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Coming Soon: A Competence-Based Approach to Law Licensure

By: Jordan Furlong, Canadian Legal Sector Analyst, Forecaster, Speaker, and Consultant

Nobody is happy with the bar exam, and nobody should be. Licensure candidates who borrow and spend heavily and study for years to earn a law degree have to hit the books again, immediately after graduation, to prepare for a much tougher set of legal knowledge tests whose results actually matter.

Scarcely more than two-thirds of all candidates pass the bar exam, with failure rates especially high among repeat test-takers and members of racialized communities. And nobody has ever established a link between bar exam passage and competence to practice law.

Even the organization that sets the bar exam admits the current version needs to be improved, although the NCBE doesn’t intend to introduce a revamped version until 2026. And if you’re not aware of the serious issues with how the bar exam is executed in practice, go to Twitter and search for the hashtag #barpocalypse. Prepare to be appalled.

The whole situation needs improvement, and every day more people find themselves asking, “Is this really the best we can do? Isn’t there any other way to determine if a person is competent to be admitted to practice law?” As a matter of fact, there is — and a recent development in Canada, to which I’ve contributed, might have brought us a little closer to that better way becoming reality in the United States. That better way, competence-based licensure, represents the future of bar admission.

In our current system, a candidate acquires knowledge-based credentials from a third party (a law school and a board of bar examiners), and regulators accept those credentials as a proxy for readiness to practice law. Nobody directly assesses whether the candidate is actually competent to practice law, in terms of their knowledge, skills, attributes, and experiences. As a result, successful candidates enter the profession plagued by impostor syndrome, while unsuccessful candidates are left to wonder why they fell short.

In a competence-based law licensing system, by contrast, the regulator identifies the precise knowledge, skills, attributes, and experiences that a candidate must possess in order to be minimally competent to practice law, and it creates an accessible process through which candidates can prove to the regulator that they possess those competencies.

In a competence-based licensure system, everyone knows what’s required of a new lawyer, and anyone can acquire and demonstrate possession of those attributes. It’s a far more equitable, rational, defensible, and transparent licensing system. And it’s already been proven to work.

The Solicitors’ Regulation Authority of England & Wales was the first regulator to introduce a competence-based licensing system a few years ago. The SRA, following a lengthy and comprehensive period of study and consultation, identified the essential knowledge and the core competencies of a “Day One” solicitor, as well as the level of proficiency required of each competency at the point of professional entry.

These “competence statements” from the professional regulator then formed the basis of two challenging sets of entrance exams (one for knowledge, the other for practice skills). Combined with a two-year apprenticeship requirement, they replaced all previous requirements for entry to the solicitor profession in England and Wales.

Perhaps the most important aspect of the SRA’s switch to a competence-based systems is this: a law degree is no longer required in order to become a lawyer. The SRA reasoned that if a candidate could pass its difficult entrance exams, that candidate clearly possessed the legal knowledge and skills to be a lawyer.

Crucially, the SRA does not care how a candidate acquires that knowledge and skill. Unlike regulators in the United States, it does not require a licensure candidate to acquire two very similar sets of knowledge credentials. It only cares that the candidate can demonstrate to the regulator possession of the core competencies of entry-point practice. The regulator encourages candidates to acquire that ability in any number of ways.

Competence-based licensure has also emerged as part of the bar admission system in parts of Canada over the past few years. Four Canadian provinces use an entirely skills-based bar admission course called the Practice Readiness Education Program (PREP), which is based on an innovative skills-oriented competence framework. And just last year, the province of New Brunswick introduced a detailed competency profile to accompany its new bar admission program.

This was the context in which the Law Society of British Columbia (the regulator of lawyers and legal services in the province of B.C.) asked me last year to suggest reforms to its own lawyer licensing system. The Law Society of B.C. was familiar with my 2020 report and recommendations to the neighboring Law Society of Alberta, “Lawyer Licensing and Competence in Alberta,” which touched on several similar topics. My 82-page report, submitted in May 2022, recommended that B.C. create a competence framework for entry-level fitness to practice law and design a competence-based licensing system based on that framework. In September, the Law Society accepted that recommendation.

The system I recommended for B.C. most closely resembles the SRA’s approach in England & Wales. I suggested that the Law Society engage in extensive consultations with myriad stakeholders in the legal sector — not just lawyers — to determine the essential knowledge, skills, attributes, and experiences that reflect what a member of the public had a right to expect from a lawyer on their first day in practice.

But I also warned against making that competence framework a “wish list” of ideal lawyer attributes, specifying hundreds of different competencies that candidates must acquire and proficiently demonstrate for licensure. “Day One” competence, while it must meet minimum standards, should not be any higher than that; otherwise, you’re just creating (another) barrier to professional entry. In a separate and upcoming post, I will share my suggested “starter kit” of competencies that new lawyers should posses.

Beyond that core recommendation, I made several other non-binding suggestions to the Law Society, including the hot-button idea of dropping the law degree requirement, introducing new instruction in professional responsibility and professional awareness, and making major reforms to the “supervised practice” requirement that all Canadian law licensure candidates must fulfill before bar admission. The Law Society of B.C. has left decisions on all these points to a specially appointed task force.

It will still be several years before the first cohort of lawyers licensed through a competence-based system enters the British Columbia legal profession. Designing a competence framework for lawyers is a major undertaking, all the more challenging given the rapid shifts in our profession and society. Building a licensing process around that framework is another huge job. This is going to take a while.

But it should also change, for the better, the process by which people in B.C. become lawyers. By abandoning an archaic and opaque credentials-based system, and embracing a modern and transparent competence-based system, the Law Society of B.C. will increase public and professional confidence in the ability of lawyers to do their jobs from Day One. It will bring lawyer licensing into line with other professions’ admission systems and go a long way towards defeating “impostor syndrome” among new lawyers.

My sincere hope is that my report dovetails with the existing and burgeoning efforts in other jurisdictions (especially Oregon), so that our profession will one day boast a lawyer licensing system based not on a series of inadequate and exclusionary proxies, but on demonstrated competence to practice law. The public in general, and our clients in particular, deserve at least that much from our profession.

Should you have any question or comments about this post, please feel free to contact me at jordan@law21.ca.

Jordan Furlong is a Canadian Legal Sector Analyst, Forecaster, Speaker, and Consultant.

October 25, 2022 by hami3258

Sarah Beznoska

Professional Identity Formation and First-Generation Law Students

By: Sarah Dylag Beznoska, Assistant Dean for Student and Career Services,
Cleveland-Marshall College of Law, Cleveland State University

It comes as no surprise to those of us who work with law students on first destinations and career paths that when the National Association for Law Placement (NALP) studied national employment statistics for the graduating class of 2020, it found that whether or not you are a first-generation law student impacts your career outcomes in the law.

NALP reported: “Overall, Class of 2020 continuing-generation JD students (graduates who have at least one parent or guardian with a JD degree) and continuing-generation college students (graduates who have at least one parent or guardian with a bachelor’s degree or higher, but whose parents/guardians all lack a JD degree) had a higher employment rate and were more likely to be employed in a bar passage required/anticipated job than their first-generation college student peers.”

