Beginning the 2011-12 year with purpose and promise

Issue September 2011 By Richard P. Campbell

Whether it is truly a Chinese curse or just a poorly sourced quote used by the late Robert F. Kennedy in his famous Day of Affirmation Address in Cape Town, South Africa, in 1966, we surely "live in interesting times."

Hearken back to the time when you were considering applying to law school. What did the American legal system look like to you? Were courts and judges models of stability, equipoise and scholarship? Did you envision judicial office as the perfect sinecure to end a financially rewarding professional career and to ease into a secure, state-sponsored, lifelong retirement? What is better than a state pension, right?

How did you imagine private practice? Did you expect to earn a high income in a private law firm working on 
intellectually challenging problems that warranted academic-like "sabbaticals" every 10 years or so? Did you plan on paying your law school tuition with the cash you earned through summer jobs, alone or in combination with support from Mom and Dad? Did you envision owning a home in a bucolic suburb populated by like-minded and comparably educated, affluent white-collar workers? If you ever truly comprehended "the rule of law" back then, did you consider it at risk? Did you ever ask yourself what would happen if the rule of law in this country simply failed?

Today's "law economy"

Let's call the collective sum of all public and private services related to the reading, interpretation, guidance, application and enforcement of statutory and common law the "law economy." There are obvious public employee stakeholders in the law economy (judges, prosecutors, court administrators, clerks and court officers). And there are equally obvious private employee stakeholders as well (lawyers, law firms, paralegals, investigators and the like). It is easy, however, to view the law economy myopically and to lose sight of the fact that the public at large are stakeholders in it too (businesses and consumers, employers and employees, purchasers and sellers, lenders and borrowers).

The foundation of the law economy in the Commonwealth of Massachusetts is full, adequate public financial support for the courts. But the truth of the matter is the public (through its elected officials) do not properly support the courts. As a result, the law economy is crumbling all about us. Courts are closing; judges are retiring early; support staff are laid off or just not replaced.

Private practice is faring no better. Massachusetts is burdened with nine law schools! That's right. Nine law schools continue to pump out thousands of newly minted graduates every year, even though almost none of them secure paying jobs. The era of large law firms employing huge "classes" of new graduates every year is gone. Indeed, large law firms are failing, proving that many are economic houses of cards. We are witnessing the creation of a lost generation of law school graduates who neither have jobs at graduation nor any realistic hope of getting jobs. Without viable options, many new lawyers "hang a shingle" and try to "make a go" of private practice. No experience, no resources and no mentors inexorably lead to bad lawyering and adverse consequences for clients, courts and other practitioners.

Erosion of the rule of law

When judges and lawyers speak to the harm that comes from the decline in the law economy, they report about delays in securing jury trials, the unavailability of transcripts, overworked court staff and frazzled judges. Average citizens, who never see the inside of a court, simply don't connect with these arguments. Civil lawsuits (which, as talk show hosts tell them, are often "frivolous") involve "others" -- not them. The timeliness of criminal trials really doesn't matter so long as the criminals are locked up.

The most important point for all stakeholders to note as they ponder the decline in the law economy is the erosion in the rule of law; and with it, the decline in the quality of life in the commonwealth. The employee who works hard for two straight weeks expects her employer to deliver a paycheck and make good on promises of health insurance and other benefits. The tenant who pays her rent expects the building heat and electricity to work when she turns on switches. The consumer who fills prescriptions at CVS expects both pills inside the bottle when she opens it and that the pills are actually medications. The depositor who placed funds in her bank account expects the funds to be there when she needs them. The bank that lends money to a borrower on a promissory note expects the borrower to pay back the loan according to its terms. The city resident who is stopped by a police officer does not expect to pay a bribe in order to go on about her business.

We take the rule of law for granted. We never ask ourselves what our individual lives would be like if the rule of law was ignored, unenforced or nonexistent. Images from Syria, Libya and Somalia show us the ugly face of lawlessness. Murder is common in Ciudad Juarez, barely across the Texas border. Kidnappings for ransoms are now said to be common in southern Arizona.

By underfunding the justice system, the public at large puts at risk the way in which they live their lives, and with it, their hopes and dreams for themselves and their children and grandchildren.

Goal #1 for our 101st year

The Massachusetts Bar Association has set as its primary project for its 101st year of operation the education of the public at-large on the grave consequences to the rule of law from underfunding the justice system.

The law economy's impact on "gateway cities"

Our political leaders like to boast about the relative state of the greater Massachusetts' economy as better (or less bad) than the economies of other states or the nation as a whole. For example, our 7.5 percent unemployment rate is made out to be acceptable because it is lower than the 9.5 percent national unemployment rate.

The dirty secret about this state's economy is found in the endemic and entrenched 15 to 20 percent unemployment rates in our so-called gateway cities; viz.; Lawrence, Lowell and Haverhill in the Merrimack Valley; Brockton, Fall River and New Bedford on the Route 24/Southcoast corridor; Worcester in Central Massachusetts; and Springfield, Holyoke and Chicopee in Pioneer Valley.

The bar has simply left to grand political thinkers the responsibility for solving the problems that beset the gateway cities. Yet, it is here, in these gateway cities, that the rule of law is tested every day, whether it be by violent crime, or by corruption or by unsafe living conditions. Closed courthouses, unsafe courthouses and dysfunctional courthouses that serve gateway cities breed contempt for the law and diminish our collective safety and security statewide.

Goal #2 for our 101st year

The Massachusetts Bar Association has set as a second project for the 2011-12 association year direct engagement in gateway cities policy debates and incubation studies. We hope to partner with other influential organizations, such as UMass Boston and MassINC, as well as with our affiliated county and affinity bar associations in developing solutions for gateway cities. Think about it. Who is better prepared to craft sweeping changes to state law than members of the Massachusetts Bar Association?

The law economy, law schools and lawyers

How is it possible that rational undergraduates choose to attend law school, incurring debts of $150,000 to $200,000, when class after class of graduates goes jobless in the field? Perhaps, it grows out of false information published by some law schools. For example, one third-tier law school apparently claimed that its average graduate was employed in private law firms at an annual salary of $160,000. Harvard Law School cannot make that claim.

Many individuals in this debt-ridden, lost generation of recent law school graduates are turning to solo practice without either prior experience or access to mentors. Practical problems ensue. Clients are poorly served; incivility abounds; established practitioners experience a decline in revenue coupled with an increase in transactional expenses.

Something is clearly amiss with this aspect of the law economy, and the Massachusetts Bar Association plans to evaluate and act on it. At its first organizational meeting on Dec. 22, 1909, the MBA adopted among its goals "to promote reform in the law" and "to facilitate the administration of justice." In its November, 1929 Quarterly, the MBA's Committee on Legal Education identified low educational requirements as a chief reason for the deterioration of the bar and reported "the patent fact that it is people in humble circumstances who suffer most from untrained lawyers."

Goal #3 for our 101st year

The Massachusetts Bar Association has set as a third priority for the 2011-12 association year evaluation of the ongoing relevancy of law schools, the three-year law school model, the cost of law schools and the information delivered to Massachusetts residents considering application to law school. Necessarily, the MBA will also look at mandatory CLE, particularly for newly admitted lawyers.

We live in interesting and difficult times. As leaders of our profession, we can and should make a difference to our fellow citizens. Now is 
the time.