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Peggy Maisel
excerpted from: Peggy Maisel, An Alternative Model to
United States Bar Examinations: the South African Community Service
Experience in Licensing Attorneys , 20 Georgia State University Law
Review 977-1003, 989-1003 (Summer, 2004) (81 Citations)
A. The Need
Logically, there would be no need to assess the alternative system of
attorney licensing used in South Africa unless there is agreement that
the current system in the United States is not working. Recognition of
the latter seems to be steadily growing, as evidenced in part by the
holding of this Symposium. Indeed, after publication of the thorough and
convincing critique of U.S. bar examinations by Professor Andrea Curcio,
the point seems no longer open to dispute. As Professor Curcio notes,
the rationale for bar examinations in this country, which, other than a
character review, is to protect the public from incompetent lawyers.
Yet, she correctly argues that there is no evidence that state bar
examiners can even determine what constitutes "competence,"
and they are even less able to develop a written test to measure it.
Instead, they continue to administer an examination that "is a poor
measure of who is ready to practice law due to the narrow range of
skills it tests and the manner in which it tests those skills."
The most basic flaw in the current system of bar admission is the
failure to require that applicants receive training in practical
lawyering skills and be assessed on those skills before being permitted
to practice law. This contrasts sharply with the medical model that
requires medical school graduates to serve as interns and often as
residents at a teaching hospital before being allowed to practice
medicine on their own. Another serious problem with the current system
is that it does not focus on the full spectrum of legal knowledge, which
has a limiting effect on law school curriculum, and it excludes a
disproportionate percentage of minority law graduates from becoming
members of the bar. As a result of these concerns, pilot projects to
test alternatives to the bar examination are being explored in several
jurisdictions.
The South African system of public service apprenticeships, sometimes
combined with a four month practical training course, provides an
alternative route to bar admission that at least at first glance
responds to each of the major criticisms of bar examinations in the
United States. Thus, through its apprenticeship requirement and
practical training schools, the South African system attempts both to
improve access to the profession for members of previously disadvantaged
groups and to teach and assess a broad range of practical legal skills
needed to practice law that are only rarely covered in law school. In
addition, because many of the apprentice attorneys provide public
service, they help meet one of society's other pressing needs, namely
providing greater access to justice for indigent clients.
On the other hand, as Ms. Mhlungu describes in her companion article,
the model used in South Africa has serious potential pitfalls in its
implementation, both with regard to how to teach a practical training
course and in the varying quality of supervision and assessment provided
to the candidate attorneys. Furthermore, as defenders of the current
system in the United States argue, such a system must necessarily
require substantial resources, both in attorney time and money.
The remainder of this Part examines key issues jurisdictions in the
United States will have to face if they try to institute a South
African-type system. The challenge will be to retain the benefits of
better prepared lawyers, increase access to the profession, and expand
legal services to the indigent while overcoming the problems of how to
insure quality supervision and finance the changes. Some recommendations
are made at the end of this Article, but the Author recognizes that the
decision of what to do must be left to each jurisdiction. What is most
important is that they not ignore the problem but instead think
creatively and experiment with different ways to achieve the potential
benefits of a revised system of admission to the bar.
B. The Role of Traditional Legal Education
Before discussing the use of postgraduate apprenticeships, there
needs to be some discussion of the role that traditional legal education
should play in providing more practical training for lawyers. Presently,
there is a type of circular connection, even a classic "chicken and
egg" question, between the bar examination and the predominant mode
of education in most law schools. Thus, the former normally tests for
what is currently taught in law schools, that is, substantive law, legal
analysis, and legal ethics; the law school curriculum emphasizes those
subjects that are tested on the bar examination. Admittedly, many law
schools now offer a wider variety of subjects, including some in
practical skills, but it is normally left to each student to decide
whether to enroll in skills courses or clinical opportunities.
