Foreword

 

Dean Toni M. Massaro^**

 

In December of 2001, at the end of a long review session for Civil Procedure, a group of my first-year law students remained after the session to talk. The conversation shifted from subject to subject as we all began the exhale that occurs after the most exhilarating semester of law school: the first. As is typical, the students were now channeling their nervous energy for class material into energy for exam preparation. However, these students were unusual because that nervous energy had not overtaken their first semester zeal for the law; on the contrary, they seemed eager to maintain the spirit that brought them to law school and were aware that much in the process can dissipate that spirit.

One of the subjects to which we turned was the bar examination. A veteran of two such examinations—Illinois and Arizona—I commented that the summer of the bar examination is an exercise in lost opportunities. Like law graduates everywhere, our students take the commercial bar review courses in droves. Because some of these review courses are held on campus, I witness the annual migration and congregation of recent graduates. They appear in late-May, fresh from their law school convocation exercises. By late-July their faces are drawn, many are unshaven, and all are genuinely miserable. Over two months have passed in which they have digested countless facts,

mnemonics, and formulas; written countless practice essays; and answered endless multiple-choice questions.

By mid-July, I begin to receive e-mails from frustrated or addled students studying for the bar. They have either lost faith in the review course because the test counts as “correct” answers that the students find so unnuanced as to be incorrect, or have lost faith in us for not teaching them the “right” answers to these questions. Some become so overwhelmed by the sea of information that they lose track of basics they had well in hand when the process began. For many of them, studying for the bar becomes a surreal experience in which “ordinary” people—who watch television, go to movies, and continue their normal lives—now appear to lead alien, privileged existences that the bar sufferers envy.

I told my students in 2001 that I have watched and lamented this ritual for over 20 years, but I have done nothing to change it.

“What would you do instead?” one asked.

“Imagine that all of those students—or even some of them—spent that summer between law school and practice doing public interest work or participating in a training program that provided legal services to an under-served population. Imagine that all of the time, energy, and money currently being spent on bar review courses and preparation were spent instead on some kind of hands-on service practicum, with an evaluative component, where students worked with attorney mentors; took classes on law, office management, and other issues chosen from a menu that was relevant to their career destinations; and then entered the profession,” I responded.

“Like AmeriCorps!” one offered.

“But how would this be financed?” another asked.

And so the discussion continued. For over an hour we discussed a model for devising an alternative to the traditional bar examination that included a service component, a training component, and an evaluative component.

These students deeply impressed me. They all had more pressing and self-serving things to do that afternoon than muse about an AmeriCorps for lawyers. They had just spent several hours reviewing Civil Procedure, their first set of final examinations was looming, and they were probably hungry since it was late afternoon. Yet they warmed to the topic, brought insight and pragmatism to the discussion, and seemed unwilling to let it go.

As I made my way back to the office, however, I felt a familiar pang of guilt. Every year I think about this subject, but I do nothing to advance the discussion. The nature of the beast is such that there is no one group significantly interested in changing the examination. Those who must take the bar have their hands full preparing for the exam. The courts that offer it have their hands full in designing, administering, and grading it. Those who have passed it have little incentive to look back and engage in the agonizingly difficult task of changing something that serves such an important nationwide gate-keeping role. Those who have failed it have the least ability to change it. Academics have little interest in modifying the examination, lest the gate-keeping function shift to law schools and compromise their curricular autonomy. Yet each year, thousands of people pay up to $2500 for commercial preparation courses and submit to the examination. Their labors might yield a much finer fruit if only someone took the issues seriously and devised a way to experiment with alternatives.

This is where CLAS fills the void. Led by Sally Simpson, that original band of Civil Procedure students formed a student organization at the University of Arizona called the Community Legal Access Society (“CLAS”). Following that first discussion, they set out to research the bar examination and licensing process, any proposed or extant alternatives to the traditional examination, clients’ unmet needs, the potential costs of a mentoring program, political and other likely obstacles to alternatives, possible funding sources, and anything else relevant to the success of a pilot program for an “alternative bar examination.” Members of this group were instrumental in the formation of a state bar task force devoted to investigating the feasibility of a “public service” alternative to the Arizona bar examination.[2]

CLAS designed a Web site and developed a proposal called the Community Legal Access BarAlt (“CLABA”) that attempts to answer the most important questions about how such a public service alternative to the traditional bar examination might work. This Article is a detailed description of the CLABA proposal written by the person most responsible for its thoughtful development: Sally Simpson.[3]

Some have dubbed CLABA the “University of Arizona plan,” but it is actually the work of exceptionally dedicated and public-minded Arizona students, not the law school itself. These students proceeded under very little faculty supervision and devoted enormous amounts of time and energy to a project that was unlikely to benefit any of them personally.