The Law Student Survey of Student Engagement (LSSSE) also consistently highlights important disparities related to first-generation law students. From LSSSE, we know that first-generation law students bear more law school debt and face significant stressors related to debt. We know that “the amount of time that first-generation law students [spend] with peers and faculty outside of class [is] significantly less than non-first-generation law students.” LSSSE data has shown that first-generation students also participate in co-curricular opportunities at a lower rate that non-first-generation students, spend more time studying, and spend more time working to support themselves.

This data should be important to everyone in the legal industry, especially as we talk about diversifying our workplaces and our leadership. It is particularly important to me as someone who works in career services at an urban law school that serves a significant population of first-generation college and law students. To provide the best student and career services to our students, we are continually assessing our work through the viewpoint of first-generation students and making adjustments to provide better support.

This assessment can be done for professional identity formation (PIF) too. Understanding and accounting for the unique experiences noted above is critical to developing any comprehensive PIF plan. On the positive side of things, schools can leverage PIF to build belonging for first-generation students. At the same time, being mindful about the time constraints sometimes faced by first-generation students might inform the methods a school chooses for offering PIF opportunities.

First-Generation Students and Law School Culture: Professional Identity to Build Belonging

Belonging matters to law student success, and most especially to first-generation law students. The unique culture of law school and the legal industry can be a challenging adjustment even when someone has lawyers in their family. Without knowing any lawyers or having people already in their network to ask for help, first-generation law students can feel like outsiders from day one. (For some insights on the first-gen experience see: https://abaforlawstudents.com/2021/08/25/first-generation-law-student-challenges/ and https://abaforlawstudents.com/2020/01/01/how-to-thrive-as-a-first-generation-law-student/).

For this reason, I have sometimes been skeptical of the premise of professional identity formation that focuses on students moving from an “outsider” in the profession to an “insider” in the profession. As someone who was a first-generation law student myself (although I was not the first in my family to attend college), I know very personally that not having lawyers in my family or lawyers in my network impacted my law school experience in a negative way. From day one of law school, I internalized deeply that I did not belong and, although my law school trained me well on the doctrinal skills, I never once came to a place there where I felt like an “insider.”

It is because of this personal experience, however, and because of the commitment I have to making sure that first-generation students at the law school where I work never feel this same way, that – as much as I can be skeptical about the terminology of PIF – I think PIF can be leveraged to build more belonging. There are a variety of ways a school might use PIF to increase belonging. For example:

Self-Assessment and Industry-Focused Panels: having students complete self-assessment exercises allows them to identify strengths and values that they bring with them to the profession. Taking it a step further, once schools provide an opportunity for students to identify their strengths and values, schools can offer diverse panels of attorneys to demonstrate the varying skillsets that can make someone successful. Providing students with opportunities to know their own strengths and then to see those things in successful practitioners can help them to feel like there is a place in the law for them and who they are matters.
Mentoring: providing thoughtful mentoring opportunities allows students to feel less alone in their journey through law school. Schools can engage alumni, peers, faculty, and staff in formal and informal mentoring programs with students, giving them a broad set of people to whom they can turn for support. Consider, also, having faculty, staff, or alumni identify themselves to students as first-generation students, so that your first-generation cohort has examples of first-generation success stories.
Student Organizations: schools can support student leaders to create a robust community of student engagement and a space where students can connect with each other and feel less alone. Connecting student organizations to a school’s alumni network can be helpful and assisting student organizations with career-related programs can give students more opportunities to understand the variety of paths in the law.

These three things have worked for us as a starting point to increase belonging at Cleveland-Marshall College of Law. We start at day one when we dedicate a portion of our Orientation to professional identity. This Orientation program covers the essential eligibility requirements for the practice of law in Ohio and the 26 Lawyering Effectiveness Factors. More importantly, it includes diverse panel speakers who reflect on what these things mean in their practice, along with when and where they developed these skills.

We also require incoming law students to complete the Law Fit assessment, and we use those assessments with them in their meetings with career advisors. In addition, together with my team in Student and Career Services, we have built a one-on-one alumni mentor program and a one-on-one peer mentor program for every first-year student who enrolls with us. Later this Fall, we will offer a Storytelling event to our student body, in partnership with our First-Generation Law Student Association, focusing on things like times when we and they have felt imposter syndrome and why one’s personal story matters.

First-Generation Students and Time: Creating Meaningful Space for Students to Reflect

One of the foundational concepts behind PIF is reflective thinking and opportunities for reflective exercises to help students understand their values, the values of the profession, and the competencies required to be a successful lawyer. Reflection, in turn, requires time and space that are carved out to allow specifically for it. Time is a valuable resource for all students, but especially for first-generation law students. Therefore, PIF plans must be mindful of these time constraints.

There are a lot of reasons why first-generation students might not have time for PIF. For example, if they are working significant hours outside of the law school in legal or especially in non-legal jobs to support themselves, if they face family or personal expectations or obligations (especially from family members or personal connections who are unfamiliar with the legal industry), if they are trying to plan the logistics of taking two months off (unpaid and without benefits) after graduation to study for the bar exam, or if they are de-railed by a financial, health, or other crisis without social capital or resources to support them. In the optional space of Student and Career Services, when we support students with challenges like these, there is sometimes precious little time or energy available to ask students to reflect on how a chosen work or academic experience contributes to their professional identity.

Worse, when I see my first-generation students struggling with time, I worry that PIF will feel to them like optional engagement that is only possible for those law students who are supported by deep family resources or who are not struggling with other life priorities. I also worry whether they will trust me if I ask them to add to their already overflowing plates the additional work required by PIF. Notably, I believe these students are frequently already very self-directed learners, but they are people with clear and important demands on their time that often do not leave room for any optional piece of the law school curriculum.

For this reason – to bring all students along in PIF – schools must be creative about how and when to include PIF in the law school experience, and be respectful of the time constraints students might face, depending on their circumstances.

Bring PIF to Students: one option, of course, is to build into the existing curriculum opportunities for reflection and discussions about professional identity. But, if that won’t work for your school/classroom, schools might consider inviting the career services team to stop by before or after classes to provide handouts or resources that are aligned with related career paths. Schools can emphasize the importance of related programming that is happening outside of the classroom and encourage students to make strategic decisions about which to attend. Schools can include in other required spaces – Orientation, graduation-required courses, student leader trainings – information about building lawyering skills. Schools can encourage students to work with academic advisors, staff, or alumni to create a plan that works for them, and schools can help those advisors, staff, and alumni to have the PIF information they need to be impactful.
Create a PIF-focused Course: changing the curriculum to include a new course is another option, and one that may or may not be a fit for a school. For better or worse, however, we know that in a world impacted by COVID, general student engagement in optional parts of the law school experience is significantly decreased. Add to that the time constraints we know our first-generation students face and we simply cannot wait for students to come to us. As I’ve learned from my colleagues in the undergraduate space, we are responsible for finding ways to go to them. One way to go to them is to create a credit-bearing course that will reward students for doing PIF work while creating a meaningful space for first-generation and other time-strapped students to include the work among their other priorities.

