Raising the bar: standards-based training, supervision, and evaluation.

• Jurisdiction: United States
• Author: Bernhard, Adele
• Date: 22 June 2010

1. CHANGES IN THE LEGAL PROFESSION THAT MAKE STANDARDS ESSENTIAL

   I enrolled in the Criminal Defense Clinic during my third year at NYU Law School and immediately enjoyed criminal court practice. Motivated by the responsibility of client representation, I thrived in the fast pace and unpredictability of the courtroom. Even then, though, I contemplated how I might have structured the seminar differently had I been in charge of the clinic. I wondered how to better prepare students for their first interviews and court appearances. I thought about the benefits and detriments of supervision. Was it necessary or beneficial for me to feel quite so lost and overwhelmed? Should I really have been permitted to wander about town unsupervised, with a client accused of a string of scissor point robberies as we searched for Alternative to Incarceration programs? Were there guidelines or checklists designed to help me decide what steps ought to be undertaken for clients and when?

   Since those first heady and terrifying days in criminal practice, I have considered how best to teach the practice of law. I have worked as a public defender, designed continuing legal education for private assigned counsel, taught trial advocacy to public defenders, created systems to evaluate defender organizations, assessed defender organizations and law schools, and guided a great many law students through their introduction to practice. I am convinced now of what I first thought when I began--it really is helpful to incorporate standards into training, supervision, and evaluation.

   In this short Article, I sketch the methodology my colleagues and I at Pace Law School use to incorporate practice standards into our clinical teaching (1) and reflect on how a standards-based teaching paradigm could be adapted to the training, supervision, and evaluation of public defenders. Then, I briefly consider how standards and standards-based teaching assist in the administration of assigned counsel plans and in the evaluation of the performance of public defender organizations. Although this Article does not cover any of these topics in depth, my goal is to introduce the reader to a standards-based approach to teaching and suggest that lessons from that model might be valuable for public defender offices.

   The legal profession is growing and changing in ways that impact both law school curriculum and the responsibilities of public defenders. Each year more new lawyers graduate from school, take a bar examination, and join the profession. (2) The expansion of the profession correlates to the increased demand for legal services. Every day there is more legal work to do. (3) States enact laws to regulate conduct that was never before regulated, in ways that were never previously conceived, (4) and specialized agencies are formed to oversee and manage the multiple and complex aspects of modern life. (5) In the field of criminal law, current public safety strategy depends on police officers making numerous arrests--many for minor crimes that carry increasingly complex collateral consequences, including devastating immigration consequences. (6)

   Working conditions for lawyers have also changed. (7) Increasingly, lawyers concentrate on specific areas of law, keep detailed billing and work records, practice either in small or solo firms or in enormous multi-office firms, and confront complex ethical dilemmas--some created by the changes in legal practice. (8) one of the most significant changes in the field is the reduction of training and supervision provided to new lawyers. This change has been brought about primarily by the increase in competition in the private sector and the decrease in funding, along with the increased need for legal services in the public sector.

   In the past, law graduates could expect years of close and careful supervision at a law firm or through a clerkship. Now, many new lawyers join small firms or begin an independent solo practice immediately after passing the bar, shouldering the responsibilities of client representation right after graduation. Even as working conditions thrust new lawyers into challenging situations ever earlier in their development--in public defender offices and elsewhere--the availability of post-graduation training and supervision has decreased. (9)

   Today's new lawyers likely need more assistance learning the business and the art of practicing law, but they are instead expected to do more on their own. The greater number of professionals working in solo or small firm practice without mentors or in large, impersonal bureaucracies with little guidance, coupled with the increasing complexity of legal work, has generated problems. Lawyers suffer from depression and anxiety--perhaps more than other professionals. (10) And each year there are disaffected clients unhappy with services rendered as well as with the cost of those services. (11) These conditions impede performance. It is difficult for busy, pressured, defensive, poorly trained, and poorly supervised lawyers to perform at their best. (12) one countervailing force amid the relentless pressures adversely impacting performance is what I call the "Standards Movement." (13) Standards provide clear and explicit guidance for lawyers. Standards dissect complex responsibilities and present them as the sum of manageable pieces. Standards make comprehensible what judicial decisions often make incoherent. (14) The ABA Criminal Justice Section Criminal Justice Standards, for example, provides a comprehensive list of lawyering tasks for defense attorneys and prosecutors. (15) The Standards were first approved in 1969 after being drafted by the Criminal Justice Section of the American Bar Association. (16)

   Warren Burger, chair of the Standard's project until his appointment as chief justice of the U.S. Supreme Court in 1969, described the Standards project as "the single most comprehensive and probably the most monumental undertaking in the field of criminal justice ever attempted by the American legal profession in our national history" and recommended that "[e]veryone connected with criminal justice ... become totally familiar with [the Standard's] substantive content." (17) I am consistently surprised, however, at how infrequently defense attorneys use the Criminal Justice Standards to perform at a higher level. I am convinced that incorporating standards into the training, supervising, and evaluating of new defense attorneys will improve the quality of criminal defense services. My belief derives from my own experience using standards to teach law students.

2. USING STANDARDS TO TRAIN STUDENTS TO BE LAWYERS

   I have spent the last 17 years as a clinical law teacher. My students learn the practice of law by practicing law. Currently, I direct a Post-Conviction Innocence Project. (18) I identify cases where clients make a persuasive claim that they have been wrongly convicted and where I hope that my students and I will find new evidence of innocence that was not presented to the jury at the client's trial. Until recently, I taught a criminal defense clinic. In that clinic, my students represented clients charged with misdemeanor cases in criminal court. In each of these teaching experiences, I work alongside colleagues at the law school who supervise students handling a range of cases involving immigration, investor rights, disability, education, and environmental law.

   Although student attorneys enrolled in the clinical programs at Pace Law School handle many kinds of cases in a variety of administrative and judicial forums, all the clinical teachers introduce our students to the practice of law in the same way. In addition to identifying appropriate cases, assigning them to students, and creating a syllabus of readings, we begin each semester by distributing the Report of the Task Force on Law Schools and the Profession, Narrowing the Gap--commonly known as the "MacCrate Report" after Robert MacCrate, the chair of the task force that drafted the treatise. (19)

   The MacCrate Commission was charged with bridging the purported "gap" between teaching and practicing law. (20) Its work was motivated in part by the changing conditions of practice. Pressed for time, firms didn't want the responsibility of training law graduates in practical skills and also complained that graduates weren't prepared to practice law. The firms needed "practice ready" lawyers, but the graduates they were hiring didn't know how to write a simple contract or file an answer, and they had never been to court. Law students, as well, were disappointed to learn upon graduation that they had paid high tuition costs for an education that did not transmit the basic skills they would need to engage in their professional work. (21)

   The MacCrate Commission defined its role as articulating the skills and values required for competent lawyering, which, according to the Commission, develop "along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experience, and continues throughout a lawyer's professional career." (22) The MacCrate Commission also identified ten "Fundamental Lawyering Skills" and four "Fundamental Values of the Profession" that every lawyer should acquire before assuming responsibility of a legal matter and compiled them in what the Commission called a "Statement of Skills and Values." (23) The skills are problem solving; legal analysis and reasoning; legal research; factual investigation; communication; negotiation; litigation and alternative dispute resolution; organization and management of legal work; and recognizing and resolving ethical dilemmas. (24) The values are provision of competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development. (25) These skills and values are a simple and clear set of performance standards for legal...