It’s time for lawyers in the US to do something about white privilege

The profession, not just the test, needs to change.
The profession, not just the test, needs to change.
Image: Reuters/Adam Hunger
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The legal profession is slow to evolve. Recently, reports surfaced of a nationwide shift away from the annual bar exam, that grueling multi-day assessment of legal aptitude, a form in use since 1763. But as a profession, we should be thinking about more than merely overhauling a licensing exam.

Instead, we need to create wholesale change in the way lawyers are trained and qualified. To help correct the systemic lack of representation in this country, law students should be trained to promote social justice in their practice. And their accreditation as lawyers should reflect this training.

Law professor Deborah Archer—also director of the Racial Justice Project at New York Law School—writes of the difficulties she faces teaching her clinic students to effectively litigate issues of inequity, bias, and discrimination in what they see as a post-racial society.

She reports that they have a worldview common among a generation of young lawyers, many of whom appear to believe that, 50 years after the “end” of Jim Crow, we have transcended prejudice.

Similarly, in my civil rights litigation course, most students are earnest, incredibly hardworking and yet skeptical (at least initially) of the gross structural inequities in our country’s criminal justice system.

In a profession that is almost 90% white, with graduating students coming overwhelmingly from the upper socioeconomic tiers, it falls to law schools to pierce such privilege.

The lack of funding for public service positions, both in the federal government and non-profit organizations, is a significant factor contributing to the dearth of legal services for the poor. But there remain viable opportunities to represent the underrepresented.

Many law schoolsas well as the federal government, offer loan repayment programs for students who choose to pursue a career in the public interest. Law firms continue to engage in significant pro bono work—though their commitment to the underrepresented can and should be more vigorous, so that young associates are encouraged to provide legal services even at the expense of billed hours. Other creative opportunities for expanding legal representation have emerged in various states, including the creation of “LawyerCorps” programs that pair new attorneys with those in need of lawyers.

Nonetheless, many students are not prepared to provide such services upon graduation. Also, the current bar testing regime provides little incentive for them to learn to litigate in the public interest.

The legal profession is, after all, a vocation grounded both in service to the client and to the elevation of justice in society. The preamble to the Model Rules of Professional Responsibility, which governs legal ethics, states as much: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

This special responsibility has gone by the wayside. We need to impart both the practical skills and social conscience for law school grads to follow through on this responsibility before they leave the hallowed halls of law school.

And by practical skills, I do not mean just those that make graduating students more appealing as hires. There has been a noted rise in the promotion of experiential learning by law schools. Students with applied training (think deposition-taking and presentation in courts for instance) are considered more in-demand by firms where hiring of young associates remains far below pre-recession levels.

But such programs often omit a key component of what should be central to a law school education—instilling dedication to the client, yes, but also a need to promote social justice. That orientation cannot just be learned in doctrinal or simulation courses. They must be taught in real-world environments, like externships, or in a clinic like the one where I teach students to represent real clients.

Students need to be trained that service in the law is not service to self, but to the client and the community. That can be accomplished through a career in direct services or impact litigation, but also in pro bono counseling at a firm.

And we need to simultaneously amend the current accreditation system. It should not rely wholly on a test that measures rote memorization of legal topics rarely used by most in their practice.

Rather, the qualification process should take into account students’ experiences representing those who would otherwise lack counsel. As a positive example, New York now requires 50 hours of pro bono representation for those attorneys seeking admission to the state bar.

Almost 47,000 students graduated from law school in 2013. But there is not a glut of lawyers so much as an imbalance in where those lawyers practice. Promoting training in public service law and qualifying lawyers based on this training will go a long way toward correcting this imbalance.

This is precisely the kind of change the profession as a whole should embrace, and without delay.