At Cleveland-Marshall College of Law, Students and Career Services has seen some movement with bringing PIF to students. For example, my department no longer expects that attendance will be robust at optional career related programs. Instead, we collaborate with student organizations on panel presentations and visit their student organization meetings to connect. We bring handouts and resources to student-run events, instead of requiring them to come to us for the information. We try to model the behavior we are seeking from students by showing up to the programs and panels that they have organized rather than simply demanding they show up at ours. We also leverage our alumni and peer mentor programs to provide resources to students. It is clear to us that peer-to-peer advising among students is at an all-time high, and rather than discourage or limit this connection, we provide information and resources to support it.

Perhaps most importantly, we try to ask students for input on what kinds of activities will help them most when it comes to lawyering skills. Without exception, they prefer activities that require engagement from them, opportunities to become involved in the community through pro bono work, and learning experiences where they connect with others. As a result, we are adjusting our traditional Student and Career Services programming to offer more of these kinds of experiences, and fewer lectures/presentations, while also incorporating reflective coaching questions into our everyday conversations with students.

Conclusion

Supporting first-generation law students to succeed is a critical component of increasing diversity in the legal industry. When PIF is offered thoughtfully and in a way that is mindful of time as a resource, it can be a place where schools can provide that support, not just through efforts focused on belonging, but also efforts focused on financial wellness, building support networks, introductions to professional norms, and academic planning.

If you have any questions or comments about this post, then please feel free to contact me at s.beznoska@csuohio.edu.

Sarah Dylag Beznoska is the Assistant Dean for Student and Career Services at Cleveland-Marshall College of Law at Cleveland State University.

October 13, 2022 by hami3258

Jabeen Adawi

Clinical Pedagogy: Paving the Way for Professional Identity Formation

By: Jabeen Adawi, Clinical Assistant Professor of Law, Director of the Family Law Clinic, University of Pittsburgh School of Law

In response to the American Bar Association (ABA) revised accreditation standard 303(b) requiring schools to provide “substantial opportunities to the students for… (3) the development of a professional identity,” law schools around the country began to remedy a perceived gap in legal education: the formal and intentional development of a cohesive professional identity. Unlike other client-serving professions—such as medicine or social work—law schools are often critiqued as not doing enough to explicitly support the development of a cohesive professional identity for lawyers. Legal education seemed to rely heavily on the existence of the model rules of conduct and one class in legal ethics to ensure that new lawyers understood their fiduciary responsibilities as lawyers. However, all along clinical pedagogy has been equipping clinical programs to move students through identity formation. Below, I’ll explain how at the University of Pittsburgh School of Law, the clinical faculty drew from well-developed tools and teaching approaches to synthesize a clinic-wide foundational orientation for clinic students that directly responds to standard 303(b).

The ABA standard states that professional identity is developed through an “intentional exploration of values, guiding principles, and well-being practices considered foundational to successful legal practice.” In analyzing the new standard, three distinct elements have emerged:

Internalizing a deep responsibility and care orientation to others, especially the client,
Developing ownership of continuous professional development towards excellence at the major competencies that clients, employers, and the legal system need, and
Well-being practices.

The goal of our foundational orientation is to equip students with common skills and perspectives they will refine during their clinical experiences. Since this is our first pre-semester orientation, we are beginning with a half-day program of three sessions followed by a lunch and a small swearing-in ceremony. The skills we focus on meet the three elements of professional identity formation but are not exclusively the only ways we support student growth in our program.

Internalizing Deep Responsibility to Others

The first element promotes the fiduciary responsibilities of lawyers to their clients and society at large. It centers on developing and nurturing a mindset prioritizing a client’s interests above a lawyer’s self-interest. It also orients a law student to the profession’s commitment to pro bono services and developing a justice system that provides equal access and eliminates bias, discrimination, and racism.

To address the first element, our orientation begins with a session on “Understanding Your Responsibility Towards Clients and Society.” Clinic allows students to navigate the demands of real-life legal practice in a setting where clients are facing numerous odds in exercising their legal rights in the current system. However, I find that students need to be grounded in lived experiences of their clients first. For many of my clinical colleagues and me, a poverty simulation is one way to further perspective taking. This simulation will be followed up with discussion questions where students are reflecting upon the choices they were required to make, what circumstances influenced those choices, and what they may have done differently with a changed piece of their identity or additional resource.

The second step in orienting the students towards care of others requires a thoughtful discussion about one’s fiduciary responsibility as counsel. This can begin with a reflective exercise about a student’s own life where they look for experiences being in the care of another or taking care of someone else. These may be life experiences of seeking medical care, customer service, babysitting, caring for a sick relative, being a parent, or a prior career. Reflecting on their own life, a discussion can follow about lawyer’s specific responsibilities and how they relate to the fiduciary responsibility we take on for clients. This discussion will be grounded in the Pennsylvania Rules of Professional Conduct, specifically the preamble. This exercise should set the tone for their identity as lawyers who are in service of others.

I would be remiss if I didn’t acknowledge that a one-time conversation is not sufficient to develop care orientation. After the perspective-taking exercises are introduced in orientation, students will be equipped to revisit these ideas as they move through their clinic work. Typically, clinic students carry lower caseloads than in practice, so it affords them the ability to connect on a deeper level with a client and gain empathy and understanding for a client’s unique lived experience and their actual needs. During the year, individual supervision conversations can revisit the orientation discussions and further reinforce their care towards others.

By the end of the year, students are well equipped to engage in conversations critically assessing the legal system, identifying shortcomings, and proposing solutions. For example, many clinics end the year with a seminar dedicated to reflecting upon challenges their clients faced in accessing the courts, coupled with a brainstorming session on potential solutions.[1] This allows students to connect what may be frustrating realizations about “justice” to tangible solutions, thus beginning to develop their capacity to effectuate systemic change.

Developing Major Competencies

The second element includes making students aware of major competencies that clients, employers, and the legal system need. These competencies include client-centered relational skills, problem-solving, and good judgment. The goal is not only to make students aware of these competencies, and their importance, but also to internalize ownership of their own development in these areas.

The second session in our orientation introduces the students to one core competency: client-centered lawyering. Through a thoughtful exercise called “the Rich Aunt” students begin to consider how personal values drive human decision making and students begin to reframe the role of a lawyer from just an advocate to also that of a client-centered counselor.[2] This exercise has students consider a hypothetical scenario where they are lined up to receive a substantial inheritance but have to evaluate if they want to settle for a lower amount or go to trial and potentially obtain more. The students evaluate what factors drove them to their decision, and then reflect on how personal the decision was. This is then connected to choices a client may make and the value in respecting the client’s ability to decide.

After orientation, this client-centered perspective is reinforced during deeper seminars on counseling and interviewing skills. In future years, we intend to broaden the pre-semester orientation to also cover these topics so the foundation to these core competencies is uniformly reinforced across the clinical program. Finally, during the semester or year, students will deepen these skills within a clinical methodology that is structured to engage a student in learning the why behind their choices, reflecting upon their choices, and drawing strategies to implement in their legal practice. This is often done in a non-directive supervision model that is designed to maximize their opportunities for developing into a self-reflective practitioner.[3] This supervision model is not often available in traditional internship or externship positions.

