Critics of plans to create the first public law school in Massachusetts argue that there are already too many lawyers. This argument finds support in the current contraction in the legal industry, in which law firms are laying off lawyers, cutting back on hiring, and reducing salaries and bonuses in record numbers.
David Yas, Publisher and Editor-in-Chief of Massachusetts Lawyers Weekly, counters that, although there may be too many lawyers seeking jobs in private law firms, there is a scarcity of community lawyers and lawyers in public service jobs. A public law school, he argues, would allow students from economically depressed communities who cannot afford private law school tuitions, and who may be more motivated to represent those most in need of access to justice, to become lawyers. Instead of an over-supply of lawyers, Yas suggests, there is a shortage, at least when it comes to serving the needs of people who live in such communities and the poor.
I don't know whether having a public law school in Massachusetts would accomplish Yas's goals, but he is certainly correct about the unmet needs. To some extent, those needs are always there. There are always tenants in need of representation in eviction proceedings, battered spouses in need of counsel to help them obtain restraining orders, parents in need of representation in child custody proceedings, and homeowners in need of lawyers in foreclosure cases. In economic downturns like the current one, the needs grow exponentially. At the same time, legal services organizations whose missions are to meet those needs are forced to lay off staff attorneys for lack of funding. Just as the demand for legal services spikes, the supply of legal services attorneys shrinks. This inability to meet the enormous demand for legal services is occurring even as there are record numbers of lawyers without jobs.
The crisis in legal services in Massachusetts, and across the country, is largely the result of a severe decline in IOLTA funding. IOLTA accounts are accounts of client money held in trust by their law firms. The interest generated in these accounts is distributed to organizations that provide legal services to persons otherwise unable to afford representation. Because the slowdown in the economy has resulted in less principle in these accounts (fewer deals equals less money being held in trust), and because interest rates are depressed, the resources generated by IOLTA accounts are only a small fraction of what they once were. As a result, there has been, and likely will continue to be, enormous strain on the legal services organizations that rely on IOLTA funding to pay the lawyers who work tirelessly at low salaries to represent the poor.
The result resembles the truism often recited about world hunger: that there is enough food in the world to eliminate hunger, but starvation persists because of problems in getting the food distributed to those places where it is most needed. Yas argues that the problem we face is not that we have too many lawyers, but that we have too many lawyers trained in expensive private law schools, geared towards finding jobs in large law firms, and graduating with a debt burden that requires them to seek out the highest possible salaries. The problem also is that there are not enough alternative legal education and career paths available for those who might be inclined to follow them.
There is no easy fix for this crisis, which is more complex than presented here. At an absolute minimum, our state legislatures need to continue to appropriate sufficient funding to our courts and to legal services budgets to avoid making a very bad situation worse. But more must be done. Yas asks: "Is it, perhaps, time to try something different?" Government officials, public service organizations, law firms, lawyers in private practice, and corporate counsel should work together with the courts and with national, state and local bar associations to search for creative and effective solutions to this intractable problem. And in Massachusetts, a public law school, with reduced tuition, graduating more students from local communities who would come out of law school with lower debt burdens and, therefore, more salary flexibility, just might be a worthwhile component of a more global solution.
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