More on Paid Clinical Externships

July 17th, 2015 / By Deborah J. Merritt

I’ve posted before about my support for a proposed change in Interpretation 305-2 of the ABA’s accreditation standards for law schools. The proposal would allow law schools to offer externship credit for paid positions. Today I sent an admittedly tardy letter to the Council, expressing the reasons for that support. For those who are interested, I reproduce the text below:

Dear Council Members:

I apologize for this late submission in response to your request for comments on the proposed change to Interpretation 305-2. I strongly support the proposed change, which would allow law schools to choose whether to offer externships with paid employers.

I have been a law professor for thirty years, teaching doctrinal, legal writing, and clinical courses. I also have a research interest in legal education and have published several articles in that field. My current interest lies in learning how lawyers develop professional expertise and in designing educational programs that will promote that development.

From my personal experience, as well as reviews of the cognitive science literature, I have no doubt that externships are a key feature of this development. Externships alone are not sufficient: In-house clinics provide pedagogic advantages (such as the opportunity for close mentoring and regular reflection) that externships are less likely to offer. A program of in-house clinics complemented by externships, simulations, and other classroom experiences, however, can offer students an excellent foundation in professional expertise.

When designing an educationally effective externship, the employer’s status (for-profit, non-profit, government) and student’s financial arrangement (paid or unpaid) are not relevant. This is because the educational institution controls the externship requirements. If an employer offering a paid externship balks at the school’s educational requirements, the school can (and should) refuse to include that employer in its program.

The key to educationally sound externships is close control by the academic institution. I suspect that some law schools (like other academic institutions) do not devote as much attention to externships as they should. The greater the school’s collaboration with the employer, the better the externship experience will be. This problem, however, applies to both paid and unpaid externships. The educational potential of externships does not depend upon the amount of pay; it depends upon the school’s willingness to supervise the externship closely—-and to reject employers that do not create suitable learning experiences.

Employers who pay law students may decide that they don’t want to participate in externship programs; they may find compliance with the program’s requirements and paperwork too onerous. This is not a reason to reject paid externships; it is an assurance that they will work properly. If an employer is willing to pay a student and comply with the pedagogic requirements of a good externship program, we should rejoice: This is an employer eager to satisfy the profession’s obligation to mentor new members.

This brings me to the major reason I support the proposal: Permission of paid externships will allow innovative partnerships between law schools and the practicing bar. As members of a profession, lawyers have a duty to educate new colleagues. Our Rules of Professional Conduct, sadly, do not explicitly recognize this duty. The obligation, however, lies at the heart of what it means to be a profession. See, e.g., Howard Gardner & Lee S. Shulman, The Professions in America Today: Crucial But Fragile, DAEDALUS, Summer 2005, at 13.

Our profession lags behind others in developing models that allow practitioners to fulfill their educational duty while still earning a profit and paying their junior members. Law school clinics and externship supervisors possess a wealth of experience that could help practitioners achieve those goals. Working together to supervise paid externships would be an excellent way to transfer these models, improve them, and serve clients.

I deliberately close by stressing clients. Many of our debates about educational practices focus on the interests of law schools, law students, and employers. For members of a profession, however, client needs are supreme. We know that an extraordinary number of ordinary Americans lack affordable legal services. We also know that businesses are increasingly turning to non-JDs to fill their legal needs as compliance officers, human resources directors, and other staff. If we want to create a world in which individuals and businesses benefit from the insights of law graduates, then we have to design educational models in which new lawyers become professionals while they and their mentors make a living.

Thank you for your attention. Please let me know if I can provide any further information.

Deborah J. Merritt
John Deaver Drinko/Baker & Hostetler Chair in Law
Moritz College of Law, The Ohio State University