What is clear according to studies like the MacCrate Report is that
U.S. law graduates do not have the skills and training necessary to
represent clients upon graduation from law school. The situation is
similar in South Africa because, as discussed earlier, legal education
in the two countries is comparable. As Ms. Mhlungu stated, "I left
the university after graduation ... knowing that I was not ready to
practice law." One of the biggest gaps is a lack of basic lawyering
skills, including legal research, writing, drafting, client
interviewing, counseling, negotiation, and trial skills. These studies
have been used to encourage changes in law school curriculum to provide
more skills training and an increase in clinical legal education
opportunities.
Legal educators, however, are undecided about whether it should be
their responsibility to include practical lawyering skills as part of
the standard curriculum or whether they should continue to rely on
"on the job training" to complete that task. One factor
favoring proponents of the present system is that some law graduates
never practice law. Status quo proponents also, I believe incorrectly,
follow a model that assumes that law firms will train their new
associates with the skills they need for legal practice. Whatever the
reason, the bottom line for purposes of this Article is that there is
little reason to believe that traditional law school education is likely
to take up the task of providing more practical skills training for
lawyers any time soon. That means that those skills will still have to
be acquired elsewhere.
C. Practical Training Courses and Law School Clinics
The new South African system allows for the teaching of some of the
skills needed for legal practice in the classroom, as a substitute for
one year of serving as an apprentice. This is done through the
four-month courses at Practical Training schools, described in Ms.
Mhlungu's article. As Ms. Mhlungu notes, however, the Practical Training
Skills course may fail to accomplish its goals because the curriculum is
often taught through traditional classroom methods such as lectures.
This alternative has potential, however, if the curriculum consists
primarily of simulations and practical exercises, after which the
students receive constructive feedback from the instructors. At the end
of the course, the students can be assessed as to their ability to
complete basic lawyering tasks such as writing a client letter or
presenting an oral argument on a motion. According to one commentator,
the Canadian system contains a successful model of this course.
In the United States, some of the elements of a practical training
course are present in our law school clinics, where classroom work is
often part of the clinical experience. Law students, whether
participating in an in-house clinic or an externship with a legal
office, will participate in a seminar usually taken contemporaneously.
The seminar will focus on ethical, substantive, and skill issues in the
student's legal practice and have students reflect on their experiences
and draw lessons from them. Like the practical training course, the
student has a chance to practice actual lawyering skills such as client
counseling, and to receive feedback from a supervisor. One advantage is
that the student works on a real case rather than a simulation, a factor
that may provide an extra incentive for the student to try to perform at
her best. On the other hand, the use of real cases means that educators
have less control over what skills may be required in a particular case
and the timing of when they occur. Nevertheless, this model has
significant potential and forms the basis for a possible system proposed
later in this Article.
D. Community Service Clerkships
Part II described the benefits that a postgraduate community
clerkship, like the ones in South Africa, can provide as a requirement
for becoming a licensed attorney. While the South African experience
also demonstrates that the system of internships must be carefully
regulated to ensure that its objectives are met, the potential benefits
seem sufficient to warrant that U.S. jurisdictions test the feasibility
of adopting a similar system.
1. Providing Practical Experience
The first and most important benefit these clerkships share with
other alternatives to the bar exam is that they provide an opportunity
both to train prospective lawyers in the practical skills needed to be
an attorney and then to assess whether they have achieved competency in
those skills. Moreover, clerkships do so even more effectively than the
law school clinical experience described above because the intern works
full time for at least a year and possibly for two years. Unlike the
clinical situation, there is a strong likelihood that candidates will
have opportunities to practice and to be assessed on virtually all of
the key lawyering skills that would demonstrate competency as an
attorney.
Clearly, the primary concerns regarding these internships are
securing the resources (time and money) to run them and ensuring
uniform, quality supervision. This Article will address the resources
question later. Regarding supervision, it is useful to begin with a
review of the traditional system of articles that preceded and still is
an alternative to community service clerkships in South Africa. That
system utilizes several devices in an attempt to ensure that the
training of candidate attorneys is of a high quality. As described
earlier, these include the requirements that (1) the principal have
practiced for three years, (2) the principal and candidate attorney sign
a Contract of Clerkship setting forth the duties and responsibilities of
both parties, including the legal skills that must be taught, and (3)
the principal supervise no more than three candidate attorneys.
