Addressing underemployment and underrepresentation: One lawyer’s thoughts on how to attack the problem
The growing issues of law student indebtedness and unemployment may provide an opportunity to address a lack of access to the legal system
There is no shortage of coverage in the news, journal articles and political debate about the increasing burden of student debt among recent graduates. The economic downturn, coupled with the increase in the number of students graduating from law schools, has created what the Wall Street Journal called, “...the worst legal market in 20 years.” As a result, the law school graduates of the class of 2011 had slightly better than a 50-50 chance at getting a full-time, long-term legal job. The reality is even more grim when a new attorney considers the culture within traditional firms because the longer a new attorney is unemployed, the less desirable that candidate may become. This makes it even more unlikely for a new graduate to turn a J.D. into a well-paying, stable career.
What many of the statistics and doomsday forecasters are addressing when they question the current level of sustainability of the legal profession, are market saturation concerns against the backdrop of the traditional practice of law. While this current traditional model is deemed unsustainable by many, few suggest or even consider alternative models that may help the legal profession thrive if young lawyers are given the opportunity to practice in less traditional roles.
The American legal system, despite what one might say about specific decisions handed down, is an excellent system for parties seeking a resolution to a dispute. There is always a definitive outcome, and each party is afforded ample opportunity to plead their case. However, the system assumes that all parties are afforded minimum access to the system and are able to be represented by competent counsel. Unfortunately, the fact remains that large numbers of people have historically had little or no access to legal representation. This issue will likely be exacerbated by the current financial state of new attorneys and the depressed potential and stability of the legal employment market. Newly installed ISBA President, John Thies has recognized this problem and has formed a special committee to address the issue, the Impact of Law School Debt on Delivery of Legal Services.
Among these difficult times of indebted, underemployed attorneys, there may be opportunities for the legal profession to address the issue of lack of representation to traditionally under-served populations while simultaneously assisting those expanding number of indebted, new attorneys. What currently exists is an excess of young lawyers handcuffed with debt and underemployment, and a demand for competent legal representation for those who cannot afford such representation. One suggested solution that attempts to address both of these issues simultaneously is the implementation of a loan obligation reduction program for performing pro bono legal work.
A loan obligation reduction plan for federally funded student loans would allow attorneys to reduce their student debt while providing legal services to the underrepresented. This program would afford young lawyers valuable time and experience actually practicing law by analyzing facts against legal theory, arguing motions and drafting appeals. This in turn would allow the young attorneys to develop into productive professionals and make these young attorneys more marketable. At the same time, traditionally underrepresented segments will gain access to necessary legal representation, where typically none would be afforded.
This type of debt reduction program could be uniquely implemented and administered in the legal field as opposed to other professions because the mechanism for regulation already exists. Any attorney who has ever asked the court to include attorney’s fees in an award understands that process. In this scenario, at the completion of a pro bono case, the representing attorney would ask the court to certify their reported time was reasonable considering the facts of the case. It would take submission of a court order to the federal loan administrator to apply a reduction amount.
Certainly, there are many details that would need to be worked out, such as whether there will be an economic qualifier for potential recipients of the work, whether students would be able to deduct from the principle or merely the interest, what a reasonable rate might be, etc. However, there are numerous benefits that can be obtained through the implementation of such a program. Young and new attorneys have sacrificed to gain the knowledge necessary to practice law. They have put their professional careers on hold, forgone financial gain to incur debt, spent countless hours studying, and in some cases uprooting their families and lives, all for the opportunity to spend their productive years as advocates for others. Sometimes they have even been induced by artificially inflated numbers reporting employment and earning potential. A pro bono student loan reduction program would afford many the opportunity to do just that, while providing representation to those who have been historically shut out of the legal process. ■