to take the licensing test.
for the accreditation function be separate and independent from the related trade association. Thus, the
Council has the final say on accreditation matters,
and the larger ABA cannot interfere.
The Council is composed of 21 members, 10 of
whom are typically law school deans or faculty members. The remaining members of the Council include
judges, practicing attorneys, public members, and
a representative of the Law Student Division of the
But what does ABA accreditation mean? What
ABA. NCBE is well-represented. The Council pres-
standards apply? How are the standards promul-
ently includes one current member of the NCBE
Board of Trustees, Rebecca Berch, and two prior
individual Standards covering curriculum, academic
chairs of NCBE, Greg Murphy and Jequita Napoli.
standards and achievements, and course of study
The Accreditation Committee, which I am privileged to chair, consists of 19 members. Membership
may include law school deans, doctrinal faculty, law
librarians, clinical legal educators and legal writing
faculty, private practitioners, bar examiners, federal
and academic calendar. The chapter on Admissions
and Student Services includes individual Standards
covering admission requirements, a required notice
regarding character and fitness, consumer information, and student complaints.
and state court judges, and public members, includ-
The Rules of Procedure govern the process of
ing accountants and university presidents and pro-
accreditation and decision making regarding the sta-
vosts. The Accreditation Committee is charged with
tus of individual schools. The 30 Rules cover topics
the administration of the law school accreditation
such as applications for provisional or full approval,
process.
the process for site evaluations, action concerning
The Office of the Consultant on Legal Education,
housed in the Section of Legal Education and
Admissions to the Bar, administers the project of
accrediting law schools, supporting the Council
and the Accreditation Committee in their oversight
functions.
The Standards and Rules of
Procedure for Approval of Law
Schools
The Substance of the Standards
Law schools are evaluated for accreditation purposes against a set of criteria known as the Standards
and Rules of Procedure for Approval of Law
1
apparent non-compliance with the Standards, sanctions, and complaints and appeals of adverse actions
of the Accreditation Committee or the Council.
How the Standards Are Promulgated
The Standards are written by the Standards Review
Committee of the Section, subject to approval of
the Council. NCBE President Erica Moeser presently serves on the Standards Review Committee. In
reviewing and amending the Standards, the Council
seeks to ensure that the requirements are appropriate for current programs of legal education and that
they focus on those matters that are most pertinent
to quality legal education.
A comprehensive review of the Standards is
Schools. The “Standards” include both Standards,
currently under way, with changes to the existing
which are the black-letter law, and Interpretations,
Standards being proposed and considered.2 Among
which give guidance as to the application of the
the proposed revisions under consideration as part
Standards. The Standards are divided into eight
of the current comprehensive review are require-
chapters, such as Program of Legal Education, The
ments for outcome measures, including the articu-
Faculty, Admissions and Student Services, Library
lation and assessment of student achievement; law
and Information Resources, and Facilities—each of
school admission requirements, including whether
which is further divided into individual numbered
or not the Law School Admission Test (LSAT) or any
Standards, totaling 57 Standards in all. For instance,
test should be required of applicants to law school;
the chapter on Program of Legal Education includes
and bar passage standards, particularly what bar
ABA Accreditation: A Symbol of Quality 29
passage rate is acceptable as indicating that the law
states and beyond. Thus, review and comment by
school prepares its graduates for entrance into the
those involved in the licensing process is critical.
profession, and how soon after a class graduates
should that bar passage rate be achieved.
The Accreditation Process
Once the Standards Review Committee com-
Provisional Approval
pletes its work on one or more Standards, it sends
A law school wishing to become ABA-approved
the proposed Standards to the Council. After its
must first apply for provisional approval. That
review and possible modification of the proposed
application cannot be filed until the school has com-
Standards, the Council publishes them for public
pleted one full year of operation. The law school
must submit a feasibility study, as
comment. The proposed revisions
are always specifically sent to the
In
chief justice of every state and to
visional approval , a law
every office of bar admissions in the
country, with an invitation for com-
order to be granted pro-
school must demonstrate
well as an Annual Questionnaire, a
Site Evaluation Questionnaire, and
a self study, as described below.
The feasibility study evaluates the
that it is in substantial
nature of the educational program
compliance with all of the
and goals of the school, the profile
ing the proposals. The Standards
Standards
and has a reli-
of the students who are likely to
Review Committee considers the
able plan for bringing itself
apply, and the resources necessary
comments and, if necessary, revises
into full compliance.
to create and sustain the school.
ment. Public hearings are held to air
concerns and voice opinions regard-
its recommendations to the Council;
The Consultant’s Office sends a site
the Council then acts on the Committee’s recom-
team to conduct a site evaluation, using a process
mendations as appropriate before releasing a writ-
similar to that for fully approved law schools, also
ten report to the public summarizing the results of
described below.
the review and explaining the revisions that were
adopted. Any decision of the Council to adopt revisions to the Standards must be reviewed by the ABA
House of Delegates. The House can concur in the
revisions or refer them back to the Council for further consideration. Because of the requirement that
the Council be separate and independent from the
larger ABA, the House has no authority to change or
reject a proposed revision to the Standards.
The site team produces a report, to which the law
school may respond. After receiving the report of the
site team and the school’s response, the Accreditation
Committee conducts a hearing at which representatives of the law school appear. In order to be granted
provisional approval, a law school must demonstrate
that it is in substantial compliance with all of the
Standards and has a reliable plan for bringing itself
into full compliance. The Accreditation Committee
then makes a recommendation to the Council as
While not every Standard is such as to impact
to whether or not to grant provisional approval.
issues related directly to bar admissions, every
The Council accepts the Accreditation Committee’s
change to a Standard implicates the educational
findings of fact, unless not supported by substantial
eligibility requirements of every state by altering the
evidence, but the Committee’s conclusions and rec-
rules for the accreditation of law schools within our
ommendations are not binding on the Council.
Once provisional approval is granted, the law
school has five years in which to become fully
eligible to sit for the bar exam in any state, subject to
any local idiosyncratic rules or requirements.
approved by demonstrating compliance with all of
the Standards. While a law school is provisionally
approved, it is visited each year by a site team, alternating between full site inspections and inspections
more limited in the size of the site team and the
scope of the review. The goal of the site inspections
is to evaluate the school’s progress toward full compliance with the Standards and full approval. The
The Site Evaluation Process
Site teams, both for law schools seeking provisional or full approval and for those that are fully
approved, typically consist of six or seven members.
Site teams are chaired by an experienced site evaluator, often a dean, and generally consist of one or
two doctrinal faculty members, a
Accreditation Committee monitors
the progress of the school each year
In
preparation for a full
by review and consideration of the
site visit , a law school is
report of the site team, directing the
required to prepare a self
law school, as may be appropriate,
to address certain Standards where
the law school’s compliance and/
or progress toward achieving full
compliance with the Standards may
be deficient.
study , describing the pro gram of legal education ,
A law school that is provisionally approved may apply for full
member, a librarian, a practitioner
or judge, and a university provost or
other non–law school administrator.
Site team members undergo training
provided by the Consultant’s Office
evaluating the strengths
and are given detailed guidance as
and
to the conduct of the site visit.
weaknesses
program ,
setting
of
the
goals
to improve the program ,
Full Approval
clinician and/or legal writing faculty
Site teams are not standing entities; rather, they are assembled on a
and identifying the means
school-by-school basis, with mem-
to accomplish the law
bers selected based on their exper-
school’s unrealized goals.
tise in any specific area of concern at
approval after three years. Again, a hearing will be
held before the Accreditation Committee, with a
recommendation made to the Council. As with provisional approval, the Council will conduct its own
hearing and may accept or reject the Committee’s
recommendation.
the school in question, the availability of volunteers to fill the various positions on the
team, and any preferences of the site team chair. Site
teams are assembled from lists of willing volunteers
maintained by the Consultant’s Office.