The main problems with this system are in its implementation rather
than its concept. Ms. Mhlungu's account of her experience graphically
portrays these problems when she describes how, in her first clerkship,
she had to learn basic lawyering skills through trial and error with
almost no supervision. The result was that she felt inadequate to do
complicated litigation and instead sought to learn how to do
transactional work. In her second clerkship experience, Ms. Mhlungu
received regular feedback on her work but felt devalued as a person.
Supervision requires skill, interest, and a large commitment of time by
each principal. Also, as Ms. Mhlungu indicated, the traditional system
of articles was open to problems of racism, sexism, and poor
supervision, with candidate attorneys sometimes being exploited as
low-cost labor without receiving proper training.
The community service placements allowed under post-apartheid
legislative changes provide for a much better system of supervision.
Supervisors in most of these settings spend all or most of their time on
supervision and therefore are much less likely to be distracted by the
demands of their own caseload. This is particularly true for the
placements at the Legal Aid Board Centres, now called Justice Centres,
and the university-based law clinics. There are other public interest
legal organizations that also receive placements, such as the Legal
Resources Centre offices, where attorney supervisors probably have their
own caseload, but because they have a public interest law focus and have
many fewer candidate attorneys, supervision there is also much more
likely to be taken seriously.
The Legal Aid Board-funded Centres hire attorneys with at least three
years of practical experience to supervise ten candidate attorneys in
community service internships. In some clinics, there are eight
community service interns and two qualified professional assistants
supervised by the principal, so the professional assistants can appear
in the regional magistrate courts while the new law graduates appear in
the district (lower) magistrate courts.
At the university-based law clinics, such as the University of Natal
where Ms. Mhlungu is employed, the ratio of principals to community
service candidate attorneys is even smaller. For the most part,
principals supervise only two or three candidate attorneys because they
are also teaching and supervising final-year law students.
Beyond simply spending more time on supervision, because it is their
primary responsibility, the supervisors in these settings are likely to
become more expert in supervision, which is a skill not taught in law
schools. Thus, they probably will discuss it with their peers and seek
information and training to improve these skills. One example of
peer-sharing, which developed almost immediately after apartheid, is the
annual conference of university-based law clinic staff. During the
conference, supervisors receive training on adult learning and
supervision skills, including giving effective feedback. Finally, this
system allows for the supervision of the supervisors, either through a
peer system or by having their more experienced or more expert members
observe and critique them. Given the closed and likely supportive nature
of these settings, it is also more probable that the supervisors will
solicit feedback from the interns they supervise.
2. Access to the Profession
Another major reason previously mentioned for considering
alternatives to the U.S. bar examinations is that studies show that
disproportionate numbers of African-American and Latino law graduates
fail the exam, creating a formidable obstacle to their access to the
profession. Part II described how, in South Africa, difficulty in
finding a placement to complete the required two years of articles
contributed to the exclusion of black candidates from the profession.
This problem helped spur the passage of the 1993 amendments to the
Attorneys Act 53. The amendments established an alternative route to
admission, involving a Practical Training School course and a one-year
clerkship of community service or two years of community service. This
change is working in South Africa, and there is reason to believe it
could have a similar effect in the United States.
To make this alternative work in the United States, we will have to
address various concerns. For example, those who would administer this
kind of program must be cognizant of the need to choose those who
participate in this program and the compensation provided to them so as
not to exclude prospective attorneys because of race or wealth. Wealth
is a factor because law graduates with high debt may find it difficult
to spend a year at a low-paid clerkship (the Arizona model) or to endure
three months with no pay (the New York model). Indeed, law graduates in
the United States and South Africa who are overloaded with debt upon
graduation or who feel the pressure of providing resources to their
extended family, or both, are under great pressure to take the highest
paying jobs possible, often in the corporate field. Yet, these are the
students who may need practical training the most because they had to
work part or full-time during law school and therefore had little or no
opportunity to participate in a law school clinical program. Race
becomes a factor because it is likely that a higher percentage of
minority law graduates will be in the lower-income group. It will,
therefore, be necessary to compensate interns adequately, partially
forgive law school debt, or at least suspend payments and the
accumulation of interest during their period of community service. In
that way, participants will at least be in no worse financial shape than
when they graduated from law school.