I am proud of these students and of the service ethic their work portrays. When they graduate they will have left something tangible behind for the whole profession to ponder: sound research, creative ideas, and a concrete proposal for change. Their admirable contribution is now gaining a wider audience with this Symposium and the work of Georgia State University College of Law students and faculty. I am honored to introduce their work. Again, I emphasize that this is wholly their work. As their teacher, I have learned a beautiful lesson about motivated, creative students: They achieve so much more if we do not stand in their way!

 

Introduction

CLABA is a proposed public service alternative to the traditional bar examination in Arizona. The goal of CLABA is to interactively assist the community by helping to build it rather than simply protecting it from incompetent attorneys. Initially conceptualized as an AmeriCorps-type opportunity for recent law school graduates, CLABA has evolved into an innovative, integrated solution to unmet legal needs within both the community and the profession.

Part I of this Article summarizes the CLABA Proposal; Part II addresses the unmet community needs that CLABA will help remedy; Part III describes how CLABA will function as an efficient stepping stone into the legal profession; and Part IV discusses the organizational and quality control issues of CLABA.

I.   Proposal Summary[4]

In brief, CLABA anticipates a one-year, post-JD apprenticeship program. This program will provide both reduced-fee legal counsel and representation to lower middle-income populations and serve as an alternative method of first-time attorney licensure and bar admission. CLAS designed CLABA to address legal service gaps, to ease the transition from law school to practice, to strengthen professionalism in young attorneys, to enhance public confidence in legal practitioners, and to offer an alternative evaluation methodology for initial lawyer licensure.

CLABA creates a freestanding 501(c)(3) “Institute” with a fully staffed office and flexible hours. The Institute will cover a wide spectrum of practice areas[5] and act as a community and professional resource.[6] Individuals, small businesses, and non-profit organizations with incomes of approximately $15,000 to $60,000 may be eligible for legal counsel and representation. This potential client base is demonstrably underserved. Fees will likely range from $15 to $35 per hour, with caps applied to some types of client matters.

Eighteen CLABA apprentices rotate in groups of three through six core practice areas, each lasting eight weeks.[7] A full-time lawyer-mentor who has demonstrated a wide depth and breadth of practical experience, as well as high ethical values heads each practice area,[8] oversees case management, serves as attorney of record, and acts as a coach and advisor for apprentices to ensure that all clients receive diligent, competent counsel and representation.[9] The lawyer-mentors also conduct competency-based performance evaluations throughout the rotations. Assessment tools include both subjective and objective evaluations, and focus on the skills and values necessary for the effective practice of law.

Before starting the CLABA program, apprentices must matriculate from an ABA-accredited law school with a minimum GPA of 2.75 or the equivalent. They must also have completed specific core classes, and passed the Multistate Professional Responsibility Examination (“MPRE”) as well as any jurisdictional character and fitness screening process.[10] At the end of the year-long apprenticeship, if the apprentice successfully completes all evaluations, he or she may become a licensed attorney if the state’s highest appellate court approves the individual.[11] Should the apprentice leave or be ejected for any reason before completing the program, he or she may take the standard written bar exam to attempt licensure.

Although client fees will offset a substantial portion of the Institute’s operating expenses, the program will require other funding. CLABA will not divert resources from existing legal aid programs, nor will it accept funding that could compromise the program’s integrity. CLABA seeks to create a balanced portfolio of funding sources: national, state, and local, including private and public—with minimal reliance on government funds. For reasonable assurance of a continuous ability to serve clients, CLABA will avoid undue reliance on any one source or sector and will align rollover and run-off timetables of grant funding accordingly. CLABA’s fiscal and apprenticeship years run from July 1 to June 30.

