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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.

 

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