Establishing Well-Being Practices

The final element of well-being practices goes beyond teaching self-care practices but instead looks at three core needs of the being: “(1) autonomy (to feel in control of one’s own goals and behavior); (2) competence (to feel one has the needed skills, including physical and mental skills to be successful); and (3) relatedness (to experience a sense of belonging or attachment to other people).”[4] Autonomy requires a student to understand their values, be able to express those values, and hence know where they are in control of their goals and behaviors. Hence, developing one’s sense of self as a person becomes foundational to developing the other necessary identities of a lawyer.

The pre-semester orientation will target this element in a third session focused on “maintaining well-being in a live-client setting.” In this session, we will examine the two elements that make up one’s professional quality of life: compassion satisfaction and compassion fatigue. Then, we will introduce a tool called the “Professional Quality of Life Survey” that allows students to self-evaluate the different aspects that affect their quality of life. The Professional Quality of Life Survey is a free tool developed and refined through years of research on what affects a helper’s ability to continue their work. The Center for Victims of Torture owns the tool and provides it free (along with incredible teaching resources) to help anyone working in a helper-oriented profession.

While the results of the survey may be very private, students will not be required to share the results with anyone but can if they choose. I’ve found that the more ways we can provide students a space to discuss boundaries and personal challenges affecting their lawyering, we can assist them in developing skills to navigate issues that are inevitably going to arise in their lives. In private supervision, if a student chooses to share the results of the survey, together we can examine their trends and explore ways to improve their holistic satisfaction. The reality is that no one ever works in a vacuum: our personal lives and experiences come with us to our jobs and influence our work more than we often realize.

Hopefully, like us at Pitt Law, many other schools can utilize the revised ABA standards to bring attention to the strengths of their clinical programs. If anything, there is a wealth of information in clinical pedagogy—it just needs to be tapped.

If you have any questions or comments in response to this post, then please feel free to email at JZA16@pitt.edu.

Jabeen Adawi is Clinical Professor of Law and Director of the Family Law Clinic at the University of Pittsburgh School of Law.

[1] In “Teaching The Clinic Seminar” text by Deborah Epstein, Jane Aiken, and Wallace Mlyniec (three seminal clinical instructors from the Georgetown University Law Center), Chapter 21, “Exploring Justice” offers one thoughtful example of a framework for discussing justice in a clinical seminar. Another example is in Sue Bryant and Jean Koh Peters’ online repository for clinical law teaching materials “Talking about Race”, where they provide tools for facilitating conversations around racial justice.

[2] Deborah Epstein, Jane Aiken, Wallace Mlyniec, Teaching the Clinic Seminar 56 (2014) (describing the “Rich Aunt” exercise).

[3] See David Chavkin, Clinical Methodology in Clinical Legal Education: A Textbook for Law School Clinical Programs 7 (2002); Serge A. Martinez, Why are We Doing This? Cognitive Science and Nondirective Supervision in Clinical Teaching, 26 Kansas Journal of Law & Public Policy 24 (2016) (discussing the non-directive supervision model).

[4] Neil Hamilton, Louis Bilionis, Revised ABA Standards 303(b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 1: Understanding the New Requirements (May 2022).

October 3, 2022 by hami3258

Megan Bess

A Simple Professional Identity Formation Assignment Ideal for Externship and/or Clinical Courses

By: Megan Bess, Director of the Externship Program and Assistant Professor of Law,
University of Illinois Chicago School of Law

Reflective assignments will be a key tool for law schools as they implement ABA Standard 303’s call for professional identity formation. For the past few years, our school’s externship program has used a simple assignment and associated rubric to encourage students to reflect on the skills and competencies they will need as attorneys. While this was designed for use in our externship seminars, it can be easily adapted for any course with a goal of having students reflect on the responsibilities of an attorney and associated skills and competencies.

I originally created this assignment to get students thinking about the skills and competencies identified in the Institute for the Advancement of the American Legal System Foundations for Practice Study, as well as those outlined by Neil Hamilton in his study of law firm competency models. I present students with these materials at the outset to give them broader context for what they might seek to observe and develop during their externship experience. This assignment can be easily adapted for reflection on other skills and competencies using different resources, including, for example, the Shultz-Zedeck Lawyering Effectiveness Factors or the newer IAALS study on skills and competencies, Thinking Like a Client. The goal is to get students to think about the non-legal skills and competencies essential for lawyering and to reflect on how those skills resonate with them. With the traditional law school focus on analytical skills and “thinking like a lawyer,” students are often surprised to learn that many general professional skills and competencies are highly valued by legal employers. The research behind each of the resources listed above is critical to bringing credibility to the skills and proving their value to students. This assignment is a series of simple questions which ask students to reflect on those skills and competencies. The prompts in this assignment seek to have students identify and explain:

Which skills/competencies resonate with them and why;
Their reactions to the skills employers value (those that are both surprising and expected);
Examples of others who demonstrate skills/competencies in professional settings;
A concrete example showing they have mastered at least one skill/competency; and
A skill/competency they need to improve or develop.

As the associated rubric indicates, there are no right or wrong answers to these questions. This can be a little disconcerting for law students, who are often accustomed to questions requiring more definitive responses. The rubric focuses on the quality and depth of the reflection. As we discuss the skills and competencies in our externship classes, I always remind students that when grading these answers, it is easy to distinguish between genuine and honest reflection and those that are simply “going through the motions.”

This type of reflection on lawyering skills and competencies can be especially powerful during an externship or clinical experience. Students form their professional identities by internalizing a profession’s values and responsibility to others—a process which occurs most powerfully when students participate in practice settings and see the values and behaviors of members of the profession.[i] As Tim Floyd and Kendall Kerew observed, it is while participating in this type of experiential learning that students really examine their progress in developing the professional identity of a lawyer.

Please feel free to use any part of this assignment or rubric that is useful to you. Like all my assignments and rubrics, these continue to evolve over time. If you have questions, comments, or ideas for improvement, please reach out to me at mbess@uic.edu.

Megan Bess is the Director of the Externship Program and Assistant Professor of Law at the University of Illinois Chicago School of Law.

Need other ideas for reflective prompts to aid in professional identity formation? Check out Neil Hamilton and Jerry Organ’s article that includes 30 questions designed to aid in professional identity formation.

[i] See Yvonne Steinert, Educational Theory and Strategies to Support Professionalism & Professional Identity Formation, in Teaching Medical Professionalism, Richard Cruess et al., Teaching Medical Professionalism 72 (Richard Cruess et al. eds. (2d ed. 2016)); Ann Colby & William M. Sullivan, Formation of Professionalism and Purpose: Perspectives from the Preparation for the Professions Program, 5 U. St. Thomas L.J. 404, 420-21 (2008).

September 30, 2022 by hami3258

Louis Bilionis, Neil Hamilton

Latest Article from Bilionis and Hamilton on ABA Revisions of 303(b) and (c) Published by NALP’s Professional Development Quarterly

NALP just published the third and final installment of Louis Bilionis and Neil Hamilton’s three-part series on the Standard 303 revisions. Part 1 and Part 2 appeared in the May and June 2022 editions of NALP’s PDQ, respectively.