In preparation for a full site visit, a law school
is required to prepare a self study, describing the
Once a law school receives full approval, it
program of legal education, evaluating the strengths
will be visited by a site team and reviewed by
and weaknesses of the program, setting goals to
the Accreditation Committee after three years.
improve the program, and identifying the means to
Thereafter, every fully approved law school is
accomplish the law school’s unrealized goals. The
inspected by a site team every seven years, in what is
law school also must complete a Site Evaluation
known as the sabbatical review process. Once a law
Questionnaire, providing specific and detailed
school is approved by the ABA, its graduates become
information regarding the law school’s compliance
with the Standards. The site team members receive
Between site visits, law schools are subject to
these documents, along with the law school’s recent
interim monitoring by the Accreditation Committee,
Annual Questionnaires, reporting such matters as
which is accomplished by a review and evaluation
entering credentials of students, enrollment and
of various data reported by the school in its Annual
attrition data, bar passage information, faculty pro-
Questionnaire and, where appropriate, a request to
files, financial information, and the like, and a his-
the school to provide information to the Committee.
tory of the Accreditation Committee’s findings on
past evaluations of the law school. The site team
reviews that material and spends typically three
Conclusion
days on site, meeting with the dean, the university
The process for the accreditation of law schools and
president if the school is affiliated with a university,
monitoring of their continued compliance with the
and law school administrators, faculty, and students,
Standards is exacting and labor intensive. The work
and attending classes. Following the visit, the site
is primarily done by volunteers who donate their
team prepares an extensive report setting forth facts
time to the accreditation project, for the benefit of
that bear on the law school’s compliance with the
both legal education and the bar admissions process.
Standards.
By establishing graduation from an ABA-
The site team’s report is supplied to the school
approved law school as the educational prerequisite
for comment, correction, and response. The site
to sit for the bar exam, states have, in effect, given
team’s report and the law school’s response, as well
to the ABA the authority to determine what the spe-
as all of the documents and information available to
cific educational requirements for licensure should
the site team, then go to the Accreditation Committee
be and the responsibility to determine whether law
for its review.
schools satisfy those requirements. States have sur-
The Accreditation Committee reviews the facts
as reported by the site team, makes findings of fact,
and draws conclusions as to compliance with the
Standards. As a result of the Committee’s review, the
law school may be required to report back on various Standards in order to demonstrate compliance.
If the Accreditation Committee finds the law school
out of compliance with any Standard, the law school
rendered that authority for good reason—we lack
the time, resources, and expertise to establish and
administer a process for evaluation of law schools.
And we have surrendered that authority with the
knowledge and confidence that the process the ABA
utilizes for the accreditation of law schools is appropriate, comprehensive, rigorous, and effective. Our
confidence is well placed.
will be required to appear before the Committee to
But the process requires our participation. Those
show cause why the school should not be required
involved in bar admissions and the supreme courts
to take remedial action, have sanctions imposed, be
that supervise them need to be engaged in the pro-
placed on probation, or be removed from the list
cess to ensure that the Standards adopted and
of approved law schools. A law school found out
applied, and the manner in which they are enforced,
of compliance has two years to come into full com-
continue to serve our collective needs. To that end, I
pliance or face removal from the list of approved
urge you to comment on proposed Standards, volun-
schools.
teer for a site team,3 or offer to serve on committees
within the Section. I believe you will find that your
participation is personally rewarding, and I know it
will benefit all of us who look to the ABA for its mark
of quality in legal education.
Notes
1. The Standards and Rules of Procedure for Approval of
Law Schools are available at http://www.americanbar.org/
groups/legal_education/resources/standards.html.
2.
All current draft proposals and agendas for upcoming meetings are available at http://www.americanbar.org/groups/
legal_education/committees/standards_review.html. The
Standards Review Committee welcomes comment on the
proposals it is considering. All comments are posted, and
comments previously received by the Committee can also be
viewed.
[Editor’s Note: For a summary of the comprehensive review
of the Standards currently under way, see Donald J. Polden,
Comprehensive Review of American Bar Association Law School
Accreditation Policies and Procedures: A Summary, 79:1 The Bar
Examiner (Feb. 2010), at 42.]
3.
ABA membership is not required in order to serve on a site
team. Those interested in serving on a site team may contact
the ABA Consultant’s Office to volunteer.
Diane F. Bosse is chair of the New York State Board of Law
Examiners. She currently chairs the Accreditation Committee of
the American Bar Association’s Section of Legal Education and
Admissions to the Bar and is a former NCBE chair. A graduate of
the State University of New York at Buffalo, Bosse is of counsel to
the Buffalo law firm of Hurwitz & Fine PC.
The Testing Column
Quality Control for Developing and Grading
Written Bar Exam Components
by Susan M. Case, Ph.D.
I
n the May 2010 issue of the Bar
8. Test administration practices
must ensure that examinees
cannot take test material or
information out of the testing
room.
1
Examiner, I discussed the concept
of best practice and outlined the
following 10 best practices in test-
ing for admission to the bar. These cover
three main categories:
A.
Best
practices
for
C. Best practices for grading individual essays and combining scores
exam
development
9. Grading practices must follow
professional standards, with
emphasis on grader training,
calibration, grading consistency, and monitoring.
1. Each exam component must
have a stated purpose.
2. Each exam component must be
developed using professional standards of
test development and with strictest adherence to security.
3. Grading criteria must reflect the exam purpose, and the grading processes must adhere
to professional standards.
4. Each exam question must be reviewed and
pretested to ensure the quality of the test
development and grading criteria.
B. Best practices for test administration
5. Test administration practices must ensure
that each examinee is authorized to take the
test.
that examinees do not have access to testing
aids.
that examinees cannot copy from one another.
10. Scores must be equated, scaled, and weighted
to ensure appropriate score meaning.
Because of continuing questions from jurisdictions, I have devoted this column to addressing
issues related to exam development, as well as issues
related to grading individual essays and combining
scores.2
Exam Development
Each Exam Component Must Have a Purpose
Statement
Every high-stakes examination such as the bar examination must have a written purpose statement that
explicitly states what skill and knowledge set each
component is designed to assess.3 For example, the
purpose of the MEE is to test the examinee’s ability to (1) identify legal issues raised by a hypothetical factual situation; (2) separate material which is
relevant from that which is not; (3) present a rea-
Each question and the grading materials should
soned analysis of the relevant issues in a clear,
be reviewed by independent content experts. To
concise, and well-organized composition; and (4)
ensure that the difficulty is appropriate for the exam-
demonstrate an understanding of the fundamental
inee group, each question should be pretested, using
legal principles relevant to the probable solution of
recent admittees who write responses to the ques-
4
the issues raised by the factual situation.
Jurisdictions that develop their own essay or
performance tests should have similar statements
to define the content and scoring of their specific
tions under secure, timed conditions. Obviously, in
selecting the expert reviewers and pretesters, care
should be taken to ensure that they will not disclose
the contents of the exam.
exam components. As NCBE has done, the jurisdic-
Jurisdictions developing their own questions
tion should make sure that this purpose statement
should ensure that each question assesses compe-
is widely distributed, preferably by displaying it
tence in key areas of the law—areas that are either
prominently on the jurisdiction’s website.
seen frequently by newly licensed lawyers or that are
Every Question Must Conform to the Exam
Purpose Statement
so critically important that every new lawyer should
be competent in the area being assessed. NCBE has
recently completed a job analysis of what the newly
Every question must conform to the purpose of the
licensed lawyer does and what knowledge, skills,
exam. For example, the bar exam is developed to
and abilities newly licensed lawyers believe they
assess the extent to which each examinee has the
need to carry out their work. This job analysis, avail-
knowledge and skills that are required of newly
able on the NCBE website,5 provides valuable infor-
licensed lawyers. Each question should be framed
mation that could be useful in deciding which topics
within a context of a case that might be seen by a new
should be covered in a jurisdiction’s test component.
lawyer and that a new lawyer would be expected to
If a jurisdiction believes that the national job analysis
handle.
is not entirely relevant to practice in its jurisdiction,
The Quality of Each Question and Its
Supplementary Materials Must Be Ensured
the jurisdiction should perform its own job analysis
sampling newly licensed lawyers practicing locally.
