Academic

Being a lawyer is NOT about intellectual debate??

By University of Houston Law Center

I read Stracher’s piece this morning, and was devastated to discover that being a lawyer is not about intellectual debate. 

I guess it explains a lot of wasted meetings at Justice.  It also explains why I incessantly get calls asking me to file amicus briefs—lawyers don’t engage in intellectual debate, they instead run to the halls of academe to provide it!   (link to Stracher’s piece)

With respect to the proposal of postgraduate work (also known as the articling process), in the daze of my youth I wrote a piece entitled “why have a bar exam?” calling for the abolishment of the bar exam.  For some reason the Utah Bar J. refused to publish it.  One proposal I considered was the articling process.  This is what I wrote:

            A final alternative [to the bar exam, which I advocate abolishing] could be a return to the articling process.   In the days of yesteryear, depending upon how far back one goes, budding lawyers studied for a year or more under the supervision of a more experienced attorney either just after leaving the farm, high school, college, or after graduating from a law school.   These more experienced attorneys would work closely with the new lawyer, and would determine the new lawyer’s competency to practice law after a year.   This articling method could work in Utah as well.   New attorneys could apprentice either as a clerk for a judge, an associate in a law firm, or even in a government position.  Their immediate supervisor(s) would write a letter to the Bar at the end of the year, commenting on the applicant’s ability to practice law.  

            There are two problems with this method, however.  First, the articling system could be abused by senior attorneys, who could use it to force the candidate to be an indentured servant with the explicit sanction of the bar (rather than do so implicitly by the present practice of imposing indentured servitude by the device of calling the candidate an “associate”).  Moreover, the training is likely to range from outstanding to wholly inadequate, or the useless by using the candidate as a runner for the supervising attorney or as office help in operating the copying machines, keeping the office clean and making sure the coffee is hot.   There is even the risk that the candidate might be called an “intern,” and we all know what can happen to and by persons called interns.  While a complaint process might be established to curb abuse and maintain some minimal level of competence of those who would train the young, the hassle of the bar doing so may be more than it is worth.

            A second concern is that articling could result in a law firm not adequately training the candidate or simply passing along the incompetent to prey upon the public.  It may be too much trouble to provide adequate training or to insure the less than competent do not become members of the legal profession.  While the firm will likely not employ the unworthy candidate after the period of articling, some poor member of the public may well employ the candidate to their regret.  On the other hand, the truly creative and independent candidate might find themselves at odds with the firm where they spend their year of servitude.  Such a circumstance might deprive the public of a lawyer who will make a difference because the establishment does not often appreciate those who do make a difference.

Full post as published by University of Houston Law Center Faculty Blog on February 08, 2007 (boomark / email).