At the beginning of every law school semester, I asked my students why they wanted to go to law school. What, I wanted to know, was their inspiration? I taught at a law school in the American South, so perhaps that’s why I always got more than a few of these responses: “I want to be like Atticus Finch.” Always, I would be disappointed.
As I’ve said before, the world does not need more lawyers like Atticus Finch. He’s a flawed inspiration for attending law school. He took on a case he didn’t want to take because no one else would do it and because his client, Tom Robinson, was not only righteous; he was obviously innocent. Then, Atticus slut-shamed an abused, impoverished girl to get his client off. Helped along by Gregory Peck’s steadfast portrayal in the beloved Hollywood classic, Atticus Finch, the lawyer-hero of Harper Lee’s To Kill a Mockingbird, has been inspiring law students for decades.
But what we don’t talk about as often is an unfortunate side effect of all this inspiration. In my experience, too many of these young Atticus wannabes took up the law because of a misplaced savior complex, not because they wanted to serve others, a drive lawyers are ostensibly taught to aspire to.
In my experience, too many of these young Atticus wannabes took up the law because of a misplaced savior complex. The problem with a lawyer with a savior complex is that he is easily disenchanted. Many, if not most, poor clients involved in our legal system are “guilty” in the eyes of the law. Indeed, once you step into a courthouse, it is difficult to find a client as purely innocent as Tom Robinson. A few months—heck, a few weeks—spent defending the rights of guilty clients against police and prosecutorial overreach would be enough to shatter the dreams of many a young lawyer anxious to defend the innocent.
The reality is the American legal system doesn’t need saviors. It needs clear-eyed lawyers who recognize that all members of US society have a right to a fair trial and a right to an attorney who is not overworked, underpaid, and abused by the system as well, as many public defenders can be.
The same holds true for civil litigation. For every case handled by Erin Brockovich, there are thousands that never see a fair trial because no lawyer is willing to take on the work at a rate clients can afford. (Remember, her lawyer-boss didn’t want to take the case, either, at first.)
As the American market for lawyers appears to have dried up, more than ever new lawyers need to set aside unrealistic expectations of being a savior and embrace the legal work that actually needs doing. In the process, they might help some people.
Too many lawyers?
Recently, much has been made about the bottom falling out of the law school market. The numbers have been dire. Law schools have been accused of padding their employment statistics and now must contend with new rules for reporting the employment of their graduates. Indeed, lawsuits have sprung up against law schools for misleading reporting practices.
Paul Campos, a leader in the “law school is a scam” camp, provided some dreary statistics in a 2014 post about legal employment: “In recent years, legal jobs for new law-school graduates have fallen into a markedly bimodal salary distribution. Most such jobs pay between $40,000 and $65,000, with the exception of associate positions at the largest law firms, which generally pay about $160,000.” What’s worse, “The high-five-figure-salary jobs that many prospective law students imagine they will settle for if they aren’t hired by a big firm basically do not exist,” Campos wrote.
With higher-paying legal jobs harder to find, applications to law schools have been dropping precipitously. What does this pay-to-debt ratio mean for law students? Students attend law school, accrue up to $200,000 in debt, and then cannot find jobs to pay off that debt. From Campos’s perspective, law school indeed seems to be a scam. (Especially if one attends a for-profit law school, the main target of his piece.)
With higher-paying legal jobs seemingly harder and harder to find, it’s not surprising that applications to law schools have been dropping precipitously in recent years. Some say that this drop in applications is simple predictable market adjustment: There are no jobs, so there should be fewer lawyers. In response to the drop in applications, some law schools have begun to close. As Jordan Weissman at Slate reported, law schools have been “locked in brutal competition to attract students who might theoretically one day be qualified to sit for a bar exam.” Weissman is referring to American Bar Association standard 501, which requires schools to avoid admitting any student “who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.” If law schools admit students who can’t pass the bar, they can lose their ABA accreditation.
But I’d say that the problem is not that we have too many lawyers, or that there aren’t enough legal jobs. The problem is we have forgotten what the purpose of the legal profession really is.
Too much supply and too much demand
The way the American legal profession is structured today, there are many, many people who need legal services and cannot afford them, hence the familiar trope of overworked public defenders paid for by the state. But there are still many more people in civil litigation without representation: tenants abused by a landlord in eviction proceedings (as reported by Matthew Desmond in his new book), and debtors abused by a credit card corporation or by a collections agency. These clients need representation, too.