Jurisdictions that develop their own exam questions
The questions, analyses, and grading guidelines
need to ensure the quality of each question. Each
should be of publishable quality. They should be
question’s author must be familiar with the purpose
made available to the public by posting them on the
of the exam and with the content specifications of the
jurisdiction’s website after test administration.
topic area. The author of the question should prepare
not only the question but also other materials such
as the grading guidelines, analysis (scoring rubric),
and model answer. The author should be sufficiently
knowledgeable about the topic to be sure that the
Grading
The Quality of the Grading Materials Must Be
Ensured
supplementary material is accurate and that the ques-
The grading materials are prepared to help the grader
tion addresses the most important aspect of the topic
score the written answers accurately and also to help
from the perspective of what a newly licensed law-
each grader maintain consistency in the grading of
yer would deal with.
the essays. As noted earlier, the grading materials
The Testing Column 35
should be reviewed carefully by content experts
tinue until all the grading points have been used—
to ensure that they accurately reflect the law. In
that is, if a jurisdiction has a 1 to 6 grading scale,
addition, someone other than the question’s author
some of the graded papers should be assigned to
should review the grading materials to make sure
each of the available points.6
they are consistent with the purpose of the exam.
For example, if the purpose of the exam includes the
assessment of writing quality, writing quality should
be part of the scoring rubric.
Grader Calibration Must Be Achieved
If the responses to each question are graded by a
single grader, the grader should grade approximately 30 papers (selected at random), place them
in grading buckets, and then review each bucket to
ensure that the papers within the bucket are consistent in quality. These 30 papers, referred to as calibration papers, should then be spread throughout
the remaining papers to be graded, with their grades
masked, and checks should be made to ensure that
the calibration papers’ grades remain consistent
across the grading period.
For jurisdictions not scaling essay grades to the
MBE, there are additional hurdles that must be met.
First, the graders must have a consistent definition
of what constitutes a grade of passing, as well as a
consistent definition of what each score on the grading scale represents. Discussions should be held to
ensure a common understanding of the characteristics of the just-passing examinee and how these
characteristics would manifest themselves on the
papers being graded. Obviously, it is very difficult
to maintain consistent standards from one administration to the next, but this is required in order to
ensure fairness.
The Importance of Ensuring Score Reliability
Must Be Recognized
Jurisdictions must ensure that any score that is used
If the responses to each question are graded by
for decision making is sufficiently reliable for high-
more than one grader, 30 or so papers should be
stakes testing. High reliability is essential to ensure
randomly selected to be graded as part of the cali-
that the pass/fail status of examinees would not flip-
bration. Each grader should read several papers and
flop from one administration to the next or if differ-
assign grades to them. Then the graders should dis-
ent questions were asked, if different graders were
cuss the grades that have been awarded and resolve
grading the papers, or if the examinees were testing
any differences. A second group of papers should
with a more or less able group of examinees.
then be graded and discussed. This process should
be continued until the graders are in sync.
Jurisdictions that scale the essays to the MBE
scores for their jurisdiction, that weight the MBE at
Almost all jurisdictions scale their essay grades
least 50%, and that make the pass/fail decision on
to the MBE. Under this condition, the graders should
the total score are assured of a sufficiently high reli-
rank-order the papers instead of deciding which
ability and high decision consistency. Jurisdictions
papers are passing and which are failing. The top
that make a separate pass/fail decision based on the
grade does not necessarily indicate an excellent
written exam need to undergo separate psychomet-
paper; it just indicates a paper that is better than the
ric analyses to ensure that they are meeting stan-
other papers. The calibration process should con-
dards for high-stakes examinations.
Conclusion
3.
See American Educational Research Association, American
Psychological Association, and National Council on
Measurement in Education, Standards for Educational
and Psychological Testing (American Educational Research
Association 1999), Standards 3.2, 3.6, 14.14 (regarding purpose); Standard 3.22 (regarding scoring); Standard 4.21
(regarding standard setting).
components, such as locally developed essay ques-
4.
tions and performance tests, requires quality control
National Conference of Bar Examiners, The Multistate Essay
Examination, http://www.ncbex.org/multistate-tests/mee/.
5.
National Conference of Bar Examiners, NCBE Job Analysis: A
Study of the Newly Licensed Lawyer, http://www.ncbex.org/
publications/ncbe-job-analysis/.
6.
For additional details regarding the calibration process,
see Susan M. Case, Ph.D., The Testing Column: Procedure for
Grading Essays and Performance Tests, 79(4) The Bar Examiner
36–38 (November 2010), available at http://www.ncbex.org/
assets/media_files/Bar-Examiner/articles/2010/790410_
TestingColumn.pdf.
The best practices described in this article are
required for high-stakes standardized tests used for
licensure of professionals. Using non-standardized
procedures unlike those that are followed for the
standardized multiple-choice component.
Notes
1.
Susan M. Case, Ph.D., The Testing Column: Top 10 List
of Best Practices in Testing for Admission to the Bar, 79(2)
The Bar Examiner 36–39 (May 2010), available at http://
www.ncbex.org/assets/media_files/Bar-Examiner/
articles/2010/790210_TestingColumn.pdf.
2.
The best practices described in this article are not typically
followed for classroom tests but are followed for high-stakes
standardized tests used for licensure of professionals.
Susan M. Case, Ph.D., is the Director of Testing for the National
Conference of Bar Examiners.
The Testing Column 37
American Legal Education:
Where Did We Come From?
Where Are We Going?
by Daniel R. Coquillette
Editor’s Note: This is the keynote address made by Professor Daniel R. Coquillette on the morning of April 19, 2013, at the
NCBE Annual Bar Admissions Conference held in Boston, Massachusetts. Professor Coquillette arrived at the Boston Marriott
Copley Place conference site at 7:00 that morning only after navigating two police checkpoints and traveling through deserted
streets, in the face of a citywide lockdown, as police searched for the second suspect in the Boston Marathon bombings. He
began his speech by acknowledging the audience’s support in the wake of the bombings.
W
elcome! And thank you for coming
My topic is to address the historic roots of
to Boston. Your support means a
American legal education, many of which are also
lot to us these days. Today is the
here in Boston, particularly in what we call the
real Patriots’ Day, April 19th, the
People’s Republic of Cambridge, and to reflect on
anniversary of the battles at Lexington and Concord.
where we are headed now. Most of you have prob-
I was going to start by making a few cute jokes about
ably heard of the current “crisis” in American legal
Patriots’ Day, like how it is the day all New England-
education. I recently made the mistake of ordering
ers give thanks for Tom Brady and Bill Belichick, but
Brian Tamanaha’s blockbuster book, Failing Law
Patriots’ Day has this week taken on a new, and grim,
Schools, from Amazon.com. This means that I have
significance for us Bostonians, as it has for the people
now been bombarded by other suggested books pre-
of Waco, Texas, and Oklahoma City.
dicting the imminent death of American law schools
But, trust me, nothing that has happened will
defeat this great city. One of my students passed
and the legal profession. I share with you some titles
(my additions in parentheses!):
the finish line two minutes before the bombs, and
Don’t Go to Law School (Unless Your Father Is Chief
another has been severely injured. But I promise
Justice)
you this: next year at this time will be an even bigger Marathon, with more runners, and with more
Bostonians on the sidewalk cheering! And nothing
that has happened will diminish the symbolism of
your being here, at the birthplace of American freedom, on this historic day. I will return to Patriots’
Day, and its deep relevance to why you are here—
your mission as guardians of the law—at my
conclusion.
Growth Is Dead, Now What?
The Vanishing American Lawyer
Declining Prospects (for Everybody)
Tomorrow’s Lawyers (Will There Be Any?)
The Lawyer Bubble (and Will It Burst?), etc.
There is not a ray of hope!