A second issue concerns how private law firms will view job
applicants who have completed a public service internship as an
alternative to a bar examination. Applicants who take the bar and
therefore are available more quickly may be more desirable to firms. It
is also unclear how corporate firms and corporate law departments will
view applicants who have worked in a public interest setting. A possible
result could be segregation in terms of future employment for those law
graduates who choose an alternative method to obtain admission to the
bar. The solution may be to make community service mandatory, similar to
the requirement of service as an intern for medical school graduates.
As Ms. Mhlugu pointed out, in South Africa, with its black-dominated
government and its growing black economic elite, there are financial and
legal considerations, like access to government contracts, that put
pressure on South African firms to employ black law graduates, including
those with public interest backgrounds. The same financial incentives do
not exist in the United States, and there are no employment equity
requirements equivalent to those in South Africa. U.S. jurisdictions
also have no requirement that private law firms provide pro bono or
community service. Careful consideration and further study are necessary
to ensure that a community service alternative for admission to the bar
actually does increase representation of people of color in the
profession.
A third issue in the United States that requires further thought is
an attorney's ability to transfer her license to a state other than the
one in which she was originally admitted. In South Africa, attorneys
moving from one province to another, each with its own law society, are
granted reciprocity in admission to the local provincial bar. Currently
in the United States, a majority of states allow reciprocity to
attorneys moving from another state or require them to take a limited
bar examination focusing on the state courts and procedure of the new
jurisdiction. United States attorneys admitted to the bar through an
apprenticeship route would have the skills to practice in other states
and should be given reciprocity. As in the present system, a state could
ask the attorney to take a limited examination on state courts and
procedure.
3. Access to Justice
A third benefit of the public service clerkships in South Africa is
the improved access to justice for disadvantaged members of society.
This has been achieved in two ways. First, the new system has increased
the number of attorneys who are exposed to poverty law and development
needs and who are educated to provide representation on these issues.
Indeed, a large number of candidate attorneys trained in public interest
law firms in South Africa continue to work in legal aid and public
interest law after their admission to the bar. There is no reason to
expect a different result in the United States, where use of public
interest internships will expose more law graduates to the needs and
problems of poor people. It will also allow these graduates to explore
whether they want to pursue public interest careers after admission to
the bar, or take on pro bono cases in private practice settings.
The second way a system of community service internships improves
access to justice is that the system greatly increases the legal
resources available to low-income people. The lack of resources to
represent members of this segment of the population is a serious problem
in both the United States and in South Africa, where there are many more
indigent people in need of legal representation than there are free
lawyers to represent them. By improving this situation, jurisdictions in
the United States can create more equality in the legal system and
achieve a reduction of cynicism and hopelessness among low-income
people. The major obstacle to this result is funding.
In South Africa, the Legal Aid budget has grown from 35.2 million
Rand in 1991 to 1992 to 312 million Rand in 2001 to 2002. The move away
from the Judicare system to a staff attorney model in providing free
legal services has created many new Legal Aid Justice Centres. This move
has resulted in the hiring of experienced attorneys who can act as
principals to candidate attorneys. The university law clinics have also
received major funding from foreign donors to provide free legal
services and train law students and candidate attorneys. Nevertheless,
even with these new sources of funding, the legal system in South Africa
is still straining to adequately fund the community internships.
At present in the United States, there are woefully inadequate
resources available to provide civil legal services to the poor.
Creation of a public interest internship program will greatly reduce the
person-power problem but will require considerable additional funding
because we cannot expect the existing human and capital resources of
legal aid and public defender programs to absorb the vast number of new
interns. The next Part contains a proposal that attempts to solve this
and other concerns.
