OnLaw Symposium Issue: Twin Crises in the Law

Last year, James Holbrook, a law professor at the University of Utah, and Jonathan Hornok, the former editor of the Utah Law Review: OnLaw, published an article in the Utah Bar Journal highlighting two issues facing the legal profession: (1) poor and middle class parties that can’t afford a lawyer and (2) recent law school graduates that can’t find a job. One would think that these problems would resolve each other, instead both have worsened to the point of crisis. The problems we face may be more complicated than altering the supply to meet the demand.

The Utah Law Review: OnLaw just published a set of eight articles from a CLE held last year where some of the top representatives in the Utah legal community met and discussed solutions.

Former Chief Justice of the Utah Supreme Court, Michael D. Zimmerman delivered the keynote address. The traditional approach to addressing the problem of the underserved middle class is to do pro bono (free) or low bono (reduced price) legal work, volunteer lawyers working with legal service organizations like the Legal Aid Society, giving greater power to paralegals, alternative dispute resolution, and self help resources. But all of these interventions have fallen short of meeting the legal needs of the middle class.

Meanwhile, the job market for new law graduates has declined sharply with only 85% of graduates employed nine months after graduation and only 58% employed in a job that required bar passage. But this problem, Zimmerman argues, is not limited to new graduates. We have seen in the past few years “tectonic shifts” in the practice of law. Legal services have become a commodity where clients expect prices to be competitive. These clients are increasingly ready to shop around for lawyers comparing cost and specialization. Hiring an attorney on a permanent basis is a fading practice.

Zimmerman also raised concerns about students graduating without the practical training needed to succeed in this new market. The old paradigm of on the job training at your first firm is fading because firms now expect new associates to produce billable hours on day one.

Zimmerman argues that these crises have progressed to the point that  “someone needs to yell ‘fire.’ ”

Two authors respond to that call:

Keith A. Call outlines our access to justice problem, arguing that we rate in the third world level when it comes to access to affordable civil justice.

Jess Hofberger reviews employment statistics for law graduates in Utah.

All stakeholders in the legal community have a role in addressing these problems. Representatives from the judiciary, legal academy, and practitioners provided interesting insights into ways we can move forward.

Justice Zimmerman argues that the judiciary’s power to define and regulate the practice of law should be the torch that burns the boats and forces us to face the future. As it stands, lawyers are the proverbial “hammer” that serves as the lone item in our toolbox. Zimmerman suggests ways we might expand that tool box: first, by studying the unmet needs for legal services; second, by permitting nonlawyers to have a greater role in providing legal services; third, by encouraging unbundled legal services; and fourth, by expanding the role of law schools to include training nonlawyers.

Dean Robert W. Adler explains that the “social contract” between lawyers, law schools, and society imposes a duty of providing public value. Law schools can ensure that they do their part to comply with the terms of this social contract by admitting students with a commitment to public service, teaching respect for the social contract, addressing the high cost of education so that graduates are able to participate in public service, and focusing on practical skills and career development.

Professor James R. Holbrook argues that legal education is a public good as well as a private good and law schools should consider the quality of that good the core of their business. This requires researching the legal market to ensure that their graduates meet market demands, leveraging practice-oriented programs, and guiding students toward those programs.

Professor Brett G. Scharffs argues that the twin crises are not simply the result of a market failure, but rather the result of multifaceted problems ranging from declining minority enrollment to the economy. He questions whether some of the “big ideas” currently touted as the way to address the twin crises will be effective and suggests alternatives.

Curtis M. Jensen brings the perspective of a practicing attorney to bear on the twin crises. He outlines the changes that Justice Zimmerman called “tectonic shifts” in the practice of law. He  argues that lawyers must adapt they way they practice law or face becoming obsolete. The changes that are coming need not be negative ones if we take a proactive rather than reactive approach. He then gives some concrete examples of ways to move forward.

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