The last article in the series, which is titled “Revised ABA Standards 303 (b) and (c) and the Formation of a Lawyer’s Professional Identity, Part 3: Cross-Cultural Competency, Equal Access, and the Elimination of Bias, Discrimination, and Racism,” can be read here.

September 28, 2022 by hami3258

Karen Tokarz

Mandatory 1L Negotiation Class and Upper-Class Dispute Resolution Courses Address Professional Identity, Bias, and Cross-Cultural Competency

By: Karen Tokarz, Charles Nagel Professor of Public Interest Law & Policy, Director of the Negotiation & Dispute Resolution Programs, and Director of the Civil Rights & Mediation Clinic, Washington University School of Law

Washington University Law School is striving to address the revised ABA Standards of 303(b) and 303(c) in multiple ways. The law school utilizes a short course on Negotiation, which we have required for 1Ls for over a decade. It is offered each year in August and January. As set forth in the syllabus, one of the four days focuses on professional identity, bias, and cross-cultural competency. This course offers a unique way of introducing 1L students to these issues via education, experiential learning, negotiation partner feedback, and self-reflection.

In addition, all of our upper-class dispute resolution courses explicitly address professional identity, bias, and cross-cultural competency, especially Cross-Cultural Dispute Resolution, which is offered both semesters.

Below are links to the syllabi of the Negotiation course and Cross-Cultural Dispute Resolution, followed by the text of each syllabi.

1L Negotiation Class Syllabus

Cross-Cultural Dispute Resolution Syllabus

Washington University School of Law Required 1L Negotiation Course (1cr.)
Class Schedule, Objectives, Learning Outcomes, and Assignments
All times are approximate

Course Objectives/Learning Outcomes:

Negotiation is the most commonly used form of legal dispute resolution in the United States and around the world. This required course is designed to introduce students to the basics of negotiation through reading, discussion, simulation exercises, and videos. The course focuses on negotiation theory, negotiation skills, lawyer (agent)/client (principal) dynamics, negotiating in teams, and negotiation ethics.

The ability to participate successfully in legal negotiations rests on a combination of five core skills that students will begin to develop in this course: 1) theoretical understanding; 2) interpersonal and intrapersonal awareness; 3) planning; 4) drafting; and 5) reflection. This course provides students with a set of conceptual frameworks and practice experiences that will enhance understanding and skill level in these areas, from the various perspectives of negotiators, advocates, and clients in negotiations.

This introductory course lays the foundation for learning in upper-level negotiation and dispute resolution courses, as well as doctrinal courses. The course introduces issues of leadership, professional identity, bias, cross-cultural competency and cross-cultural humility. The course also helps prepare students for negotiation and dispute resolution issues soon to be added to the multi-state bar exam.

Course Requirements:

Attendance will be taken at the beginning of each class Because this is a short, one-credit class, anyone who is not present for all four days will not earn credit for the class and will be required to retake it at another time.
There is no final examination for this course, but there is required reading and four required short Students may discuss the assignments with each other but must draft the assignments individually. Students are urged to use their own words in response to the questions. Students are not required to footnote references to the assigned books, other than an initial reference, unless using direct quotations. Students must submit each of their four papers via Canvas before the beginning of each class and receive a passing mark on each paper to pass the course. Students who fail to submit passing papers before the beginning of each class will not earn credit for the course and will be required to retake it at another time.

In addition to the four required papers, there are other short assignments, including a Negotiation Self-Analysis & Partner Feedback Form following each Students must submit passing papers related to the negotiations by the conclusion of each class to pass the course.

ABA Standard 310:

Texts:

Students must read Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (any edition) before beginning the course. Assigned readings in addition to Getting to Yes will be available on the course Canvas page. Students are strongly encouraged to read the additional readings before beginning the course. Each day’s module on Canvas will include assigned readings and relevant handouts and links.

Tuesday August 23: Negotiation Theories, Strategies, and Styles

Class Schedule:

1:00-2:00         Introduction to the Course and Overview of Day
2:00-2:35         First Negotiation Exercise: The Gallery
2:35-2:45         Share Reflections with Other Side
2:45-2:55         Break
2:55-3:30         Analysis of First Exercise
3:30-4:30         Discussion of Getting to Yes and Theories of Negotiation

Assignment: Please read the entirety of Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (any edition). Please come to class prepared to discuss the reading and to pose two comments or questions.

To be eligible for credit for the course, students must submit before the beginning of class via Canvas a Pre-Negotiation Course Profile, along with a written memo of minimum four (4) pages, maximum five (5) pages, that addresses the questions below. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:

What are the downsides of bargaining solely over positions in a negotiation? Why and how could one shift the focus from positions to underlying interests in a negotiation?
Compare distributive bargaining to problem-solving negotiation. Can lawyers change adversarial bargaining to problem-solving in disputes and deals without risking exploitation? What comparative benefits do you think lawyers bring to negotiations?
Identify various kinds of interpersonal and intrapersonal people problems that might occur in a negotiation. Why and how could one separate people from the problem in a negotiation? Why and how could one invent and use options for mutual gain in a negotiation? What are possible obstacles to inventing and using these options?
Why and how could one develop and use objective criteria in a negotiation? Why and how could one develop and use their and the other side’s BATNA?
What is the definition of a successful negotiation?
What do you see as the biggest pro and the biggest con of the approach suggested in Getting to Yes.

Wednesday, August 24: Lawyer (Agent)/Client (Principal) Relationships, Professional Identity, Confidentiality, Negotiation Ethics

Class Schedule:

1:00-2:10         Discussion of Readings and Overview of Day
2:10-2:30         Prepare for Second Negotiation Exercise (with same party)
2:35-2:45         Break
2:45-3:30         Second Negotiation Exercise: Client Interview/Retainer Agreement
3:30-3:40         Share Reflections with Other Side
3:40-4:30         Analysis of Second Exercise

Assignment: Please read the Model Rules of Professional Conduct (focus on the Preamble and Rules 1, 4, and 8); read pp. 95-138 in Art Hinshaw & Jess K. Albert, Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics; and read Beyond Words (and complete the short listening test at the end of that article).

Please come to class prepared to discuss the readings and to pose two comments or questions. To be eligible for credit for the course, students must submit before the beginning of class via Canvas a completed listening test (located at the end of the Beyond Words article), plus a written memo of minimum three (3) pages, maximum four (4) pages, that addresses the below questions. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:

What are potential professional and ethical dilemmas for lawyers (agents) when engaged in negotiations on behalf of clients (principals)?
Why do you think lawyers violate rules such as Model Rules 1, 4, or 8?
Can lawyers and/or clients lie in negotiations? What are the risks, rewards?
What is the role of confidentiality in legal negotiations?
What does it mean for a lawyer to listen beyond the words? What does it mean to lawyer “with” your client, rather than “for” your client? What is client-centered lawyering?