II.   Current Environment: Unmet Needs and Their Multiple Causes[12]

Low and moderate-income populations’ unmet legal service needs are universally acknowledged. Studies undertaken to document the nature and extent of the problem invariably indicate substantial unmet legal needs in this segment of the population.^[13] Despite the legal profession’s attempts to address these deficiencies in a variety of creative ways, the system is not equipped to handle the pace at which individuals’ needs grow.[14] Further, necessity dictates that the poverty-stricken receive the majority of available resources. These individuals’ needs are generally more severe and their issues are more taxing on the courts’ resources.[15]

Because individuals in the lowest income brackets receive the majority of available funds, working-poor and moderate-means households are effectively locked out of the system. There is little chance that these individuals’ unmet legal needs will compel the system to fund an organized initiative for change.[16] Although the need is evident, available services are inadequate and likely will remain so for those whose income falls between 125% and 500% of federal poverty guidelines.[17] For a myriad of reasons, a substantial number of households earning up to $60,000 may be unable or unwilling to seek legal assistance.[18] Negative perceptions of the legal profession and high costs relative to household income contribute to this population’s inability or failure to seek help from attorneys.^[19] As the number of working-poor and moderate-means households rises, so does the number of situations where subsidized legal assistance may be appropriate but is unavailable. Without this assistance, individuals may fail to recognize that legal remedies are available, may choose to ignore the problem, may seek assistance from non-attorney service providers, or may attempt to navigate the system alone, sometimes with dismal and expensive results.

Many jurisdictions have initiatives under way to provide self-help information to the public, to provide online forms where feasible, and to make the system generally more accessible.^[20] Yet, no matter how transparent the system may be, the law remains complex, nuanced, and phrased for lawyers—not laypeople.[21] It is not surprising that self-represented individuals are less likely to enjoy favorable outcomes or leave the system with a satisfactory experience.^[22]

A profession with a public relations problem cannot resolve the public’s unmet needs. While the legal system receives high marks for credibility, people do not view lawyers within it favorably.[23] Although most Americans say that lawyers know the law and can be helpful in navigating the legal system, they simultaneously categorize lawyers as greedy, manipulative, and corrupt.[24] Consumers view disciplinary bodies as lacking credibility because they feel self-regulation equals self-protection, rather than an effective method of protecting public interests.^[25]

Studies reveal that lawyer avoidance is a growing trend because consumers harbor feelings of vulnerability, uncertainty, and distaste toward the legal profession.[26] Consumers cannot tell a “good” lawyer from a “bad” lawyer, do not know what services they should seek or receive, and have a limited understanding of how much the undefined services should or will cost.[27] Consumers feel attorneys oversell their qualifications, overcharge, over promise, and take too long to resolve problems.[28] One frequent consumer complaint is a simple matter of courtesy: failure to return clients’ phone calls.[29]

On a more positive note, most consumers who hire a lawyer are satisfied with attorney performance and generally have better perceptions of the profession than individuals who have had no personal contact with lawyers.[30] However, if lawyer avoidance continues and average consumers remain unable to afford legal fees, negative public perceptions will grow rather than abate. Consequently, tackling unmet legal needs will also require attending to the profession’s public relations problem.^[31]

III.   Access to the Profession

Entering the legal profession is difficult. For most students, law school is a grueling three years of learning a new approach to solving problems within a complex system of rules, precedent, and jurisdictional differences. At the end of law school, the bar admissions process looms with its potential to significantly reduce the number of entrants to the field. Even if admitted to practice, new challenges arise immediately. Nascent attorneys recovering from the bar exam must rapidly assimilate into the ever-more specialized practice of law, while spontaneously exhibiting professional competencies that could not have sufficiently developed during law school. People rarely question or consider these “getting-in” and “settling-in” rites of passage as sufficiently problematic to warrant immediate action. At the same time, the current call for renewed commitment to attorney professionalism provides an impetus, as well as an appropriate backdrop, for just such action. The opportunity exists to improve the transition from law school to practice, to strengthen professionalism in new attorneys, to enhance public confidence in legal practitioners, and to offer an alternative evaluation methodology for initial lawyer licensure that addresses both getting-in and settling-in issues.

A.   The Bar Admissions Regimen

Successfully navigating a state’s bar entry regimen is the first hurdle in transitioning from law student to legal practitioner. All states perform character and fitness screening, and most require the MPRE.[32] For the written portion of the exam, most states use the Multistate Bar Examination (“MBE”) to test general legal knowledge and some form of essay exam to test application of that knowledge to a set of facts.[33] The Multistate Performance Test (“MPT”), a fairly recent addition to the bar exam program regimen, developed by the National Conference of Bar Examiners (“NCBE”), is growing in popularity and will be used by thirty-one states in 2005.[34]

