America Needs a ‘Lawyers Justice Corps’: Paper

A Lawyers Justice Corps should replace the bar exam as a certification of competence for new attorneys, argues Touro College Law Prof. Eileen Kaufman in a forthcoming paper in the University of St. Thomas Law Journal.

Calling the proposal a partial response to the pandemic — COVID-19 has expanded the need for new lawyers while modifying in-person bar exams — Kaufman said that a Lawyers Justice Corps (LJC) would create an “equitable” licensing method while enhancing “access to justice.”

The LJC concept, developed by the Collaboratory on Legal Education and Licensing for Practice at Touro College-Jacob D. Fuchsberg Law Center, would not only help poor and under-represented communities get the legal representation often denied them, but put an end to the racial bias inherent in the traditional system for assessing young lawyers’ competence, wrote Kaufman, a professor emerita at the college and a member of the Collaboratory.

“Lawyers are needed to challenge racist practices, design new initiatives, and help communities overcome persistent bias,” the paper asserted. “While laws alone cannot solve the persistent and deep-seated problems endemic to our society, enforcing the laws we have and working for legal change is critical to progress, and lawyers are essential to every such effort.

Prof. Emerita Eileen Kaufman

“The Lawyers Justice Corps would put recent graduates to work addressing a wide range of such problems.”

Under the proposal, recent law school graduates would work for legal organizations that serve under-represented populations for at least one year. Supervisors would certify LJC members after six months of supervised practice, replacing the bar exam while still mandating that LJC members satisfy their state’s other licensing requirements.

“Instead of spending three months and thousands of dollars preparing for and taking the traditional bar exam, these graduates would begin work shortly after graduation and help address the legal problems facing underserved and vulnerable populations, as well as the societal issues challenging our communities,” Kaufman wrote.

States would select qualifying organizations, with LJC encouraging partnerships with ones that provide lawyers for underserved populations or further restorative justice approaches. Such organizations would initially pay LJC members as entry-level lawyers, law schools and foundations might contribute funding for additional positions.

Before the pandemic, 80 percent of low-income individuals’ legal needs were going unmet, and legal needs — from assistance with child support and child abuse to foreclosures and evictions — have only escalated since the pandemic began.

The LJC seeks to close this “justice gap” by putting attorneys to work at public interest employers shortly after graduation, Kaufman wrote.

“If all those graduates had participated in a Lawyers Justice Corps, serving clients immediately rather than studying for the bar exam, they would have provided up to 7,200 months — or 600 years — of additional services to poor and disadvantaged clients,” she added.

Beyond bolstering legal services for vulnerable populations, the LJC would provide a more “realistic” measure of competence for licensing than the bar exam, which some critics say was originally deployed to prevent people of color from becoming lawyers.

Bar exams continues to produce disparate racial outcomes, according to a California study,  which claims the selection of “cut scores” — minimum passing scores set by individual states — also has “an exclusionary impact on applicants of  color,”

Like other standardized tests, “differences in opportunities, not aptitude” largely determine which candidates succeed. Additionally, neither the bar nor cut score selection is reliably connected to attorney competence.

Intended to measure a candidate’s competence, the bar exam asks prospective lawyers to answer multiple choice questions rather than demonstrate applied skills, emphasizing speediness and memorization over comprehension.

“In sharp contrast, the Lawyers Justice Corps offers an immediate boots-on-the-ground approach focused on applying skills as well as knowledge as soon as the participant graduates from law school,” wrote Kaufman.

Real-world licensing is consistent with a recent report that identifies the skills minimally competent lawyers possess. Titled “Building a Better Bar: Capturing Minimum Competence” and sponsored by the Institute for the Advancement of the American Legal System (IAALS), the report lists several critical skills, including:

• • • The ability to interpret legal materials
    • The ability to interact effectively with clients
    • The ability to communicate as a lawyer
    • The ability to see the “big picture” of client matters
    • The ability to manage a law-related workload responsibly
    • The ability to pursue self-directed learning

The researchers recommended a licensing system that might test these skills more effectively than the bar exam. Their recommendations — the elimination of a written exam and requirement that candidates engage in clinical work — parallel to the structure and organization of the LJC.

If established, the proposed LJC might positively transform the legal profession, argued Kaufman.

“While the Lawyers Justice Corps might start as a small pilot in states willing to embrace innovation, it could prove critically important as a permanent alternative licensing option,” Kaufman wrote.

“A model program created in one state could be replicated elsewhere and would provide a more accurate way to license new lawyers that would serve the public while playing a key role in dismantling the status quo.”

The full forthcoming article is available here.

Eva Herscowitz is a TCR Justice Reporting intern.