Thursday, August 25: Bias, Cultural Competence, Cultural Humility

Class Schedule:

1:00-1:40         Discussion of Readings and Overview of Day
1:40-2:00         Prepare for Third Negotiation Exercise (with partner)
2:00-2:40       Third Negotiation Exercise: Sally Soprano
2:40-2:50       Share Reflections
2:50-3:00        Break
3:00-4:00       Analysis of Third Exercise
4:00-4:30         Joint Planning for Fourth Exercise (with same party)

Assignment: Please read Sue Bryant and Jean Koh Peters, Five Habits for Cross-Cultural Lawyering.

Please come to class prepared to discuss the readings and to pose two comments or questions. To be eligible for credit for the course, students must submit before the beginning of class via Canvas a written memo of minimum two (2) pages, maximum three (3) pages, that addresses the below questions. Please use 12 pt. Times New Roman font, 1.5 spacing. In your memo, please answer the following questions:

In what ways might bias and culture influence lawyering with clients and others, and what potential issues might arise for you in client interactions and negotiations?
What are your biggest insights/take-a-ways as to each of the five habits for cross-cultural lawyering that you might use to help identify your biases and cultural norms, and those of your clients and others, to enhance your communications and negotiations?

Friday, August 26: The Art of Persuasion

Class Schedule:

1:00-1:40         Discussion of Video and Overview of Day
1:40-1:50 Prepare for Fourth Exercise (with partner)
1:50-3:00 Fourth Exercise: Multi-Party Negotiation
3:00-3:10 Share Reflections
3:10-3:20     Break
3:20-4:30    Analysis of Fourth Exercise, Concluding Lecture, Next Steps to Improve as a Negotiator

Assignment: Please watch the first 17 minutes of Mr. Rogers and the Power of Persuasion , http://www.youtube.com/watch?y=_DGdDQrXy5U (link also available on Canvas), and read Carmine Gallo, The Art of Persuasion Hasn’t Changed in 2,000 Years, available at www.carminegallo.com/the-art-of-persuasion-hasnt-changed-in-2000-years/ Please come to class prepared to discuss the video and reading, and to pose two comments or questions as to how the art of persuasion is relevant to negotiations and dispute resolution.

To be eligible for credit for the course, students must submit before the beginning of class via Canvas a written negotiation plan of minimum two (2) pages, maximum three (3) pages. Please use 12 pt. Times New Roman font, 1.5 spacing. In your negotiation plan, please include four columns, one each for you and your partner and one each for the other side and her/his partner. Identify what you understand/guesstimate each side wants (substantive and relationship goals/ positions), why (underlying interests), how (optimal negotiation styles), cultural/ethical issues, options for achieving mutual gains as to substantive and relationship goals, information you want to obtain/retain, aspiration points, resistance points (bottom lines), and BATNAs.

Cross-Cultural Dispute Resolution Fall, 2022
Mondays, 9:00 AM – 10:52 AM Anheuser-Busch Hall, Room

Prof. Juan Del Valle juandelvalle@wustl.edu

SYLLABUS

CREDITS: 3.0

COURSE DESCRIPTION

Disputes and dispute resolution frequently involve cross-cultural conflict. Effective dispute resolution methods involve additional elements than those used in intra-culture adjudicatory and amicable dispute resolution processes. Through a harmonic integration of legal, sociological, psychological, and neurological concepts and findings, this course is designed to equip students with valuable tools that will allow them to choose suitable dispute resolution methods and strategies for resolving cross-cultural controversies, and managing legal conflicts involving individuals from diverse cultures and backgrounds, including but not limited to gender, religion, national origin, and race. The course is designed to enhance negotiation and dispute resolution skills by increasing cultural intelligence (CQ) for legal professionals who will be involved in diverse conflict resolution scenarios, whether as attorneys, negotiators, facilitators, or adjudicators. The course includes assigned readings, drafting, and simulations related to cross-cultural dispute resolution.

ABA STANDARD COMPLIANCE

ABA Standard 310 requires “not less than one hour of classroom or direct faculty instruction and two hours of out-of-class student work per week or the equivalent amount of work over a different amount of time” for each credit hour awarded. This course has been designed to meet this requirement, through the inclusion of mandatory readings, free research and assignments that will be explained during the course and a final essay, expecting each student to spend at least two hours of out-of-class time for each one hour of in-class-time per credit hour.

COURSE OBJECTIVES AND LEARNING OUTCOMES

By the end of the semester, students will be able to effectively:

Recognize and utilize techniques to communicate and collaborate with cross-cultural stakeholders about their cases, the law, and policy in negotiations and mediation processes;
Recognize and understand the existence of biases and their impact in information-collecting processes;
Acknowledge ways to control biases and other informational barriers sourced in the adaptive unconscious;
Recognize and understand the impact of context and the distribution of power in negotiations and mediations, including culture, gender, race, national origin, religion;

Identify and understand the underlying interests of all of the stakeholders in dispute resolution processes where cultural difference may add challenges to the collection of information;
Recognize and understand opportunities for and barriers for stakeholders to create and claim value on a sustainable basis in dispute resolution processes.
Recognize and understand the impact of intrapersonal and interpersonal styles, and persuasion techniques in negotiations and mediations involving cross-cultural interactions;
Identify and utilize necessary oral and written advocacy skills with and on behalf of stake- holders in negotiations and mediations involving cross-cultural interactions;
Enhance communication, relationship development, trust building, and persuasion skills in negotiations and mediations involving cross-cultural interactions;
Enhance collaboration skills and maximize effectiveness working as a team member to advance the interests of the stakeholders and the process in negotiations and mediations involving cross-cultural interactions;

ASSESSMENT AND GRADING

Students are expected to prepare for every class. Participation in class discussions and class exercises, including a final project will be highly graded and will be assigned twenty-five percent (25%) of the final grade. A final, anonymous essay of approximately 6 pages will have a seventy five percent (75%) weight on the grade.

READINGS AND EXERCISES

Students must read and prepare for a discussion of the assigned readings prior to each session and come to class prepared to actively participate in class discussions. Students are encouraged to read any additional material they find useful to complement lectures. The instructors may suggest complementary readings during the course.

ATTENDANCE POLICY

This is a participatory course. Its success depends on everyone’s active participation and preparation for the exercises that are assigned. Students are allowed to miss 2 classes without that absence negatively impacting their grade; provided that, (i) I am notified in advance of your expected absence (preferably at the previous class) and (ii) any materials you are required to turn in are delivered to me before the class you will miss. Failure to provide advanced notice of an absence, turn in any assignments prior to class or missing more than two classes (absent extreme circumstances approved by Elizabeth Walsh, Associate Dean for Student Services) will count as an unexcused absence. We can be notified about expected absences in class or by email. Unexcused absences will negatively impact both the class participation and performance portions of your grade.

SIMULATION EXERCISES & CASE STUDIES

We will have 2-4 exercises in the course of the semester.

For the simulations to be successful and allow you to develop your skills, it is important that they are approached as seriously as you would approach a real-life negotiation. It is also important that you maintain your assigned role, try to maximize the outcome of the party you are assigned and fully prepare for each simulation. Most of all, I want you to enjoy every single session of this course.