Now it is true that law school applications are
down, from a peak of over 100,000 a few years ago
of the world—and guess what, all three arose less
than a mile from this room.
to just over 60,000 now. The result is that law schools
have drastically reduced enrollment, down 17% in
nearly three years, from over 50,000 to about 37,500.
(That figure, incidentally, is the lowest since 1971,
and has dropped despite a very large unmet need
for legal services among the American middle class
and poor.) Responsible law schools are cutting costs.
All this reminds me of a sweet
”Oh please,” you’re thinking! First Tom Brady,
then the “Birthplace of American Liberty,” and
now the “Birthplace of American Legal Education.”
Does this Bostonian have no shame at all? Well, we
Bostonians do admit there are some other law schools
in the country, including a pesky little one down
in New Haven, Connecticut, of
I was in there looking at china
. . . [S] urvive H arvard
did , and from its survival ,
one mile from here , origi -
for my wife, and this lovely lady
nated the three essential
little old lady who ran an antique
store in Georgetown. One day
asked me what I did. “Well,” I
replied, “I teach new lawyers and
then release them onto the unsus-
A merican
education. It is impor-
ideas that drive
legal
all places, where they go around
bragging they are “Number One”
because of some stupid magazine.
(Talk about pathetic!) But it is
actually true that these three great
ideas originated here.
When Harvard Law School
tant we understand these
opened in 1817, in two rooms
ideas because , as great as
of
question!” “Sure,” I replied. She
they have been, each contains
ing known—and I am not kid-
asked me, “If a divorce lawyer, a
within itself the seeds of the
products liability lawyer, and a
troubles we face today
pecting public.” “Oh,” she said,
“then you can help me answer a
....
corporate lawyer all jump at the
a
crummy
ding—as
frame
Wiswall’s
build-
Den,
it
was the first truly professional
law school in America to be
founded within a university and
same time from a 20-story building, who hits the ground first?” “I don’t know!” I
replied. She looked at me with her sweet eyes and
said, “Who cares?”
to survive. It had all of 11 students. Now for you
Virginians here, William & Mary might have been
able to contest this honor but for the thoughtfulness
of some Union troops, doubtless from Boston, who
So “who cares” that law school applications are
had the foresight to trash the William & Mary Law
down, and that law schools are cutting costs and
School during the Peninsula Campaign and shut it
cutting enrollments, possibly moving to entirely new
down until 1920. (The janitor still rang the bell every
models, including two-year curriculums and inte-
day, but that doesn’t count.) Even Harvard Law
grated apprenticeships? This could even be good!
School, in its early years, just barely survived, sink-
And if some law schools go to the wall, and some
ing to just one student and one really bad teacher,
faculty have to get real jobs, so much the better.
Asahel Stearns, in 1829, the best student/faculty
So let me address this question by looking to
ratio of its history!
where we’ve come from. There have been essentially
But survive Harvard did, and from its survival,
three great ideas that have made American legal
one mile from here, originated the three essential
education what it is today—literally the envy of most
ideas that drive American legal education. It is
American Legal Education: Where Did We Come From? Where Are We Going? 45
important we understand these ideas because, as
take some of the burden of research off of student
great as they have been, each contains within itself
tuition, and almost all university law schools would
the seeds of the troubles we face today, and, as Mark
like to increase their endowed chairs. Of course,
Twain observed, “History does not repeat itself, but
some law schools do fund faculty research largely on
it does rhyme a lot!”
student tuition, and the direct return to students is
So here are the three big ideas. The first is that
legal education should ideally be embedded in
a true university. Now we have had some great
arguable. Only a few universities now use their law
schools as “cash cows” (the decline in applications
will almost certainly put an end to that!).
freestanding law schools, such as the Litchfield
The most important commodity in any uni-
Law School, which predated Harvard and William
versity, however, is faculty time, and to the extent
& Mary but became extinct in 1833, but every
research and publication are valued as much as
top-ranked American law school today, including
teaching, students will benefit only indirectly. But
Harvard and Boston College, is embedded in a great
my point is that the university priorities and struc-
university. At Harvard, this came about largely by
ture existed before legal education and extend to all
accident—the bequest of a large sum of money to
university departments. It was a great idea to embed
found a law professorship by a loyalist slaveholder
American legal education in universities, but its costs
who escaped to England during the Revolution—
are now apparent.
but once this idea took root, it became a feature of
American professional legal education, unique even
compared to Europe.
I mentioned that Harvard Law School was down
to one student in 1829. The reason is that it could
not compete with the prevalent way of learning to
But with this idea came the rest of the ideals
be a lawyer: apprenticeship. Recent scholarship,
of a university, including research agendas and
including some of my own, has now shown that the
tenure-track faculty. Tenured faculty are called “anti-
idea that traditional American legal apprenticeship
quated” in the new Failing Law Schools literature
was “catch as catch can” is fake and was probably
(look, I may be old and bald, but I am not anti-
invented by law professors to give apprenticeship a
quated!). The point, however, is that if law schools
bad name. The likes of John Adams, Josiah Quincy,
are going to be part of universities, they are going to
Robert Treat Paine, Chief Justice John Marshall,
be influenced by university priorities and agendas—
James Otis, Simon Greenleaf, Joseph Story, and
which are only partly about teaching and training
Abraham Lincoln were skillful lawyers and proud
professionals and are also about pure research and
professionals. They also did not go to law school.
research faculty. Most universities resist having
They learned by apprenticeship.
their law schools subject to different rules from their
other academic departments, including rules about
tenure and publication. Is this good or bad for legal
education?
The savior of the infant Harvard Law School,
and of American university legal education, was
Joseph Story, who became a justice of the Supreme
Court of the United States at age 32. If there is any-
The answer is both. In this century, many uni-
body here younger than 32, you still have a chance,
versities have assisted law schools in developing the
but for now Story holds the record as the youngest
kinds of endowed chairs and research institutes that
justice. Story was brought in to save the school by a
big donor, Nathan Dane, with the secret cooperation
Pure experimental apprenticeship could not
of Harvard’s president, Josiah Quincy. First they
meet Story’s vision of the profession as more than
fired Asahel Stearns, who thought he was tenured.
a trade. Future leaders needed to know legal his-
Dane endowed a second chair and built Dane Hall,
tory, comparative law, international law, and legal
the first real home for the school.
philosophy, as well as how to find the courthouse.
This vision has inspired almost every law school in
It was Story who had the second great idea in
America. You will not find many deans who will say
American legal education, and it became his weapon
their goal is to train plumbers, not architects. But
against the competition of apprenticeship. It was just
again, like university education, this agenda contains
this: law schools do not just exist
its own problems. It is vision-
to train practicing lawyers. They
also exist to train the leaders of the
Pure
Republic—the diplomats, politi-
ticeship
cians, statesmen, judges, indus-
S tory ’ s
trialists, and scholars who would
fession
be an elite cadre. Story rejected
the values of the Federalists, who
saw merit in the inherited tradition of great families—imag-
trade.
experimental apprencould
in teaching “nuts and bolts law,”
meet
and it can seem irrelevant to what
vision of the pro -
new lawyers do, particularly if
as
not
ary, and as such it is inefficient
a
they can’t get jobs. The Failing Law
leaders needed
Schools crowd thinks that only the
more
Future
than
to know legal history, comparative law, international
top tier of American law schools
should have Story’s vision, and
that the others should give it up.
ine a man who, like John Quincy
law , and legal philosophy ,
Adams, became president because
as well as how to find the
his father was president!—and he
courthouse .
vision has
mon suggestions today to improve
also rejected the egalitarianism of
inspired almost every law
American legal education are to
the Jacksonian Democrats, who
school in
America.
permit taking the bar examination
would have abolished bar exams
This
Now among the most com-
after two years, to permit students
and put some of the people in
to start law school before obtain-
this room out of office! Story wanted to train a
ing their B.A. (thus also potentially saving a year of
national elite, chosen on merit only, but an elite
tuition), and to require a year of apprenticeship upon
nevertheless.
graduation. This may come as a shock to you, but for
most of its first century Harvard Law School was a
The idea was fabulously successful. Students
two-year school linked, in the case of almost every
flocked from all over the new nation, and enrollment
student, to at least one year of apprenticeship. And
went from one student when Story arrived to over a
no undergraduate degree was required for admis-
hundred when he died. Right now, Story is in a tomb
sion—hence the degree of Bachelor of Law (LL. B.)!
you can visit in the Mount Auburn Cemetery, but to
And Story’s tuition would really please Tamanaha:
have a presidential election between two graduates
$100 a year, the equivalent of about $2,690 a year
of his school, and to have the winner be sworn in by
today.
a third, would be the vindication of his dream. (And,
I must loyally add, our Secretary of State came from
Boston College Law School!)
