Duncan vs. ABA: I'm Rooting For The Little Guy

I think I might have joined the American Bar Association many years ago, when I had no idea what lawyering involved. But the desire to belong soon passed and my membership lapsed. Half a dozen years ago or so, a hapless telemarketer from the ABA called. The call caught me off guard. "Do I sound dead to you? Why would I want to join the Atherosclerotic Bar Association?" I slammed the phone down. Now I have more sense that even to respond to a call from the association.

The ABA is the wet blanket of American lawyering. Its business consists of telling others who to conduct themselves. It vets judges, sets standards for the performance of practitioners and enjoys a choke hold on what law schools can and cannot do to become accredited. At a time in which the nation is awash in lawyers, the ABA works hard to be the very imprimatur of justice.

Someone please drive a stave into the heart of this unctuous trade association.

The Lincoln Memorial University Duncan School of Law in Tennessee is trying to do just that. This week, the ABA denied accreditation to the new school, just days after a story in the New York Times described the start-up school’s mission of training lawyers to serve the needs of ordinary, and often poor, people in Appalachia. Duncan didn’t want to play poker with the ABA’s blue chips. It just wants to provide low-cost legal education.

The ABA isn’t granting its seal of approval to the school. Duncan doesn’t meet its standards. The ABA claims that admission scores on the standardized tests law students take at Duncan are too low, for example. Yet the scores of eight schools approved by the ABA are lower. The ABA doesn’t think Duncan’s academic standards are high enough.

Duncan is firing back. It has filed an antitrust action in federal court against the ABA claiming that the school arbitrarily and capriciously seeks to restrain trade. That’s going to be a tough claim to prove. Even so, I am rooting for Duncan.

It is not at all clear to me that ABA accreditation ought to be required for anything. A prospective lawyer either can or cannot pass a bar examination in the state in which he or she wants to set up shop. The bar exam is simply a test to determine whether a prospective lawyer has the minimum skills necessary to sit with a perfect stranger and understand the nature of the legal issue the person faces. One needn’t attend law school, much less a grade-A, ABA-certified law school to pass the test. For many a year lawyers read the law and apprenticed with practitioners to prepare for the bar exam. I think that is a far superior way to train lawyers. It was good enough for Abraham Lincoln.

There are three law schools in Connecticut, the state in which my offices are located and where I do almost all of my legal work. In descending order of prestige and of difficulty in gaining admission as a student they are: Yale, the University of Connecticut and the Quinnipiac University School of Law.

Yale aspires to train academics and judges. One year a final examination question in one of its courses asked students a simple enough question: "What is justice?" That’s a fine question, but, anyone can answer that. Fancy schools do stupid and pretentious things like that. Years ago, I sat for oral exams in a doctoral program in political philosophy at another Ivy. The first question threw me: What did I think of the new three-point rule in the NBA? Huh? I thought. I guess they figured in advance I would pass the exam.

But that’s the point. Top schools breed complacency. Getting in is the hard part. Almost everyone gets a degree. I know only a handful of Yale Law graduates who are competent in a courtroom. I have hired many associates over the years. I would not hire a Yalie. The law is not science, literature or abstract art: It is applied legal doctrine to the facts and circumstances pressing down upon a client.

I have hired University of Connecticut and Quinnipiac Law graduates. Frankly, my sense is that the Quinnipiac kids have superior training in how the law actually works. The University of Connecticut spends too much time worrying about its rankings to worry about such things as what pleadings to file in court. Quinnipiac is hungry. It has a chip on its shoulder. It wants to prove that its kids can compete. Some of the best associates I have ever had come from Quinnipiac. They learn the law as it is applied and works in the pragmatic reality present in ordinary lives.

I am betting the graduates from Duncan are hungry as well. No one is going to give them the benefit of the doubt. When they walk into a courtroom, they will have something to prove. That’s good, in my view. Let them prove themselves while proving their client’s case.

The ABA? It spends far too much time grooming young lawyers. It’s idea of a legal rebel is someone who colors with different colored crayons. Why not question whether the coloring book is necessary at all. The ABA is dead weight, a legal country club. My client’s can’t afford to buy me silver spoons.

I am rooting for Duncan. I hope it kills the trade association. If it succeeds, I just might hire a Duncan grad to head into court and raise some hell on behalf of a client. Making the ABA superfluous is not identical to deregulation of lawyers. There will still be bar exams, licensure requirements and regulation. A world without the ABA’s mandatory stranglehold on professional education and standards might just be a world with better advocates.


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