LAPTOP POLICY

Laptops may be used during class discussions to take notes and used during simulations if you are instructed to do so. At no time may laptops be used to surf the web or communicate about subjects not related to the class. Cell phones shall NOT be used at any time while class is in session to make calls, take in-coming calls, or text, except during class breaks. Use of laptops, cell phones, or other electronic devices during class at prohibited times is extremely distracting and reflects a lack of respect to your classmates and me and will result in a failing participation grade for that class session.

CLASS PARTICIPATION

Your final grade will be a combination of the following:
Weekly Class Attendance, Class Participation, and Final Project (25%)

Weekly Participation:

Your weekly class participation throughout the semester, as demonstrated through preparation and discussion of the assigned reading materials, active engagement in the simulations, and negotiation planning memos will be worth 25% of your grade.

Final Essay:

75% of your grade.

*Required Course Textbooks

Fisher, R., Ury, W. (2011). Getting to Yes: Reaching Agreements Without Giving In. New York, NY: Penguin Books. ISBN-10: 0143118757; ISBN-13: 978-0143118756.

Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group. ISBN-10: 9781473684829; ISBN-13: 978-1473684829.

Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Continuum. ISBN-10: 1472922972; ISBN-13: 978-1472922977.

*Required Additional Readings

Cairns, D. (2005). Mediating International Commercial Disputes: Differences in U.S. and Euro- pean Approaches. Dispute Resolution Journal. Aug-Oct, 2005; 60, 3. Available at http://www.nysba.org/workarea/DownloadAsset.aspx?id=67718

Pair, Lara M. (2002). Cross-Cultural Arbitration: Do the Differences Between Cultures Still In- fluence International Commercial Arbitration despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Available at https://nsuworks.nova.edu/il- sajournal/vol9/iss1/2/

*Suggested Complementary Readings

Groves, K., Feyerherm, A., Minhua, G. (2015). Examining Cultural Intelligence and Cross-Cul- tural Negotiation Effectiveness. Journal of Management Education, Vol. 39(2) 209-243. Available at www.sagepub.com.

Class Schedule and Assigned Mandatory Readings

Week 1: Basics of Legal Negotiation and Dispute Resolution

Readings: Fisher, R., Ury, W. (2011) Getting to Yes. Chapters I – IV.

Week 2: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Existentialism, Psychological Perceptions in Conflicts, and the Impact of Emotions

Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 1, 2, 3.

Week 3: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Self-Esteem, Values and Polarities, Interpersonal Relationships, and Psychological Impact of Listening.

Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 4, 5, 6.

Week 4: The Psychology of Conflict in Legal Dispute Resolution: Cross-Cultural Perspectives on Assumptions and Biases, Amicable Dispute Resolution, Differing Models of Negotiations and Mediations, Empathy, and Neurology of Conflict Resolution.

Readings: Randolph, P. (2016). The Psychology of Conflict: Mediating in a Diverse World. Bloomsbury Publishing Plc. Chapters 7, 8, 9.

Week 5: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Language Differences

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 1.

Week 6: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Cultural Conditioning

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 2.

Week 7, October 10: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Culture Categorization, Culture Relativism v. Constructivism, and Integration

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 3.

In-Class Activity Links: Video: Richard Evanoff. (2016). How can People from Different Cultures get Along with Each Other? TedX on Youtube.com. Link: https://www.youtube.com/watch?v=osZr7DLxs8A

Week 8: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Time in Cross-Cultural Negotiations

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 4.

Week 9: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Power- less Communication, Power of Paraphrasing and Reframing, and Communication Gaps

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 5.

Week 10: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Motivation and Trust-Building, and the Low-Trust Syndrome

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 9.

Week 11: Overcoming Cross-Cultural Barriers in Legal Dispute Resolution: Meeting of the Minds, Relationship-Building, Giving-In as a Strategy to Overcome Low Trust and Ot- her Cross-Cultural Barriers

Readings: Lewis, R. (2018). When Cultures Collide: Leading Across Cultures. Boston, MA: Hachette Book Group, Chapter 10.

In-Class Activity Links: Link: Rathi, A. (2015). This Simple Negotiation Tactic Brought 195 Countries to Consensus. Retrieved from https://qz.com/572623/this-simple-negotiation-tactic- brought-195-countries-to-consensus-in-the-paris-climate-talks/.

Week 12: Gender, Race, National Origin, and Religion in Dispute Resolution

Preparation for class: Please research on recent studies regarding the influence of race, gender, and religion in dispute resolution processes. Please be prepared to share your findings in class.

Readings: Pair, Lara M. (2002). Cross-Cultural Arbitration: Do the Differences between Cultures Still Influence International Commercial Arbitration Despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Cairns, D. (2005).

Week 13: Cross-Cultural Views of Commercial Dispute Resolution
Readings: Mediating International Commercial Disputes: Differences in U.S. and European Approaches. Dispute Resolution Journal. Aug-Oct 2005; 60, 3.

Cross-Cultural Arbitration: Do the Differences between Cultures Still Influence International Commercial Arbitration Despite Harmonization? ILSA Journal of International and Comparative Law. Vol 9, Issue 1, Article 2. Cairns, D. (2005).

Week 14: Giving, transparency, and building trust in Cross-cultural dispute resolution processes.

In-class activity: Final project presentation and discussion.

If you have any questions or comments about the courses, then please feel free to email me at tokarz@wustl.edu.

Karen Tokarz is the Charles Nagel Professor of Public Interest Law & Policy, Director of the Negotiation & Dispute Resolution Programs, and Director of the Civil Rights & Mediation Clinic at Washington University School of Law in St. Louis.

September 19, 2022 by hami3258

Megan Bess

Transitions, Professional Identity Formation, and the Significance of Summer after 1L Year

By: Megan Bess, Director of the Externship Program and Assistant Professor of Law,
University of Illinois Chicago School of Law

Law students experience significant transitions during their legal education that influence their ability to think and act as an attorney. These transitions are marked by intense learning periods in which students develop a new understanding of their profession. So why are transitions important to professional identity formation? Research from other professions, most notably the medical field, shows us that transitions are key to professional identity development and are therefore important milestones for targeting professional identity formation efforts. These transitions represent opportunities for law schools to support students and further their efforts to comply with the new ABA requirement to integrate professional identity formation into legal education.

While there is generally a dearth of studies regarding the major transitions that students experience on their path to becoming attorneys, Professor Neil Hamilton’s research provides some helpful insight into important transitions during 1L year. Hamilton surveyed students at his own law school and found that summer employment (paid or unpaid) after the first year of law school had the biggest impact on their thinking and acting like a lawyer. Thus, summer employment, particularly after the first year of law school, represents an important transition for law students. This is not entirely surprising, as studies of other professions tell us that reactions to real-world settings often represent critical turning points in developing professional identity.

The challenge is for law schools to leverage tools for professional identity formation to help students understand and capitalize on these important real-world legal experiences. As law schools plan for compliance with ABA Standard 303’s new provision requiring “substantial opportunities” for development of professional identity, they would be wise to consider the importance of major transitions to this process. As Professor Louis Bilionis makes clear, experiences important to professional identity, such as summer employment, take place while a student is in law school but fall outside traditional law school oversight. To fully support professional identity formation during summer employment, legal educators must take a broader view of their responsibilities for all formative experiences during law school.