This school, once on its feet, not only survived but became the national standard in the new
Republic and well into the Civil War. Incidentally, at
cannot blame Langdell for cost. His large Socratic
this time of the Civil War Sesquicentennial, it is not
classes and formal curriculum permitted a fac-
widely known that Harvard Law School was sec-
ulty/student ratio of 9 professors for 850 students,
ond only to West Point in producing leaders of the
a nearly 1 to 100 ratio, and tuition was very low,
Confederacy. There were 350 students from the Deep
even adjusted to today’s dollars. Indeed, I may look
South at the school in the 1850s, and 286 fought for
ancient, but it wasn’t the Jurassic Period when I went
the Confederacy—11 as generals, 16 as colonels, and
to law school, supported, like many of my class-
27 in the government of Jefferson Davis. Forty-eight
mates, by my spouse, who worked as a secretary.
died, as opposed to 52 for the Union. As director of
In 1970, I paid all of $2,100 in tuition, or $12,400 in
the Harvard Law School History Project, I suggested
today’s dollars, not $52,350. There were just 40 fac-
that we put up the portraits of our 11 Confederate
ulty for 1,600 students.
generals in the library, maybe in time for Newly
Admitted Student Day, and was told to go back to
my office.
So what is my point? The three great ideas of
American legal education, all invented within a mile
of here, continue to dominate our thinking. And why
Now comes the third, and last, great idea. The
not? As a distinguished visiting Chinese law profes-
Civil War—which devastated all of America’s law
sor auditing my class observed, “Everybody says
schools—left Story’s national vision in tatters. A
American legal education is in trouble, but it is the
returning veteran, wounded three times, named
envy of the world! We are copying it now in China,
Oliver Wendell Holmes, Jr., wrote in a journal that
and so are law schools in Japan and South Korea!
Harvard Law School would be “close to worthless,”
Are we wrong?” The ideas of having legal education
except “no school is completely worthless.” Into
embedded in great universities; of envisioning law
this gap came a poor boy from New Hampshire,
schools as more than trade schools, but the source
Christopher Columbus Langdell. His great idea was
of the leaders of our nation—and, I would add, the
that law was a science, capable of being taught to
world; and of defining legal education as a demand-
large classes using cases as the empirical data, as we
ing analytical science that teaches men and women
study chemistry, and that teaching law students to
how to think: these are great ideas, and to abandon
think in a formal, disciplined way could be achieved
them in a moment of panic about declining applica-
in classes of 135 through Socratic interrogation and
tions is absolute folly. We must address the dilem-
competitive exams. He established everything my
mas inherent in each of these ideas—and, histori-
students hate about law school: (1) required exami-
cally, the accelerating cost of legal education today
nations, (2) rank in class, (3) grade-on law reviews,
is not an essential part of any of the three—but these
(4) Socratic teaching, and (5) impenetrable case
three great ideas are invaluable parts of the heritage
books. He also adopted a required B.A. for admis-
of the rule of law in America.
sion and a required minimum three-year curriculum.
There was no “experiential” curriculum whatsoever.
Now, back to the 19th of April. As a boy, I grew
up in Lexington, where the first battle was fought.
Of course, it is Langdell’s vision of legal educa-
The battle was fought exactly two hours ago, at about
tion that is particularly under attack today. But we
6:30 a.m., on this day. I was a Boy Scout, and one of
my Boy Scout activities was to act as a guide to those
And why did they not just disperse? What held
visiting the battlefield. But some days, no one came,
them there, facing death? We historians know! Their
and I stood there alone, with my brochures, in the
detailed deposition letters, diaries, and accounts of
morning mist. There was Buckman Tavern, where
the battle survive and tell the story.1 They stood there
the men met, still looking out on the scene, and the
because they believed in the rights of Englishmen,
Old Belfry, which rang the alarm, still standing on a
the right to property, the right to freedom from
lonely mound.
intimidation, the right to have democratically elected
On those mornings, I could almost see the little
ragged line of farmers, maybe as few as 38 of them,
with their crude flintlocks. Their leader, Captain
John Parker, an invalid dying of tuberculosis, was
standing out in front. (His voice was so weak, the
leaders who alone could tax or imprison them. One
of the Minutemen, Prince Estabrook, was a slave,
and he was severely wounded, fighting for the rights
that would be, for him and his race, only a distant
dream.
men could hardly hear his commands.) And I could
These are legal rights. As President Gerald Ford
hear the throb of drums from over the Arlington
said on the battlefield at the 200th anniversary,
hills as the British regulars pulled into sight, 700
“These are sacred rights.” All Americans must pro-
strong, crack light infantry backed with the legend-
tect them, but we lawyers have a special duty. We
ary grenadier guards, their officers on great char-
are, in Joseph Story’s words, “the Sentinels of the
gers, immaculate scarlet uniforms, rank upon rank
Republic.”2 We, the legal profession, are the special
of the Empire’s finest. Major John Pitcairn, the British
guardians of these sacred, inalienable public rights,
commander, ordered them to fix bayonets. He then
and you are the guardians of the profession.
rode up to Parker and yelled at the ragged group,
“Disperse, you damn’d Rebels. Throw down your
guns!” The American militia looked to Parker for
orders. In an almost inaudible voice he issued one
of the great commands of American history. “Stand
your ground. Don’t fire unless fired upon, but if they
mean to have a war, let it begin here.”
It may seem like a big jump from that ragged line
on Lexington green to the future of legal education
and our profession, but, in fact, the two are deeply,
inextricably bound together. As Longfellow wrote,
“… [t]hrough the gloom and the light, / The fate of
a nation was riding that night;….” The fate of our
nation still hangs on the rule of law. And it was for
Someone fired. And then a broadside from
exactly that, the rights that make us free, that our
the British regiments. Down went 18 men: 7 were
forefathers laid down their lives that bright spring
instantly dead. The rest fled for shelter. Jonathan
April morning, right here, exactly 238 years ago.
Harrington, whose house still stands looking over
Thank you.
the battlefield, had left his wife with his gun, minutes
before. Now he crawled, covered with blood, to his
own doorstep, and when she opened the door, he
died at her feet, the eighth fatality. Standing alone in
the mist, I slowly realized that the grass beneath my
feet had been soaked in blood, the blood of Patriots.
Notes
1.
See the classic accounts: David Hackett Fischer, Paul
Revere’s Ride (Oxford University Press 1994); Allen French,
The Day of Concord and Lexington (Little, Brown, and
Company 1925); Robert A. Gross, The Minutemen and Their
World (Farrar, Straus and Giroux 1976); and Mary B. Fuhrer,
The Revolutionary Worlds of Lexington and Concord Compared,
85 New England Q. 18 (2012).
2.
See Story’s inaugural speech as Dane Professor of Law at
Harvard in 1829. Joseph Story, Miscellaneous Writings
503–548 (William W. Story ed., C.C. Little and J. Brown 1852).
Daniel R. Coquillette is the J. Donald Monan, S.J., University
Professor at Boston College Law School and the Charles Warren
Visiting Professor of American Legal History at Harvard Law
School. He teaches and writes in the areas of legal history and
professional responsibility. Professor Coquillette holds an A.B.
from Williams College, a B.A. (Juris.) from Oxford University, and
a J.D. from Harvard University.