Passing character and fitness screening and the MPRE indicates that applicants meet ethical standards and do not pose a threat to the public.[35] The purpose of the written examination is to test the applicant’s ability to identify legal issues in a fact pattern, engage in a reasoned analysis of the issues, and arrive at a logical conclusion by the application of fundamental legal principles in a manner that demonstrates a thorough understanding of those principles.[36] “Its purpose is to protect the public, not to limit the number of lawyers admitted” or to “test for information, memory, or experience.”[37] Pass rates vary widely from state to state and from test to test, although the national average bar exam pass rate was 74% in 2002 for first-time exam takers.[38]

At the same time, since the release of the groundbreaking MacCrate Report in 1992, the traditional written bar exam has experienced greater scrutiny. Many have challenged its efficacy in assessing candidates for the skills that are actually necessary for the competent, diligent, and ethical practice of law.^[39] Whereas the traditional bar exam tests for recognition and application of black letter law, the MacCrate Report indicates that the test should evaluate a broader range of competencies before allowing graduates to practice law. Among these skills are legal analysis, legal research, problem solving, oral and written communication, fact investigation, negotiation, client counseling, litigation and alternative dispute resolution, time management, and the recognition and resolution of ethical issues.[40]

In addition to many law review articles, symposia, and state bars extrapolating and integrating this competency-based testing concept, the Conference of Chief Justices (“CCJ”) addressed this topic in its 1999 National Action Plan:

State bar examinations traditionally test bar applicants’ knowledge of substantive legal principles, but rarely require more than a superficial demonstration of the applicants’ understanding of legal ethics, professionalism, or basic practical skills. Thus, they fail to provide an effective measure of basic competence of new lawyers. The format of the bar examination should be modified to increase the emphasis on the applicants’ knowledge of applied practical skills, including office management skills. Performance testing methods should be used to evaluate applicants’ writing, research, and organizational skills . . . . A passing score on the bar examination should be an indicator of basic competency to practice law.[41]

Individual jurisdictions integrated the MacCrate Report’s competency-based testing recommendations in various ways. One result was the implementation of the NCBE-developed MPT. However, the debate continues as to whether it is really a new competency-based performance evaluation or merely a skillful repackaging of old methodologies testing the same black letter law and issue-spotting ability. Some law schools began their own programs by integrating competency-based testing into their curriculums.[42] Others proposed LLM-type post-JD residency programs based on the medical school model.[43]

Of particular importance is a proposal by City University of New York Law School Dean Kristin Booth Glen for an innovative Public Service Alternative Bar Examination (“PSABE”).[44] PSABE is an alternative competency-based evaluation for bar entry that tests bar candidates during their service in the New York Superior Court system.[45] Dean Glen’s comprehensive analysis of the methodology, outcomes, and deficiencies of the current bar exam process from multiple disciplinary viewpoints provides a solid foundation from which to judge all future proposals for alternate methodologies for bar admission and new lawyer licensure.^[46]

 

B.   Transitional Education and Professionalism

“Professionalism” not only includes legal ethics, but also civility, “competence, integrity, respect for the rule of law, participation in pro bono and community service, and conduct by members of the legal profession that exceeds the minimum ethical requirements.”[47] Authors throughout legal history have cited as a concern the apparent trend of declining professionalism; it is the focus of untold numbers of judicial and bar association boards, sections, committees, task forces, and working groups. Transitional education and support for new lawyers is imperative in developing the competency and professionalism required to serve the public and uphold the fair and equal administration of justice. Nationally, the CCJ 1999 National Action Plan specifically addressed this need for transitional education and support for new attorneys, noting that “many young lawyers enter legal practice in need of basic lawyering skills, often without the support of a large firm to assist them during those first transitional years.”[48] CCJ further noted that the “lack of education and support is exacerbated by a ‘Rambo’ approach to lawyering that, to newly admitted lawyers, may appear to be the norm rather than the exception.”[49] Rather than responding to existing disciplinary problems, CCJ recommended that judicial leadership support proactive, practical-skills training tailored to the individual needs of different categories of law practice, while urging consideration of more extensive apprenticeship programs.[50]

The organized bar works diligently to provide educational opportunities and transitional support, as well as to encourage professional development. Many states now have mandatory practical-skills and professionalism programs for newly admitted lawyers and make continuing legal education credits mandatory throughout attorneys’ careers. Individual and collaborative programs are also emerging to fill the gaps between law school theory and real practice demands.[51]

IV.   CLABA Fundamentals

University of Arizona law students designed CLABA as a combined apprenticeship and post-graduate residency program focused on providing high-quality, reduced-fee legal counsel and representation to those earning between $15,000 and $60,000 per year. Working from a freestanding 501(c)(3) CLABA Institute, the apprentices would deliver affordable services within a structured mentoring environment.[52] The Institute would also sponsor year-long “residencies,” in which the Institute would evaluate participants against rigorous, objective criteria by using a variety of methods designed to test the legal competencies required of a successful, practicing attorney. CLABA would serve the community and the profession by using a synergistic approach to address multiple related issues and to achieve economies of scale by using the same dollars to achieve numerous goals.

