The fork in the road: the bifurcated purposes of legal education.

• Author: Bryant, Cecilia

Is the purpose of legal education to teach law students to think like lawyers or to do like lawyers?(1) The intelligentsia and the practitioners of law have struggled with this question since the demise in America of apprenticeship clerking as the mode of entry into the practice of law. The answer is unsettled because the paradigm in which the practice of law exists is continually changing as is the rate of change. However, Yogi Berra advises, "When you come to the fork in the road, take it." He is probably right.

From Whence We Came

Today's lawyers are the educational products of the successful transition of legal education from the clerkship/ mentoring model to the appellate case-method model expounded by Dean Christopher Columbus Langdell of Harvard Law School before the turn of the century. The combination of appellate case study to discern principles of law with the process of Socratic dialogue is the foundation of teaching the student to "think like a lawyer."(2) It also has the happy result of permitting a large student/teacher ratio, thus reducting the cost of providing a legal education.(3) The American Bar Association, founded in 1878, passed a resolution in 1881 recommending attendance at law school for three years and urged states to give credit toward required apprenticeship for time spent in law school.(4) In 1921, the ABA approved the report of its special committee on legal education which reported that "only in law school could an adequate legal education be obtained."(5)

While the Langdellian method and the efforts of the practicing bar are due major credit for the success in moving legal education into academe, the president of Florida State University, Talbot ("Sandy") D'Alemberte (former president of the ABA and former dean of the FSU Law School) opines that the typewriter eliminated the need for law clerks and hence, the legal clerkship training system.(6) Since law school education filled an emerging educational vacuum, law schools may be an unintended consequence of the invention of the typewriter.

The transfer of legal education to law schools solidified the premise that the practice of law requires a special body of learning and skills. A trade also has a body of learning and skills but lacks the code of values that is a distinguishing mark of a profession. The aspirations of lawyers that the practice of law should be recognized as a profession required that its practitioners adopt and be governed by a code of values. Thus, the ABA established the first national code of conduct for lawyers in 1908 by adopting 32 Canons of Professional Ethics. These canons have since evolved to reflect the changing role of lawyers in society and the acknowledged responsibilities of lawyers within that society. The identity of the legal practitioner as professional is now stated in the opening of the Preamble to the Model Rules of Professional Conduct: "A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."(7) The challenge of that simple sentence is as relevant today as in the past.

The Shape of Law Practice

During the time that the code of values evolved, the practice of law itself changed. The traditional America n lawyer was an independent practitioner, a generalist performing whatever legal services a private client required. As late as 1947, the U.S. Department of Commerce estimated that 74 percent of lawyers were sole practitioners.(8) Only since 1970 has private practice grown from smaller into larger practice units. Such units differ by type of clients as well as by size; smaller practice units service predominately individuals with large firms working predominately for business clients.(9) In that context, note that a "large" firm today is understood to have more attorneys than was true even a few years ago.(10)

In recent Years, new providers of legal services to clients of modest means have emerged, as have new ways of delivering and financing such services. Legal aid to the poor continues to be funded publicly and privately. The number of public defenders employed by government also has increased greatly. F.S. Ch. 642 authorizes legal service corporations to offer prepaid legal services to members of groups. The voluntary pro bono program of The Florida Bar is itself a response to the legal needs of the poor.

The matrix of services offered by lawyers has also changed. The difficulty of keeping abreast of the complexities of laws and the proliferation of regulatory rulemaking have made the generalist lawyer almost an image of the past. Today's lawyer is primarily a specialist in a limited number of legal fields. In response to the realities of practice, the ABA Standing Committee on Specialization has promulgated model standards for specialization in 24 specialities; a huge growth in number when compared with three traditionally sanctioned specialities of patents, trademarks, and admiralty.(11) Florida for some years had a two-tier system of specialization--certification and designation. Currently, The Florida Bar recognizes 14 areas of practice in which attorneys can be certified as having special knowledge, skills, and proficiency. The designation program which permitted attorneys to designate the areas in which they practiced was terminated on June 30, 1996, in order to eliminate the confusion that the two-tier system created for the general public.

Computer-based technology has amplified the impact of societal forces of change on the practice of law. With database access by CD-ROM and Internet to case law, research...