Litigation Update
by Fred P. Parker III and Brad Gilbert
Cases Reported
Character and Fitness
Criminal conduct; violation of fiduciary duties as a trustee; dishonesty;
permanent denial
In re Application of Wiseman, Slip Opinion No. 2013-Ohio-763
Dishonesty; fraud; deceit; rehabilitation
In re Application of McKinney, 134 Ohio St. 3d 260, 2012-Ohio-5635
Lack of candor; false statements and omissions on bar application;
neglect of financial responsibilities
In re Application of Clark, 2013 WL 829100 (Ohio)
Submitting a false letter of recommendation; dishonesty
Vandrilla v. Connecticut Bar Examining Committee, Superior Court, Judicial
District of Hartford, February 5, 2013
Character and Fitness
Criminal conduct; violation of fiduciary duties as a trustee; dishonesty; permanent denial
In re Application of Wiseman, Slip Opinion No. 2013-Ohio-763
Jay Wiseman graduated from law school in 2010
hear the matter. At the hearing, the panel addressed
and applied for admission to the Ohio bar and to
three primary areas of concern: 1) Wiseman’s past
take the bar exam. The admissions committee of the
criminal conduct (including incidents of underage
Columbus Bar Association first interviewed Wiseman
possession of alcohol, destruction of property, public
on June 30, 2011, and recommended that his charac-
intoxication, and disorderly conduct), 2) his past-due
ter and fitness be approved. However, the Board of
debts, and 3) his extensive record of traffic violations.
Commissioners on Character and Fitness exercised
Following the hearing, Wiseman submitted an affi-
its investigatory authority and appointed a panel to
davit and a driving abstract that demonstrated that
Litigation Update 51
he had not committed any further traffic offenses.
the Columbus Bar Association, a mother testified
Believing that Wiseman had satisfied his delinquent
that Wiseman was driving recklessly and nearly hit
accounts and corrected his driving habits, the panel
her young son, who was delivering a competing
approved his application to sit for the February 2012
newspaper.
bar exam.
Regarding Wiseman’s past-due debts, the panel
Prior to the bar exam, the board found out
that Wiseman had been charged with receiving
stolen property and asked for an explanation. His
reply was that he had no duty to
found that he had reported zero balances on most of
his debts but that the NCBE report contradicted his
statement. One of the debts had been sold to a collection agency and one had a balance, but no payments
had been made.
report this charge until it had been
resolved. The board then reopened
T he
second panel revis -
Wiseman’s
traffic
record
the investigation and appointed a
ited the issues addressed at
panel to conduct a second hearing.
included at least 13 citations for
the first hearing and found
speeding, improper lane change,
The second panel revisited
the issues addressed at the first
...
the transcript of a
improper turn, reckless opera-
character and fitness hear-
tion, failure to control, and driv-
Florida
ing under suspension. He claimed
that
hearing and found that while
ing conducted by the
Wiseman’s testimony at the first
B oard of B ar E xaminers in
March 2012 presented a different perspective.
hearing had put the best possible
construction on his record, the
transcript of a character and fit-
in March 2012 presented a different perspective. For
example, Wiseman testified before the Columbus
issue and that he had taken steps
to rectify his problem. Wiseman
also became argumentative when
the panel suggested that his traffic
ness hearing conducted by the
Florida Board of Bar Examiners
that this was a time-management
record showed a lack of concern
for the safety of others and a selective disregard for
the law.
Bar Association that while working as a contractor
The affidavit Wiseman had submitted to the
for the Toledo Blade, he was charged with assault
first panel stated that he had no additional traffic
(later reduced to disorderly conduct) after a fight
violations, but he failed to disclose that he had been
with a competing newspaper carrier, who Wiseman
charged with receiving stolen property after purchas-
alleged had begun the fight by pushing him. But
ing a faculty parking pass from someone outside the
Wiseman’s testimony before the Florida Board of Bar
parking office for $10. He purchased the pass rather
Examiners indicated that Wiseman, who had left his
than buying a commuter-student pass from the uni-
car and followed the other carrier, was the aggres-
versity for $60. He admitted to the Florida Board that
sor. In another incident, Wiseman was charged with
he knew that the passes were not transferable, but he
criminal damaging after he was seen driving very
claimed that trading and purchasing parking passes
fast across a lawn between two apartment complexes
was a common occurrence on campus. However, at
while delivering newspapers; the Florida transcript
his second Ohio panel hearing he testified that he
adds that Wiseman was “flooring it” and nearly
did not discover that his conduct violated university
hit someone. In a third incident, not addressed by
policy until after he was charged. The panel felt that
his testimony was not credible, nor did they believe
of $100,000. Wiseman initially used the cash value to
his explanation that he was waiting for the matter to
pay the premiums, but when the cash value reached
be resolved before disclosing it.
$75,000 he surrendered the policy. Wiseman and
his brother were both beneficiaries of the trust, and
The panel also investigated Wiseman’s actions
any distributions had to be authorized by the next
in regard to a life insurance trust established for the
eligible successor trustee—a fact that was repeat-
benefit of Wiseman and his younger brother, for
edly brought to Wiseman’s attention by his father’s
which Wiseman himself was the trustee, and also
attorney. Wiseman distributed some of the funds
in regard to the trust of his deceased mother, for
to himself, which he said was for “reinvestment.”
which Wiseman’s father was the trustee. When the
Wiseman’s father filed a motion for an accounting,
Toledo Blade terminated its contract with Wiseman,
and Wiseman threatened his father’s lawyer with
leaving him and his wife without income, he asked
a grievance if he did not withdraw the motion. On
his father for $75,000 to support his family of six
March 5, 2012, two weeks before Wiseman’s Florida
children while he attended law school. His father
hearing, the probate court ordered Wiseman to pro-
denied this request. Wiseman then filed suit seeking
vide an accounting to his brother’s guardian ad litem
an accounting, a distribution, and the removal of his
by April 4, 2012, which he failed to do. However,
father as trustee of his mother’s trust. The father’s
Wiseman told the Florida Board that he had pre-
counterclaim alleged that Wiseman and his wife had
sented an accounting that had been accepted by the
accepted a $160,000 loan from the trust but had not
court but that the court had not yet ruled on all the
executed a note and mortgage to secure the loan. The
claims. In responding to this inconsistency, Wiseman
probate court refused to remove the father as trustee
claimed that his wife had received the order four
and granted the trust a judgment against Wiseman
days before the Florida Board hearing, but that
and his wife for $160,000 plus interest at 5.5%. The
she had neither opened the envelope nor told him
panel felt that Wiseman’s statements during this
that it had arrived. The panel did not believe this
litigation were not consistent. At one point he chal-
testimony.
lenged the enforceability of the loan agreement,
stating that neither he nor his wife had any obliga-
Before the Florida Board, Wiseman testified
tion to repay the money used to buy their home,
that he had absolute discretion to determine how
but at the hearing he acknowledged the need for a
the money was used and left that Board with the
note and mortgage and said that he objected only
impression that his brother had received his share
to some of the terms of the loan agreement. Before
by referring to his brother’s investment portfolio
the Florida Board, he testified that he had filed the
valued between $120,000 and $140.000. The evidence
probate action because his father had refused his
is clear, however, that those funds are separate funds
request for money, but before the Ohio panel he said
belonging to the brother and that none of those funds
that the impetus to file suit was the father’s claim
came from the life insurance trust. Wiseman eventu-
that the sons would receive nothing from the trust
ally admitted that he had spent all but $256 of the
until the father died.
$75,000 trust fund for his own benefit.
When Wiseman’s father stopped paying premi-
Because of Wiseman’s less-than-credible testi-
ums on the life insurance trust, it had a cash value
mony, his obfuscation, his inability to be honest, and
his misappropriation of money held in trust for him
future, that he possesses the requisite character, fit-
and his younger brother, the panel and board recom-
ness, and moral qualifications to practice law in the
mended that the Ohio Supreme Court disapprove
state of Ohio.
his pending application and prohibit him from reapplying as a candidate for the Ohio bar.