 

 

 

 

 

A.   CLABA’s Organizational Structure

A CLABA Institute is a non-profit corporation whose directors are representatives from the jurisdiction’s lawyer licensing body, highest state court, state bar association, and the public, with the Institute’s Executive Director also serving as a non-voting member. CLABA’s Board of Directors approves policies for client acceptance parameters, apprentice and mentor selection processes, and apprentice evaluation methodologies. The Board is also responsible for the final hiring decisions for apprentices and mentors, annual performance evaluations of the Institute and its Executive Director, and approval of candidates’ names for submission to the state’s attorney licensing body. Board members do not receive compensation for their services.

The Institute’s Executive Director performs multiple functions. As an established, experienced attorney, the Director fills a role similar to that of a senior managing partner in a mid-sized firm. The Executive Director is available for consultation on legal issues and also oversees the Institute’s administrative components. However, the Executive Director is also responsible for establishing and maintaining collaborations with both legal and non-legal members of the community and outside organizations. The Executive Director must also garner financial and in-kind resources to supplement the fee income generated by the Institute. Because of the high-profile nature of this position, the heavy load of responsibilities, and the absence of year-end profit-sharing opportunities, the Executive Director is relatively highly compensated.

The Institute recruits, employs, and trains six lawyer-mentors that act as section heads, one for each of the six practice areas. Because they serve as functional equivalents to the Bar Examination Committee of each jurisdiction, recruiters focus the recruiting and selection process on choosing only the most experienced and qualified candidates to act as evaluators and gatekeepers for entry to the profession. Once the Board selects and approves a lawyer-mentor candidate, the candidate must complete a mandatory week of structured training before the new hire is qualified to assume the role of a section head. This instruction includes: (1) appropriate mentoring strategies and coaching techniques; (2) approved office management practices and processes for the Institute (within each jurisdiction’s particularized parameters); (3) proper evaluation methodologies and their application within the Institute; and (4) a refresher course in professionalism and ethics. In addition to ongoing apprentice mentoring and evaluation, the lawyer-mentor section head’s responsibilities include serving as attorney-of-record for all CLABA clients. This duty imposes on the section head ultimate responsibility for client matters and periodic one-on-one interaction with CLABA clients.

Apprentices are also CLABA Institute employees. During its pilot period, CLABA will be limited to in-state law students with 18 apprenticeships available for any given year (July 1 through June 30). To be as inclusive as possible, while still assuring a continuing base of committed apprentices to serve CLABA clients, qualified law students may apply to the program in either their second or third year.^[53] A qualified applicant must have a minimum cumulative GPA of 2.75 at the time of application^[54] and must submit an application package including a statement of interest, transcripts, letters of reference, and additional documentation. An unsuccessful second year applicant may reapply in his third year.

Candidates will submit application packets in October and November and have oral interviews as needed in January. The Institute will announce the names of admittees and wait-listed candidates by January 30th, although final admittance is contingent upon the graduate maintaining the minimum GPA through matriculation, completing selected core classes within the curriculum,^[55] and passing both the MPRE and the state’s character and fitness screening. Consolidated re-verification of the admittees’ qualifications before starting the apprenticeship provides reasonable assurance that: (1) apprentices begin the program with sufficient “black letter” legal knowledge to serve CLABA clients with limited guidance from a lawyer-mentor, and (2) apprentices have met traditional ethics, character, and fitness gate-keeping requirements.

The CLABA Institute also employs three non-attorney staff members. An Executive Assistant works closely with the Executive Director and serves as office manager and compliance officer for the Institute. Two Office Assistants report to the Executive Assistant and each provides administrative support to three section heads and nine apprentices. Support staff allow section heads and apprentices to retain primary focus on providing legal services.

