In July, an American Bar Association committee will meet to review the issue of bar-passage rates for ABA accredited law schools. Chairman of that committee is Jeffrey Lewis, a professor at Saint Louis University School of Law.
“Law schools bear a fiduciary responsibility to prepare students to pass the bar exam,” Prof. Lewis said. That responsibility is reflected in the current ABA rules governing the percentage of a school’s students that must pass the examination within a certain time period or a certain number of attempts. Unfortunately, the existing rules are widely considered to be meaningless and misleading.
When the committee convenes, it will vote on a revised rule that would raise the first-time bar exam passage-rate requirements to 80% (up from the current 75%) in order for a law school to retain its ABA accreditation. (Additional stipulations also are proposed regarding the number of times a candidate may take the exam.)
Why might a higher bar-passage rate prove controversial? Because of longstanding concerns that pressures to meet the ABA’s passing rates could have a chilling effect on the admission of prospective students (often from disadvantaged backgrounds) with lower academic credentials.
Anyone who has purchased a cable television subscription is all-too-familiar with the concept of “bundling” — where subscribers pay for a group of programs that are “bundled” together — whether or not the subscriber wants (or watches) the additional shows and/or services. It’s a frustrating experience — one that is driving customers to “cut the cable” and demand more flexibility for consuming video programming.
A recent blogpost by Ron Friedmann compares the cable television industry’s structural changes to similar developments in the world of big law firms. As Friedman put it, “BigLaw still dominates but the unbundlers have arrived.” Among these disruptive forces, Friedman included: Alternatives to law firms; new types of law firms; and law firms that offer unbundled services.
Unlike cable television consumers (who have enthusiastically sought unbundled TV options) however, general counsel have proved to be more cautious — at least so far — about “unbundling” services from BigLaw, Friedman said.
Before the advent of the billable hour, commentator Steven Harper writes, clients typically received fee statements as a single line item: “For services rendered.” So when the legal profession initiated detailed fee statements based on hours spent for a client, those quantifiable billing practices were hailed as models of transparency.
Today, however, those same billable hour metrics have become primary drivers of law firm culture — a practice that institutionalizes a conflict-of-interest. As Harper puts it, this system “pits fiduciary responsibility to a client against the attorneys’ financial self-interest.” Nevertheless, hourly billing remains the most commonly practiced system for structuring the consumption and delivery of legal services. Why? In Harper’s opinion, the system endures “because clients think they have it under control.”
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