Right now, in order to meet this vast need for legal representation, the legal system relies on a hodgepodge of public defenders, legal aid attorneys, law school clinics, and successful firms who send out new attorneys on occasional pro bono service.
If you were just out of law school and saddled with $50,000 to $200,000 in debt, it would be hard to imagine making a real living as a lawyer the poor and underserved. But when we look at legally underserved populations, it is hard to say that we have too many lawyers. We have a lopsided market in which poor people can’t afford legal fees and are thus priced out of legal help.
Instead, what we have is a lopsided market in which poor people can’t afford legal fees and are thus priced out of legal help, and new lawyers are saddled with astronomical school debt and thus can’t afford to provide legal services to a vast market of people who need it. And to further the problem, many lawyers just don’t want to provide such help in a pro bono or “low bono” fashion—despite their hero Atticus and his acceptance of a poor farmers’ goods in lieu of traditional fees.
There are positive changes on the horizon, though: Not everyone is as pessimistic as Campos and others about the legal market. But the changes that will need to take place might seem revolutionary to lawyers of the old guard. For one thing, it’s become very hard for lawyers to try to make it a solo practitioner. “According to the latest IRS data, in 2013, the average income for a solo practitioner was $49,000 a year. That’s an average,” University of Tennessee law professor Benjamin H. Barton tells Quartz. Barton, the author of Glass Half Full: The Decline and Rebirth of the Legal Profession, notes that while “28-40% of people with J.D.s don’t work as lawyers… the competition at the low end is so brutal that people are leaving rather than trying to make it as a solo” law practitioner.
How can it be true that we have unemployed or underemployment lawyers, and also so much legal work needing to be done? So how can it be true that we have unemployed or underemployment lawyers, and also so much legal work needing to be done?
For the answer to that question, Barton points to a very particular problem with “how we train people to be lawyers.” Lawyers tend to “treat cases as unique snowflakes”—even when, in actuality, they don’t need to be. And because of this highly customized approach to law practice, “Lawyers are pricing themselves out of the demand. We’re creating the wrong kind of supply to meet the existing demand.”
In other words, lawyering as a profession needs to change completely. The age of Atticus is long over, and that’s a good thing. If the legal profession were doing its job right, everyone in Maycomb County would be able to afford a lawyer, and Tom Robinson wouldn’t have to rely on the charity of a lawyer-savior to have reliable representation at his trial.
And, a byproduct of ensuring that all people who need lawyers can afford them is that lawyers will have clients to serve. So how do we get there?
Shifting the way we think about legal services
The solution, according to Barton, is a radical shift in how lawyers deliver legal services, including embracing “computerization and standardization. Lawyers must learn how to provide legal services in a standardized way and en masse.” Barton points out that, for example, there are computerized “forms that will take you through every step of an uncontested divorce” and other simpler legal matters.
This shift especially holds true for solo practitioners and small firms that are “seeing the rise of outsourcing and computerization.” Transitioning enables these kinds of lawyers to outsource everything from billing to paralegals. Indeed, small business owners in other fields have been outsourcing their support staff for a while now, via virtual personal assistant agencies and more. Barton’s suggestion for small firms seems to be just a matter of the legal profession catching up to everyone else.
Lawyers must learn how to provide legal services in a standardized way and en masse. Barton’s suggestions are not without their critics. Many who oppose his position believe that the kind of law he is suggesting is not as good as the highly customized law that a client might receive at a white shoe firm. But Barton suggests that asking, “whether it is ‘as good’ is not the right question.” Instead, the right way to look at it is this way: “People will buy different types of legal services depending on what they value and what they can afford and what they need.” Furthermore, a lot of the criticism also stems from some deep-seated technophobia that the legal profession, frankly, needs to just get over.
“Poor people should have something” rather than nothing, Barton says. “Under the circumstances, I would rather computerization.” And, Barton points out, computerization is improving. “Computerization will be able to personalize lawyering more every year, as expertise meets computerization.”
To reinvent the supply of legal services to meet the actual demand for those services, lawyers need to set aside their dreams of the gentleman lawyer that Atticus Finch embodied, and set about actually helping the massive number of middle- and low-income people with their legal problems in a fashion that is both practical for lawyers and affordable to their clients. That would be truly revolutionary.