CLABA staff and apprentices work at the CLABA Institute, which is a fully staffed office with flexible hours that serves as a community and professional resource. Legal services will be available for both private and public needs and will be broken into six umbrella practice areas.^[56] The model Private Life Practice Group contains family law and domestic relations, personal finance and planning, and personal and economic injury sections. The Public Life Practice Group includes sections for business finance and planning, government regulation, and misdemeanor criminal defense.

After an initial one-week orientation period, CLABA apprentices rotate in eight-week intervals through either the Private Life or the Public Life Practice Group’s sections. Once the Institute accepts a legal matter and assigns it to a practice section, the client matter remains with the original apprentice and lawyer-mentor despite an apprentice’s rotation to another practice area. Normal client matter runoff permits apprentices to accept new clients and client matters throughout later rotations.

At the end of the first Practice Group Rotation, the apprentice spends one week in file review, closeout, and debriefing with lawyer-mentors. The apprentice then spends the following week in an orientation with the other Practice Group section heads. This two-week “break” period will typically fall in weeks 26 and 27 of the apprenticeship, generally occurring between December 21st and January 4th. Although existing clients will continue to receive service and potential clients may submit applications, the Institute will not accept new cases during this period.

The second rotation sequence begins immediately after the orientation in week 27 and ends in week 51. The apprentice spends the final week of the apprenticeship (week 52) in file review, preparing for transition or closeout as appropriate, and debriefing with lawyer-mentor section heads. Clients with active files either transition to an incoming apprentice or are retained for closure by the attorney-of-record.

Within three weeks of completing the CLABA program, the Institute notifies apprentices whether it will recommend them for licensing-body approval or whether their performance failed to meet the recommendation standards. However, all apprentices may not complete the apprenticeship period.[57] The lawyer-mentors monitor apprentices and client matters closely and will intervene immediately in any situation where an apprentice fails to meet his or her professional responsibilities. Deficiencies in apprentice performance may lead to warnings and corrective action plans, intensified and/or remedial training, and possibly even expulsion from the program. The Institute will not compromise high standards of client service and program integrity under any circumstances.

B.   CLABA Serving the Public: Legal Counsel and Representation

CLABA will have the capacity to serve both individuals’ personal and business needs, although certain risk-limiting restrictions will apply.[58] Eighteen CLABA apprentices, supervised by six experienced lawyer-mentors, directly serve clients whose legal needs would otherwise be unmet. If each apprentice averages 33 direct service hours per week for 45 weeks this will provide more than 26,750 new hours per year for these clients. If an average client matter takes an apprentice ten direct service hours to resolve, then the Institute could serve 2675 clients annually at an average cost of $250 to each client.[59]

Clients come to the Institute from the general population, having learned of its services through referrals from community partners, private practitioners, on-line sources, friends or relatives using CLABA services, or media public service announcements. In March of the pilot program’s first year, the Institute will begin marketing efforts and collaborations to publicize the Institute’s July opening and will start taking applications for its services as early as mid-June. Typical clients may be individuals, small and start-up businesses, or non-profit entities whose annual earnings and legal matters fit within board-approved acceptance parameters.

CLABA’s family law section will provide assistance with divorce, paternity, child custody and support, domestic violence, enforcement, modification, and other matters. Within the personal finance and planning section, clients will receive help with wills, trusts, estates, probate issues, personal bankruptcy, landlord-tenant disputes, tax, insurance benefits, social security, and other related areas. CLABA’s personal and economic injury section may assist clients with breaches of contract, property damage, insurance, workers’ compensation, and personal injury. CLABA’s criminal defense section may undertake misdemeanor and petty offense cases.

The CLABA Institute will also be available to assist small businesses and community organizations. For example, CLABA may help with start-up planning, periodic contract review, and navigating administrative law. Within the business finance and planning section clients may receive help with issues surrounding contracts, employment, tax, intellectual property, bankruptcy, and related areas. CLABA’s government regulation section may address client concerns ranging from administrative law to individual civil rights issues.

Pricing of these services will depend on a mixture of the client’s ability to pay and the comparable legal service costs within the community. Some services will be subject to hourly billing and may have caps, while the Institute may provide other services for predetermined flat fees. The Institute will maintain a standardized price matrix and make it available to clients during their initial interview. This will help the clients assess the potential costs of using CLABA services, thus eliminating one common source of consumer anxiety in utilizing an attorney’s expertise.

