The professor's apprentice

The WSJ has a story ($$, free summary here) about how more than 20% of corporate clients are now refusing to be billed for big firm work done by first and second year associates "in at least some matters."

A combination of the legacy of financial crisis and higher rates for junior associates — $200 or $300 for an hour’s work, which typically includes research, proofreading or culling important documents from boxes of paperwork — appear to be driving trend. The line is simple: Chief legal officers don’t want to absorb the costs of training newly minted lawyers.

“Training someone on putting together an asset-purchase agreement shouldn’t be done on our nickel,” David Brill, the general counsel of American Stock Transfer & Trust Co., a stock-transfer agent based in Brooklyn, N.Y., told the Journal. ”Younger attorneys can be fine on less complicated matters, but we draw the line at anything with any complexity.”

So what’s to be done?

But R. Bruce McLean, the chairman of Washington, D.C.,-based Akin Gump Strauss Hauer & Feld LLP, said that if the trend continues, firms will have to find a new solution, perhaps a new billing model or intensive training programs similar to those in the U.K., where prospective solicitors take a one-year course on legal practice followed by an apprenticeship.

Peter Kalis, the chairman of K&L Gates LLP, said that when the issue arises with clients, he tells them “it’s their dollar, and they’re free to do with it as they wish.” But he said he also tells them to “step back,” and take a longer view. “It’s a bargain made throughout the generations that has served democracy and capitalism well.”

Peter Kalis seems to have missed the memo announcing that any and all social bargains made through and between the generations are now considered null and void if they fail to maximize the current bottom line.  But really, it was inevitable that the logic of contemporary global capitalism would determine that there's something absurd about paying people hundreds of dollars an hour to "cull important documents from boxes of paperwork" (i.e., to perform secretarial tasks) just because they've acquired law degrees.

Bruce McLean's suggestion -- that law firm associates undergo intensive vocational training followed by an actual apprenticeship before they're paid to do legal work -- would result, holding all else constant, in a nine-year post-high school educational model for lawyers, which under current circumstances sounds like a high price to earn the privilege to practice law.

Of course law schools are coming under pressure to absorb at least some of the costs generated by three years of professional education that, whatever other value it may have, teaches people very little about anything that lawyers actually spend their days doing.  Their response to that pressure has come in two forms: trying to do more skills training inside of law schools themselves, and allowing students to get academic credit for unpaid work they do while still in law school.

The disadvantages of classroom-based skills training are well known.  In order to learn how to practice a profession it's necessary to practice that profession. Practicing at practice -- that is, engaging in pretend lawyer work in an academic setting -- is by contrast an extremely inefficient way to learn how to do practical things.  Legal clinics are a response to this, but have their own problems: they're very expensive, and they tend to teach only a narrow range of basic skills in regard to a small subset of litigation issues.  A huge amount of legal work has nothing to do with litigation, and in any case legal practice changes quickly enough that attempts to teach aspects of it in either classroom or clinical settings are of dubious value, especially given the current cost structure of American legal education.

An increasingly popular response to these facts within legal academia is to attempt to capture the advantages of an apprenticeship model while not letting go of the benefits (to law schools) of requiring students to pay for three years of classroom education.  Hence the recent wave of semester-long externship programs for credit, which have been adopted by several schools, and which are being considered by many more.  These programs allow students to spend a semester doing full-time unpaid work for a government agency, a judge, or in some cases a non-governmental non-profit, and to get something approaching a full semester's academic credit in the process (the typical model allows a student to receive credit equivalent to around 80% of a regular academic load).  Students like these programs a lot for, it appears, three reasons:

(1)  They feel as if they're learning to actually practice law.

(2)  They believe such programs create future employment opportunities, either with the employers themselves or through the networking the students do while on the job.

(3) They get to spend one less semester sitting in law school classes.

I'm very much of two minds about these sorts of programs.  On the one hand, a more rational model of legal training than the current one would be largely apprentice-based.  On the other, there's something more than a little disturbing about flooding an already-saturated market with unpaid workers, while at the same time requiring them to pay anywhere from $10,000 to $25,000 for the privilege of working for free. (Naturally these programs come with various trappings that are supposed to ensure that they're still "academic experiences," but I doubt anyone takes these gestures too seriously).

But of course from the students' perspective a very large number of them are already working at unpaid internships during law school (although heaven knows for no more than the 20-hour per week maximum allowable under the ABA rules).  To these students, such programs give them an opportunity to at least get academic credit for what they're doing already, without the additional hassle of attending classes that they often consider something approaching a complete waste of their time.

Ultimately, if it makes more sense for law students to spend a semester working rather than in law school classrooms, then it would make much more sense to simply eliminate that semester (or more) of law school altogether, rather than outsourcing the professional training of lawyers-to-be, while continuing to charge them increasingly large amounts of money for the privilege of not coming to class.