IV. PROPOSED ALTERNATIVE FOR THE UNITED STATES
Other commentators have both proposed and critiqued potential
alternative models to current bar exams. The primary purpose of this
Article was to add to that discussion by describing what the South
African experience has to offer. After reviewing the system there and
observing both its strengths and pitfalls, this section will propose a
general model that would seem to best address most of the concerns
raised above: assurance that newly admitted attorneys have practical
skills; assurance that the profession does not exclude applicants based
on race or wealth; assurance that the private and corporate bars do not
disfavor job applicants who complete public service internships;
provision of adequate funding for representation of the indigent; and
provision of adequate supervision to public service interns.
The alternative that this Article proposes is to replicate the system
that the medical profession currently uses by creating "teaching
law schools." These law schools would oversee mandatory legal
internships in the same way that teaching hospitals oversee medical
interns and residents. The practical training could be provided either
in-house or through supervised externships or a combination of the two;
but in either case, everyone would receive hands-on experience. Further,
making the program mandatory for all students would eliminate any bias
in favor of those who did not complete public service internships.
Additionally, as suggested earlier, race and wealth discrimination would
not be an issue if there were debt forgiveness, or at least suspension
of debt accumulation.
Perhaps the greatest obstacle would be finding the financial
resources to support this system, but some creative possibilities exist.
Government is one likely source of revenue, and funding university law
centers may be more politically palatable than increasing the funding
for the controversial Legal Services Corporation. Restrictions on the
type of representation provided would likely accompany the provision of
government funds, however, so it should not be the only source. Another
possible source is to tap into the traditional fundraising sources of
the universities that house these centers. These sources may include
foundations and, more importantly, alumni of the programs. Lawyers have
never had a great history of giving, but it is possible that they would
donate to these centers, perhaps out of gratitude for the practical
legal experience they provided. Finally, it is possible to devise a way
to extract funds from the private bar to help cover the costs of these
centers, under the rationale that the centers would provide some of the
training that law firms and corporate law departments have traditionally
undertaken. Possibilities include an add-on to court filing fees or,
better yet, a special "attorney tax," perhaps tied to income.
As for insuring the quality of the supervision, these centers would
have all the advantages described above with regard to the Justice
Centres and university law clinics in South Africa. Indeed, attorneys
specifically educated and trained to be supervisors, much like the
faculties at our teaching hospitals, would conduct the supervision.
Similarly, following the pattern of current law clinic externship
programs, university staff would oversee the supervision of interns who
work off-site in either public interest or government settings such as
public defender offices. Thus, if problems arise with particular
supervisors, the intern would not be left to her own devices, as was Ms.
Mhlungu, but instead would have someone to intervene on her behalf to
help correct the situation.
CONCLUSION
There is a growing recognition in the United States that bar
examinations need to be eliminated or changed because, among other
reasons, they test for only a narrow range of skills needed to practice
law, have an unfair impact on the admission of minority attorneys to the
bar, and help limit the types of courses law students take while in
school. Pilot projects based on community service have been suggested as
alternatives to the bar examination in both Arizona and New York. These
represent an excellent beginning to the experimentation that should
follow to find the best alternatives. Based on a review of the South
African community service apprenticeship model, this Article has briefly
explored one other alternative for replacing bar examinations. The
university law center model was proposed because it helps ensure that,
before being admitted to the bar, new attorneys have practical education
in the skills and knowledge necessary to represent clients; it reduces
the likelihood that law graduates of color will be disproportionately
kept out of the profession; and it greatly increases both the awareness
of the legal needs of the poor and also the resources devoted to their
representation.
The Author hopes that in the next five years, every jurisdiction will
begin at least one pilot project to test an alternative method for bar
admission. The key is to develop a system that will ensure the admission
of law graduates who have the competency to do their job well, are as
diverse as the society from which they come, and are committed to
providing justice for all of our citizens. |