As in traditional private practice, CLABA retains the right to accept or reject client matters. The Institute will use a preliminary, user-friendly questionnaire to assess income qualifications and gather general information on the cause of concern. Once the initial information has been processed (including conflict checks and income verification), the Institute will schedule an initial interview for the client in the appropriate practice section. Apprentices will take particular care during initial interviews to listen to the client’s needs and desires and to communicate possible options and scenarios to ensure that the client understands. In some situations, a client may decide that no action is warranted; there may be no legal basis for a claim, the cost of pursuit may outweigh the benefit, or an alternative method of problem resolution may be available. In other situations, the matter may fall outside CLABA’s parameters for case acceptance. In many instances, however, a client will choose to utilize the Institute’s services.

In all of these situations, the consulting apprentice will make follow-up contact within one week, thus addressing another common client complaint—lack of attorney communication. The initial interview follow-up policy is just one example of the quality controls present to safeguard clients’ and the program’s integrity. The Institute designs, writes, and enforces policies and procedures to foster the highest standards of professional conduct, from ethics to case and practice management. The experienced lawyer-mentors oversee apprentices at a 1:3 ratio, and thus are able to closely monitor the quality of service provision. Immediate feedback to apprentices on their performance allows them to improve the quality of service over the course of the year. CLABA anticipates using client surveys as an additional measure of current performance and as a source of ideas for improvement.

C.   CLABA Serving the Profession: Bar Admission Screening, Transitional Education and Professional Development, and Mentored Professionalism

CLABA, unlike the traditional bar exam, evaluates apprentices on a range of competencies using a variety of different methods over an extended timeframe. During this period, apprentices practice hands-on application of legal theory and skills in a well-supervised environment. Also, unlike traditional on-the-job training, CLABA pre-screens lawyer-mentors to be exemplary role models, epitomizing the professionalism, civility, and effective practice methodologies that should remain with the new lawyers throughout their professional careers.

1.   Alternative, Competency-Based Evaluation for Attorney Licensure and Bar Admission

CLABA alters the existing bar admissions process rather than replacing it. Two of the three required elements for bar entry, MPRE passage and character and fitness screening, remain unchanged as CLABA candidates must meet the same prerequisites for entry to the apprenticeship program. Additionally, CLABA’s evaluation processes and program safeguards meet or exceed the process integrity relied upon in the current written examination component.

To match the rigor of the written bar exam, CLABA uses bar examination standards as benchmarks in the selection of its evaluators and in its evaluation process. First, lawyer-mentors are functionally equivalent to Bar Exam Committee members. Thus, their qualifications must meet or exceed those of Committee members. Required lawyer-mentor qualifications mirror those of Committee members but also mandate supervisory experience and demonstrated competencies ranging from legal writing to organization and time management.

Second, the lawyer-mentor hiring process must be equally vigorous in matching the Committee member selection and approval process. In general, vesting CLABA’s Board with final hiring authority mirrors the level of scrutiny and objectivity in selection and approval because the Board’s composition is a consolidated subset of the two bodies that select and approve Committee members.[60]

Third, CLABA’s evaluation process must also uphold program integrity in assessing candidate competency and in protecting the public. This entails defining the purposes of the testing, the areas tested, the methods and assessment tools, and the quality controls for objectivity, reliability, and validity of the process results. CLABA generally matches or exceeds traditional bar examination standards in this area as well.[61] CLABA evaluates ten recognized legal competencies, whereas the current system tests three. CLABA uses seven evaluation methods and various objective and subjective assessment tools continuously over a one-year period, while the current system typically uses one method (written examination) and two tools (multiple choice and essay questions) over a two or three-day period. The Institute provides lawyer-mentors with structured training in evaluation theory, technique, and application. Committee members may attend NCBE training or may receive training from their predecessors, relying on internal policies and procedures that have proven to be trustworthy.

CLABA further imposes systemic quality controls for objectivity and accountability that: (1) result in at least 14 different evaluators for each apprentice over the course of the year; (2) provide for regular performance evaluations of the lawyer-mentors in carrying out their oversight and gate-keeping functions by the Board of Directors and Executive Director; (3) include both qualitative and quantitative evaluation methods; and (4) anticipate follow-up during the first ten years of the apprentices’ practice to ensure continued competency and client satisfaction.