The Court agreed that Wiseman had not established, nor would he be able to establish in the
Wiseman’s application was disapproved, and he
was forever barred from applying to practice law in
Ohio.
Dishonesty; fraud; deceit; rehabilitation
In re Application of McKinney, 134 Ohio St. 3d 260, 2012-Ohio-5635
Michele McKinney registered in June 2010 to take the
the other acknowledging that she had accepted the
February 2011 Ohio bar exam. The admissions com-
transfer. Both letters were purportedly drafted by a
mittee of the Cincinnati Bar Association, following
nonexistent employee of the firm, “Kelly Richards.”
a hearing, disapproved her application. Following
McKinney then changed the voice mail on her sis-
an appeal and her application to take the July 2011
ter’s phone to state that the caller had reached “Kelly
exam, a panel of the Board of Commissioners on
Richards” in the event the landlord called to verify
Character and Fitness conducted a hearing.
the move.
McKinney began law school at Northern
The law firm had a strict policy prohibiting
Kentucky University in 2007 and shortly thereafter
employees from using company e-mail for personal
accepted a paralegal position at a Cincinnati law
purposes. Believing that McKinney was violating the
firm. Before deciding to attend law school, she had
policy, the firm’s human resources director began
signed a lease for an apartment in Louisville where
monitoring her e-mail account in real time and found
she and her sister would reside. The sister had not
that McKinney was sending e-mails and immedi-
signed the lease. McKinney’s sister began to expe-
ately deleting them from her sent folder. One e-mail
rience health problems which prevented her from
indicated that McKinney needed “a contact number
working and paying the rent, and she planned to
for [her] fake human resources person,” and another
vacate the premises, which would leave McKinney
had the falsified letters attached. Based on this infor-
responsible for the rent. When McKinney inquired
mation, McKinney was fired.
about terminating the lease, she was told she could
sublet or the lease could be cancelled if she was
transferred by her employer.
On her bar application, McKinney stated that
her reason for leaving the firm’s employment was
”terminated/conflicted with school schedule.” Later
Instead of subletting, McKinney planned to
in the same application, she stated, “I was fired
fake an employment transfer by producing two
[for] using company email for personal reasons.”
documents on her employer’s letterhead, one veri-
Prior to the panel interview, the Cincinnati Bar
fying a transfer from Louisville to Cincinnati and
Association contacted the law firm seeking addi-
tional information about McKinney’s termination
school and one from a former employer. Her current
and learned about the scheme to defraud the land-
employer testified that he planned to keep her on
lord. At McKinney’s interview, she was given the
after her admission to the bar because he was satis-
opportunity to fully disclose the circumstances of her
fied with the quality of her work and believed her to
termination, but she did not disclose the creation of
be honest.
the fictitious letters on her employer’s letterhead and
was evasive when the interviewers revealed their
knowledge of the letters.
The panel recommended that McKinney’s application be disapproved but that she be allowed to
apply for the July 2014 exam. The board adopted the
When the matter came before the full admissions
panel’s findings of fact, but noting that McKinney
committee, both McKinney and the committee had
was a 30-year-old law student when she engaged in
the deceptive behavior and that
obtained copies of McKinney’s
employment
records,
which
included a memo by the human
In
arguing before the
Ohio
she had been evasive throughout
the admissions process, the board
resources director memorializing
S upreme C ourt , M c K inney
McKinney’s termination meeting.
conceded that disapproval
able to establish her character and
The memo included information
of her current application
fitness and she should not be per-
about the e-mail policy violation
was fair but objected to the
mitted to reapply for admission to
and the falsified letters. McKinney
board’s
practice law in Ohio. McKinney
testified that she did not recall
being told that the letters were
the reason for her termination.
recommendation
that she be forever barred
from reapplying.
She attempted to excuse her evasiveness, claiming that she had forgotten many of
the details. The panel felt that the human resources
director’s memo was a more credible account of the
meeting than McKinney’s version.
concluded that she would never be
appealed this decision to the Ohio
Supreme Court.
In arguing before the Ohio
Supreme Court, McKinney con-
ceded that disapproval of her current application
was fair but objected to the board’s recommendation
that she be forever barred from reapplying. She contended that she had matured since her first year of
The panel found the remainder of McKinney’s
law school and that the lengthy admissions process
record unremarkable, despite her 2001 conviction for
had had a profound impact on her. In her objections,
operating a vehicle while under the influence of alco-
however, she maintained that she had been “honest
hol and five speeding tickets. Noting that McKinney
and forthright” in her character and fitness interview
had not reported two of the speeding tickets on her
and that the law firm’s human resources director’s
application, the panel attributed that omission to
memo of the termination meeting was not credible.
inattention rather than deliberate misrepresentation.
The Court disagreed, finding that the memo was
The panel noted that McKinney had volunteered
more credible than McKinney’s self-serving testi-
at a domestic violence and sexual assault shelter,
mony and that the panel was in the best position to
a juvenile court diversion program, and an animal
assess the credibility of the witnesses. The Court also
shelter. She also presented five character references,
found that McKinney had not been candid through-
including three letters from professors at her law
out the admissions process and had failed to disclose
that she had drafted the false letters to breach her
one day rehabilitate herself and prove that she pos-
legal obligation to her landlord. The Court noted
sesses the requisite character, fitness, and moral
that McKinney appeared to be “genuinely remorse-
qualifications for admission to the practice of law.
ful” for her conduct in drafting the falsified letters
The board’s findings were adopted along with the
and felt that “[d]espite McKinney’s recent and
panel’s recommendation that McKinney be permit-
troubling pattern of dishonest conduct,” she might
ted to reapply as a candidate for the July 2014 exam.
Lack of candor; false statements and omissions on bar application; neglect of financial responsibilities
In re Application of Clark, 2013 WL 829100 (Ohio)
Andrew Logan Clark graduated from the Florida
ous enough.” Next, he said, “I thought that I had
Coastal School of Law in 2010 and applied to reg-
answered the questions the way that they should
ister as a candidate for admission to the Ohio
have been answered. But I knew that I’d also done
Bar. The admissions committee of the Columbus
it with a lot more speed and a lot more brevity than
Bar
some of the ones we as lawyers should.” Then Clark
Association
initially
recommended
ap-
proval of Clark’s application. However, the Board
of Commissioners on Character and Fitness noted
Clark’s failure to disclose numerous traffic violations
on his application and returned the file to the bar
association for further review. On its second review,
the bar association recommended disapproval of
Clark’s application.
Clark appealed the decision to the board, and
a hearing was conducted on November 17, 2011.
Clark admitted that he had provided a false answer
said, “So as at least a partial explanation, I would
say that I always knew that this would be disclosed
even if it didn’t appear on my application, that there
would be knowledge in the State of Ohio that I did
have traffic violations.” And finally, he said, “At the
time I believed that I was being honest because I
believed that I did not have the responsibility to disclose things that I thought were either not important
enough or already disclosed.”
to the question “Have you been charged with any
Following the November 2011 hearing, the
moving traffic violations that were not alcohol- or
board discovered that Clark had applied to take the
drug-related during the past 10 years?” In fact, Clark
February 2012 bar examination. On that application,
had at least 14 moving violations, some of which had
Clark disclosed a default judgment related to a tax
occurred while he was driving under a suspended
delinquency which had not been disclosed on his
license.
August 2010, September 2010, and March 2011 appli-
Clark provided multiple explanations for falsely
cations. Clark represented that he was “currently in
answering the question. First, he said, “I did not
the process of satisfying” a judgment for failure to
think the traffic offenses were the kind of thing
pay Columbus city income taxes from 2002 through
that had to be disclosed. I did not think it was seri-
2007.
