Hippocrates and the Law

June 15th, 2013 / By Deborah J. Merritt

As readers of this blog know, I advocate many changes in legal education. Law schools, however, are not my only source of concern; practitioners and bar associations have also neglected their obligations to new lawyers and under-served clients. On that score, I’m pretty fed up with state bar reports that deplore a loss of “professionalism” and then burden aspiring lawyers with mandatory skills training, apprenticeships, and pro bono service. When are senior lawyers going to take responsibility for unmet legal needs and untrained junior lawyers?

I’ll leave unmet legal needs for another post; this one is about training. Car salesmen have no duty to train other salesmen. Restaurant owners have no obligation to tutor the next generation of restauranteurs. In businesses governed by the free market, newcomers must find (or purchase) education where they can. Professions, however, are different. Because we claim the right to govern ourselves, we assume a responsibility to educate our junior colleagues. That obligation is part of what distinguishes us as professionals.

Hippocrates, a father of professionalism as well as medicine, understood this. The Hippocratic Oath binds a doctor to “impart a knowledge of the art to my own sons, and those of my teachers, and to students bound by this contract and having sworn this Oath to the law of medicine . . . .” A more modern version, recited by many medical school graduates, states: “I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.”

This intergenerational commitment lies at the heart of professionalism. Unfortunately, however, I don’t hear that commitment from many lawyers today. Instead, I hear that “clients will no longer pay for training.” Clients ultimately pay for everything we do, including the huge sums we spend on legal education, but that’s not the point. The lawyers who blame miserly clients are really saying “I won’t realize as much profit if I spend time training new lawyers, so I’m not going to do it–unless, maybe, the lawyers have to work free for me.” That’s a repudiation of their professional duties.

Look, for example, at this week’s report from the California Bar’s Task Force on Admissions Regulation Reform. The report opens with noble language recognizing that the training of new lawyers “must involve a collaborative effort in which the law school community, practicing lawyers, and the Bar each have a role.” (p. 2) Similarly, the report acknowledges that educating new lawyers “must be a shared endeavor in which burdens are shared and responsibility is shared as well.” (id.)

What, however, will make the practicing bar shoulder these burdens–a task that professionalism already mandates? The report rather artfully squirms around this issue. It notes first that “clients no longer want to pay for that training and are refusing to do so.” (p. 5) “Changes in the economics of the profession,” therefore, “are making it more and more difficult for new lawyers to find the training, hands-on guidance and mentoring that is necessary for a successful transition into practice.” (id.) Senior lawyers, in other words, aren’t willing to compromise profits in order to offer the same levels of training that they received as newcomers to the profession.

Faced with this reality, the California task force doesn’t require senior lawyers to mentor their junior colleagues. Instead, it suggests that “the right incentives and support from the State Bar” might support development of voluntary mentoring programs. (p. 7) In particular, the task force recommends offering CLE credit to mentors as a “potentially valuable tool to incent their participation.” (id.)

If we have to “incent” lawyers to mentor junior colleagues, are we still a profession? Isn’t mentoring a responsibility that complements the “privilege of holding a law license”? (id.) The California task force, like similar committees in other states, is very eager for new lawyers to receive “orientation in the values of professionalism.” (id.) But how is that possible when senior lawyers are not voluntarily shouldering their own professional obligation to train their junior colleagues?

In addition to discussing these incentives, the California report focuses on the “administrative capacity” that the bar will need to oversee training, apprenticeship, and other programs imposed on new lawyers. (p. 15) The report says very little about how the bar will train the senior lawyers to do a more effective job training the new ones. One of the problems we have in our profession is that many senior lawyers don’t know how to mentor. When a new lawyer fails to do exactly what the senior lawyer wanted–but may have failed to convey–the senior lawyer often gets exasperated, decides it’s easier to do the task herself, and labels the junior lawyer “worthless.”

For this, I do blame law schools–not because we neglect to train students fully for practice, but because we fail to provide adequate models for professional training. The Socratic method may have some uses in the classroom, but it’s useless in practice. Yet that is the primary model we give our graduates:

Senior Lawyer: Ms. Newbie, file an answer to this complaint!
Newbie: Of course, Mr. Senior. Just tell me, how would I go about doing that?
Senior Lawyer: How do you think you should do it, Ms. Newbie? I’m not going to spoonfeed you.
Newbie: Oh, I see. This is just like law school. I’ll get right on it, sir. [Newbie goes on desperate search for an appropriate nutshell or tips from a slightly more experienced lawyer.]

If we’re going to preserve law as a profession, then we all have to act as professionals. Legal educators must recognize their obligation to train future members of a profession: we must give graduates foundational training in a full range of skills, as well as the ability to mentor themselves and others. Practicing lawyers, meanwhile, must meet their responsibilities to continue that training, even if clients won’t pay directly for the work. That intergenerational compact is essential to any profession. Without it, we’re simply businesses hiding behind anti-competitive restraints of trade.