Conversely, under the current bar exam system, objectivity is assured through anonymous grading, having different evaluators/graders assess different exam questions, and by scoring and scaling based partially on NCBE computations of MBE results. The Bar Exam Committee reports to the highest appellate court, but no formal criteria or mechanism generally exists to “evaluate the evaluators.” Like CLABA, bar exam committees employ both qualitative and quantitative evaluation methods but hold calibration sessions during the grading period to ensure uniformity in their scoring of exam answers. Lawyer oversight bodies derive post-exam information on lawyer performance from complaints and disciplinary actions; the fewer the disciplinary actions, the better the public protection accruing from the current gate-keeping process.

Finally, CLABA evaluations provide feedback to apprentices so that they may improve their skills. Bar examinations provide no such feedback mechanism to allow test takers to learn from their mistakes, yet one suspects that the general public would benefit from lawyers entering the profession further along the learning curve.

2.   Transitional Education and Professional Development

Law students graduate with the ability to analyze and apply legal theory and black letter law but may lack practical experience. The current bar admissions system licenses those who pass the exam regardless of whether they know the location of the court house, the basics of client interaction, case management, or bookkeeping methods to segregate client funds. Although law schools may offer access to this type of knowledge, they do not mandate courses with this content. While many law students take clinical skills courses, many others do not. Students instead may focus, quite logically, on the core courses tested on the bar exam or courses covering anticipated specialties or both.

Once licensed, there is a general systemic responsibility to ensure that new attorneys learn the fundamentals of practicing. The responsibility most often falls to thinly-resourced bar associations, which rely heavily on volunteers and creative programming to fill the knowledge and skill gaps. They strive diligently to implement bridge-the-gap and mentoring programs, as well as to provide continuing legal education credits. A few states now utilize collaborative programs to fill the gaps between law school theory and real practice demands.

On the other hand, CLABA provides orientation and ongoing assistance in a real-life setting to accelerate the apprentices’ learning curve. Clearly defined policies and procedures based on sound principles of client and office management are in place; experienced and trained lawyer-mentors provide real-time assistance; an ongoing evaluation of and feedback on apprentices’ performance allows learning and continuous improvement; and hands-on experience in six inclusive practice areas gives apprentices a broader base of understanding and knowledge with which to serve clients at the Institute and in future professional life.

3.   Mentored Professionalism

Enhancing lawyer professionalism aids the goals of effective lawyer regulation.[62] Competent lawyers exhibiting civility, integrity, ethical conduct, respect for the law, and participation in pro bono and community service are unlikely to be candidates for the disciplinary process. CLABA enhances new lawyer professionalism in two ways. First, CLABA proactively pre-screens its lawyer-mentors for their abilities to be good role models; their counseling of apprentices reflects a commitment to the highest ideals of professionalism. Second, lawyer-mentors evaluate apprentices on their professional conduct as part of the CLABA program. Apprentices who are uncivil, who use dubious strategies which undermine respect for the law, who fail to return client phone calls, or who exhibit other unprofessional conduct are censured and put on probation. These apprentices must improve their behavior or they will suffer expulsion. Successful CLABA apprentices, having demonstrated their commitment to professionalism, join the bar with a high likelihood of serving as good role models for future lawyers.

Conclusion

The legal profession has a unique obligation to serve both private interests and public good, simultaneously acting as client advocates and officers of the court. To serve both constituencies well requires meeting consumer needs. Unfortunately, the profession is not meeting these needs.

In addition to the public’s unmet service needs, the legal profession also has needs in transitioning new attorneys from law school to practice, instilling professionalism in young lawyers, attaining its gate-keeping goals, and overcoming negative public perceptions of the profession. The profession can meet these needs by employing synergistic training methods that provide immediate advantages to all constituencies while nurturing the necessary legal competencies in new lawyers that will best serve the public and the administration of justice.

CLABA proposes an alternative that would benefit the community and the profession simultaneously. CLABA apprentices will contribute to the well-being of society while refining their legal skills, demonstrating required legal competencies, and qualifying for bar entry based on an alternative method of objective, rigorous evaluation. Built-in quality controls safeguard the public interest in receiving quality legal services and in admitting only competent practitioners to the bar. While the finer details are still evolving, the CLABA prototype is adaptable to the needs of most jurisdictions. This Symposium is a welcome first step toward carrying the model to a wider audience.

CLABA is merely a launch pad whose construction has not fallen behind schedule. Although legal consumers have not yet called for “rocket science,” the profession should begin considering more launch pad blueprints for the day that the call comes. If the call does not come, it may be because average consumers feel they can no longer rely on the legal profession to fulfill their needs.