The Board of Commissioners on Character and
expressed a hope that with time and maturity, Clark
Fitness appointed a panel to conduct a second hear-
might one day come to understand the critical role
ing. The panel found that Clark’s representation that
that honesty and forthrightness play in the legal
he was “currently” in the process of satisfying the
profession. Therefore, the board recommended that
judgment was false. The panel also questioned Clark
Clark be allowed to reapply to take the July 2017 bar
about why he had not disclosed the tax delinquency
exam.
on his previous applications. He replied that he
had not learned of the delinquency until August or
September of 2011. The panel did not find this explanation credible, given that the city had begun sending notices of delinquency in April
The Supreme Court of Ohio agreed. The Court
stated that an applicant to the Ohio Bar must prove
by clear and convincing evidence that he or she “possesses the requisite character, fit-
2006 to an address at which Clark
admitted that he received mail.
T he C ourt
stated that
Additionally, the panel discovered
an applicant to the
that Clark had falsely answered
Bar
another
question
regarding
whether he had defaulted on any
student loans.
O hio
Gov. Bar R. I(11)(D)(1). “A record
manifesting a significant defi-
convincing evidence that
ciency in the honesty, trustwor-
he or she
the req-
thiness, diligence, or reliability
uisite
fitness ,
of an applicant may constitute a
“possesses
character ,
and moral qualifications
self best summarized the short-
for admission to the practice
he explained, “I have a—I have
admission to the practice of law.”
must prove by clear and
The panel felt that Clark himcomings of his character when
ness, and moral qualifications for
of law.”
basis for disapproval of the applicant.” Gov. Bar R. I(11)(D)(3).
The Court further noted that,
exhibited an inability to be hon-
“[b]ased upon Clark’s numer-
est when—when there’s a gigantic
ous false statements and omissions throughout the
amount of embarrassment involved, when there
admissions process and his neglect of his financial
is nothing I can do. I felt very helpless, and I had
responsibilities, as demonstrated by the default judg-
difficulty being honest.” Despite this admission,
ment entered against him for delinquent tax obliga-
however, the panel noted that Clark failed to
tions, we agree that Clark has failed to sustain his
demonstrate any remorse or appreciation for the
burden at this time. Furthermore, we agree that his
seriousness of his misconduct.
belated candor in acknowledging his struggle to be
Given Clark’s numerous attempts to mislead
the board, the panel recommended that Clark be
permanently prohibited from reapplying for admis-
honest when the truth proves to be embarrassing
offers a glimmer of hope that he will mature and
learn from his past mistakes.”
sion to the bar in the future. The board adopted the
panel’s findings of fact and agreed that Clark did not
The Court held that Clark could reapply to
currently possess the character, fitness, and moral
take the July 2017 bar examination and that he
qualifications necessary to practice law. However, in
would have to submit a new application and
light of Clark’s willingness to admit his difficulty in
complete a new character and fitness investigation
being honest under trying circumstances, the board
at that time.
Submitting a false letter of recommendation; dishonesty
Vandrilla v. Connecticut Bar Examining Committee, Superior Court,
Judicial District of Hartford, February 5, 2013
David Vandrilla appealed from a decision of the
hearing, in which Vandrilla testified that he believed
Connecticut Bar Examining Committee (CBEC)
the professor had forgotten writing the letter. He
entered in February 2012. In his petition, Vandrilla
also implied that the professor was suffering from
claimed that he had successfully passed the
dementia or Alzheimer’s disease. In the Trinity hear-
Connecticut Bar Examination on October 15, 2010.
ing, which was more formal, both Vandrilla and the
He was then notified by the CBEC that it was
professor gave evidence consistent with their own
conducting an inquiry as to his
versions of events. Trinity’s con-
application. The CBEC informed
The
professor testified and
clusion was that the professor had
Vandrilla that it was seeking infor-
again asserted that he had
not written the letter but that it
mation about a reference letter he
not written the letter .
could not be determined whether
had submitted to the Law School
support of his testimony, he
Admission Council (LSAC) as
cited several factors includ-
part of his law school application
process.
In
ing his custom not to give a
recommendation directly to
Vandrilla had written it.
The CBEC held extensive
hearings
and
considered
the
records of the other proceedings.
a student and not to write a
The professor testified and again
graduate education at Trinity
recommendation for a sopho-
asserted that he had not written
College. In the spring of his soph-
more, in addition to a number
the letter. In support of his tes-
omore year, he claims that he
of deviations in writing style
timony, he cited several factors
asked a microeconomics professor
and the form of the letter
Vandrilla received his under-
to write a recommendation letter
on his behalf. He claims that he
itself.
received the letter and put it away
including his custom not to give
a recommendation directly to a
student and not to write a recommendation for a sophomore, in
until his senior year, when he began applying to law
addition to a number of deviations in writing style
schools. He then sent it to LSAC with other applica-
and the form of the letter itself. A handwriting expert
tion materials. LSAC sent a notice to the professor
testified that the signature on the letter was not the
acknowledging receipt of the letter, and the profes-
professor’s. Vandrilla testified that the professor
sor then contacted LSAC by phone and fax denying
had forgotten he had written the letter and was too
authorship of the letter. Additionally, the professor
embarrassed to admit his mistake. The CBEC found
made a complaint against Vandrilla to the Trinity
that the professor had not written the letter and that
College Honors Council.
Vandrilla had written it himself. Based on this determination, the CBEC further found that Vandrilla
Both LSAC and Trinity investigated and held
hearings. The LSAC procedure involved a telephonic
lacked good moral character and that it would not
recommend him for admission.
Vandrilla appealed, claiming that the CBEC had
the Trinity College Honors Council proceedings and
abused its discretion and that its finding was based
a number of fact witnesses as well as witnesses who
on an “ambiguous, isolated single event.” The court
testified in support of Vandrilla’s character. It was
found this argument unpersuasive, as it was within
not bound by the decision of the Honors Council or
the authority of the CBEC to determine the credibil-
by LSAC’s decision. To arrive at a conclusion dif-
ity of witnesses and to weigh the evidence presented
ferent from that arrived at by another entity is not
before it. The CBEC was within its rights to consider
an abuse of discretion. Vandrilla claimed that he
Vandrilla’s reaction to the professor’s complaint and
was unfairly made to carry the burden of proving
his claims that the professor was dishonest, that he
that he did not write the letter, but the court said
suffered from memory lapses, and that his motiva-
his only burden was to prove good moral character.
tion in denying his authorship of the letter was to
The court said that the CBEC had sufficient evidence
save himself embarrassment. The CBEC did not find
to draw its conclusion that Vandrilla did write the
that this event was “ambiguous,” nor did they find
letter.
it to be “isolated.” It was within their discretion to
do so.
Vandrilla also claimed that the CBEC had ignored
the results of the other investigations. However, the
record shows that the CBEC did consider the other
proceedings. The CBEC listened to the recording of
The decision of the CBEC was affirmed.
Fred P. Parker III is the Executive Director of the Board of Law
Examiners of the State of North Carolina.
Brad Gilbert is Counsel and Manager of Human Resources for
the National Conference of Bar Examiners.
Marygold Shire Melli Receives
2013 Margaret Brent Women Lawyers
of Achievement Award
Congratulations to Marygold (Margo) Shire Melli, the first woman chair of NCBE (1989–1990), for being one of
the recipients of the 2013 Margaret Brent Women Lawyers of Achievement Award.
The award, established in 1991 by the American Bar Association Commission on Women in the Profession,
recognizes and celebrates the accomplishments of women lawyers who have excelled in their field and have
paved the way to success for other women lawyers. The award was named for Margaret Brent (1601–1671), the
first woman lawyer in America.
Margo, Voss-Bascom Professor of Law Emerita at the University of Wisconsin Law School, was the first
woman to receive tenure at the UW Law School. She was the first woman to be elected to serve on the NCBE
Board of Managers, the predecessor to the Board of Trustees, in 1980. Generally viewed as the “mother of the
MEE,” she contributed significantly to the development of the MEE and was the first chair of the MEE Committee.
She is a longstanding member of NCBE’s Editorial Advisory Committee.
Marygold Shire Melli

Bar Examiner - National Conference of Bar Examiners

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