The good news is that legal education is already equipped with pedagogical tools to support student professional identity during transitions that take place while they are working. Externship pedagogy is designed to support the professional identity formation that takes place during real lawyering work. Common externship tools, such as orientation/training, goal setting, reflection, and feedback, aid in the formation of professional identity. Externship programs differ in structure and can be adapted to the needs of individual schools and curricula. Under ABA Standard 304, every externship program must provide students with opportunities to perform legal work, engage in self-evaluation, receive feedback, and be guided in reflection on the experience. This means that no matter the structure of a school’s externship program, many recommended practices for professional identity formation are already in place.

Schools can leverage their existing externship programs to provide professional identity formation opportunities for all students during the significant transition that occurs while working during the summer after 1L year. Each law school can customize a summer support program with a structure and pedagogy to meet their school’s needs. Ideally, these programs would feature some common effective pedagogical tools. For example, providing an orientation or training program before students begin their summer positions could help frame their experiences and facilitate goal setting that takes into account their own strengths and weaknesses. Reflection is critical for professional identity formation—ideally students would have opportunities to reflect periodically on their experiences and then summarily at summer’s conclusion. Students also need feedback and would greatly benefit from school support in interpreting that feedback while engaging in self-reflection on their performance.

Some notable challenges to this approach include whether to offer academic credit, incentivizing student participation, enlisting faculty and staff support, and engaging employers. In a forthcoming article for the Clinical Law Review, I explore these challenges and offer additional suggestions for such a program following 1L year. In this piece, I propose creating a credit-earning course offered during the summer after 1L year to incentivize participation and underscore the seriousness of the professional identity formation process. There are, however, alternatives to this approach and any efforts that schools can take to support students during important transitions such as the summer after 1L year can reap important benefits.

Please contact me at mbess@uic.edu with comments or questions.

Megan Bess is the Director of the Externship Program and Assistant Professor of Law at the University of Illinois Chicago School of Law.

September 16, 2022 by hami3258

Aric Short

Crowdsourcing Implementation Plans, Tools, and Techniques for Standard 303(b)(3)

By: Aric Short, Professor of Law and Director of the Professionalism & Leadership Program, Texas A&M University School of Law

As law schools welcome students back to campus this fall, a revised accreditation standard goes into force. Under the new Standard 303(b)(3), each law school “shall provide substantial opportunities to students for the development of a professional identity.” As explained in Interpretation 303-5, “[p]rofessional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society.” Exploration of this topic should include the “values, guiding principles, and well-being practices considered foundational to successful legal practice.” Importantly, the ABA recognizes that professional identity formation is a process that takes time, experience, and reflection. As a result, students “should have frequent opportunities for such development each year of law school and in a variety of courses and co-curricular and professional development activities” (emphasis provided).

The ABA has taken a sequenced approach to implementation of this new professional identity formation requirement. In the fall of 2022, all law schools are expected to have initial plans in place to implement Standard 303. By the fall of 2023, schools are required to begin implementing their plans.

Figuring out exactly how to comply with this new ABA standard can be challenging. Embedded in that challenge are various procedural and structural questions. What process will your school use to evaluate existing professional identity formation efforts? Who will be in charge of ensuring compliance? Which law school stakeholders will be involved in that process? Will professional identity formation be introduced during Orientation? If so, how and by whom? Will 1L students take a course on professional identity formation or be required to attend a series of workshops? Or will similar themes be introduced in classes across the 1L curriculum? Similarly, how will each school continue to expose students to professional identity formation themes throughout the remainder of their law school experience—including in experiential courses and in interactions with offices supporting career services and academic support? Beyond these and other mechanical issues, there exist significant questions about content. What exactly does professional identity formation mean to your institution? What are the core themes you want to emphasize and reinforce with your students? And how will those themes be staggered and built upon so that students develop a deeper sense of their own professional identities as they move through law school?

To assist law schools as they work through these and other issues related to Standard 303(b)(3) implementation, the Holloran Center is announcing two new crowdsourced and collaborative resources. You and your school are invited to contribute to these resources and to learn new ideas and approaches to professional identity formation from colleagues across the country. While these resources are related, they have different purposes:

Resource #1: A repository of law school implementation plans for Standard 303(b)(3). This database, in Google Sheets, is intended to capture law schools’ evolving plans to implement Standard 303(b)(3). Each school is requested to share a narrative describing its Standard 303(b)(3) plan, as well as whether that plan is currently in draft or approved form. Schools are encouraged to provide a full description of their plans to help share creative and effective ways to implement this new Standard. This Google Sheet also asks for contact information for the person at each school responsible for Standard 303(b)(3) implementation, as well as anyone else on your staff or faculty who will be taking the lead in any specific professional identity formation efforts (for example, related to academic support, career services, clinics, externships, legal writing, doctrinal courses, etc.). Each school is also encouraged to provide links to any related web-based materials and to submit any other supporting documents through this Dropbox. While anyone with the link to this Google Sheet can review the submitted plans and contact information details, this document should be completed by the person at each school responsible for compliance with Standard 303(b)(3).

Resource #2: A clearinghouse of specific ideas, techniques, strategies, and tools related to professional identity formation. We know that many of you are already doing impactful work in this area, regardless of your title and the capacity in which you engage with students. This database, also in Google Sheets, provides a means to share those great efforts and learn new ideas from other law school faculty and staff across the country. Anyone who is engaged in professional identity formation efforts—big or small—is encouraged to share their ideas, as well as their contact information. This database is organized broadly in tabs across the bottom by the general area of student engagement, including academic support, career services, clinical / experiential classes, doctrinal classes, lawyering skills classes, student organizations, and professional formation courses. Within each tab, contributors are asked to indicate the primary professional identity focus of the exercise, program, or reflection and to include additional information, including the primary contact person for that contribution. We hope this format makes it easy for you to search for techniques and strategies that might be useful for you. In addition to providing a description of the professional identity work you are doing, you are encouraged to submit to this Dropbox any supporting documents that might be helpful for others, including syllabi, course plans, teaching notes, assessment tools, and grading rubrics.

A note on scope: As described above, these two new crowdsourced resources are focused primarily on Standard 303(b)(3), which relates to professional identity formation. The ABA has also implemented a new Standard 303(c), which requires law schools to “provide education to law students on bias, cross-cultural competency, and racism (1) at the start of the program of legal education; and (2) at least once before graduation.” Most of us working in this general space understand that bias, cross-cultural competency, and racism are foundational topics within professional identity formation. As a result, you and your school should feel free to share in the databases above specific implementation plans and strategies related to Standard 303(c). However, our primary focus is Standard 303(b)(3). We also encourage you to visit Buffalo School of Law’s Website on ABA Standard 303(c) for more specific information about efforts across the country to implement Standard 303(c).

We wish you and your law schools the best of luck as you create institutional plans and design specific techniques for implementation. Hopefully the two databases announced above will help you come up with impactful and effective ways to engage in this important work. We encourage you to share your ideas, to borrow from others, and to connect with other faculty and staff exploring professional identity formation.

Aric Short, Professor of Law and Director of the Professionalism & Leadership Program, Texas A&M University School of Law

September 6, 2022 by hami3258

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