Should lawyers be able to partner with nonlawyers and split fees?
The following comments were sent to OSBA President Judge Patrick F. Fischer in response to his article "President's perspective: Should lawyers be able to partner with nonlawyers and split fees?" from the Nov./Dec. issue of Ohio Lawyer.
I also prefer that the profession remain independent. With insurance companies now using in-house employee lawyers to represent their insureds, we already have lawyers acting under control of nonlawyers who are not their clients and with nonlawyers profiting from their work. Haven’t we already crossed the bright line?
Rex W. Miller, Canton
I enjoyed your article in Ohio Lawyer about non-lawyer ownership of law firms and fee splitting with non-lawyers. I completely concur with your comments and views, and it's surprising to me that this issue keeps coming up. The current rules and practice make sense on so many levels.
Thanks for articulating this so well!
Jack A. Donenfeld, Cincinnati
Thank you for keeping dialogue alive on the need for Ohio to come up with a better method of redistricting. As you know, the Republicans retained 75% of the Ohio House of Representatives, with barely 50% of the vote thanks to gerrymandering, made more efficient than ever by 21st century demographic studies and computers. We all know this tends to undermine the people’s faith in democracy.
About two months ago you asked attorneys to comment upon adding another Ohio law school and, secondly, what to do about the failure to meet the needs of poor people for legal advice. I wrote to you on the first subject but did not address the second. If people have to choose between shelter, transportation or legal services, they will go without legal services. Government funds will go for food, medical and shelter long before legal services. Some past OSBA leaders have proposed solving this problem by mandating pro-bono services for indigent clients. I am sure you heard from proponents of that solution since well before you assumed the presidency of the OSBA. I oppose mandatory pro bono service for attorneys. If it is mandated, then “pro bono” should not have a falsely narrow definition.
As a solo practitioner I am free to pursue as much pro bono activity as I feel I can afford. I administer 12 different nature preserves from my office. I am involved in a park board. I am active in promoting infrastructure inspection and repair in my community, i.e. “let’s not let the bridges rust out and collapse, let’s not have culverts get blocked and cause floods, let’s repave our roads timely and protect the road base, etc.” I’m also involved in community educational issues. I am one of the leaders of a state-wide effort to prevent our state parks from being timbered (yes, last year legislation was passed making it legally possible). I’m also involved in efforts to update oil and gas drilling regulations to take into account the extremely high pressures at which fracking has been occurring over the last few years. None of those activities on my part would qualify as pro bono among the proponents of mandated legal services for the indigent. Nonetheless, by any commonsense definition of “pro bono” I think they qualify.
As you find yourself grappling with the legal problems of the indigent, I would simply ask you to remember that any mandated minimum amount of pro bono work should take into account the broad range of activities a lawyer can pursue for the benefit of his community that nonetheless do not solve legal problems of impoverished individuals.
Thank you for taking the time to read this letter.
Eric S. Miller
Thanks for giving all OSBA members the opportunity to consider and comment.
You ask if you're "out of step" or "too old school" in light of your opposition to allowing nonlawyers to be partners in or otherwise have an ownership interest law firms. If you are, that's two of us. I almost stop my consideration after the possible mitigation of such structure to a lawyer's undivided loyalty to one's clients. The other issues raised in your column are valid also, but the citizenry must be able to continue to rely on the key concept of undivided loyalty from the lawyer to the client.
Most of the arguments of proponents have been met without much stress or expense to the client by working with or through a law firm to engage engineers, architects, financial advisors or actuaries. Structured properly, such relationships may be afforded some of the protections of working with a law firm, including confidentiality and avoidance of conflict of interest.
I wish to comment on your article on “Should lawyers be able to partner with nonlawyers and split fees?” It is unfortunate that the ABA continues to explore and promote issues that detract from the noble legal profession by continuing its practice of debating and taking positions on political issues as well as promoting business-ization of our beloved profession. The mere thought of having nonlawyers own part of all of law firms is totally abhorrent to the principle of lawyering as a profession. Ownership by nonlawyers will commercialize and create a trade or business mentality among not only the nonlawyers owning the legal practices, but also the practicing attorneys within the practice.
It is foreseeable, the next step, as ludicrous as it seems, will result in law firms becoming large corporate entities which will be traded on the Over-The-Counter and New York Stock Exchanges. The corporate law firms will be managed by nonlawyer CEOs driven by goals of always increasing the bottom line to satisfy its investors at the expense of providing professional services to their clients.
The risk of confidentiality and privacy will be greatly compromised and violated either intentionally or unintentionally to the detriment of the client. This cannot be avoided regardless of the precaution taken by large corporations to maintain their client’s confidentiality since so many nonlawyers will have access to the information.
Ultimately, the key question is: of what benefit will the inclusion of nonlawyers in the legal services profession have to the clients, or to the individual lawyers? Isn’t one of the main purposes of the ABA to promote, foster and enhance the legal profession? The commercialization of the legal profession certainly is not in keeping with the ideals to enhance the legal profession.
Joseph T. Svete
First, congratulations on your re-election and also congratulations on being appointed to the Ohio Constitutional Modernization Commission; I would think this would be a very interesting project. The thrust of my letter, however, is in response to the article that appeared in the Ohio Lawyer about fee sharing with non-attorneys.
It is wonderful to find someone who wants to listen instead of opine (especially an appellate judge). Before the Ohio Bar addresses the sharing of fees with non-lawyers, it should consider its rules for sharing fees among lawyers. Attorneys in larger firms receive originating credit for bringing in clients, whether they work on the case or not. Now and then, a probate lawyer brings in a divorce and receives part of the fee; yet a sole practitioner must do a fair share of the work (in a field where his experience is lacking) to receive a part of the fee. This financially discriminates against the sole practitioner, especially in shared office practices like a few larger arrangements in Cincinnati. This leads to either non-compliance or promotes the sole practitioner to join a firm when he really does not want to. It should not be necessary for the referring counsel to disclose fee sharing arrangements to clients; they are not advised of the internal formulas of credit for rainmaking within firm.
John W. Eilers
In response to your President's Perspective in Ohio Lawyer, thank you for being against non-lawyer law firms.
I have 52 years since being admitted and I believe the erosion of being a professional should stop. I believe non-lawyer ownership of law offices is wrong in every way.
Keep up the resistance!
Thomas C. Clark
Starting a continuous dialgoue
I enjoyed your column in the Ohio Bar magazine—good idea on creating a dialogue. Here are my thoughts on law schools in Ohio—there are too many in Ohio already. All of Ohio’s law schools should follow CSU’s actions this year by increasing admission standards and decreasing the size of their new class. If the tenth law school is a private or for-profit school they should be able to do as they like. If they can develop a business model to produce new lawyers then let the free market make that determination. However, I believe the state needs to seriously consider eliminating one or two of the state supported law schools. Based on the statistics you provided we have too many lawyers in Ohio. We have a stagnant population, low retirement rates for lawyers and an over abundance of lawyers entering the workforce every year. The employment track for young lawyers was fairly predictable 10 to 20 years ago for an overwhelming majority of the graduating class. Now it seems law school grads are lucky if they can land professional employment in any arena that will cover their law school loans.
I also believe law school is too expensive as is all higher education. Ten years after graduation I am still paying off my loans and will be for at least another year. The law degree definitely helped me advance in my career but it was expensive in 1999 and I had half tuition paid. I’m not sure how many young people assessing whether to attend or those graduating from law school can create a future fiscal scenario that makes law school a good investment unless someone else is paying for you to attend.
In regards to service, my recommendation would be to increase funding for legal aid and public defenders so we can employ the many lawyers that are working in non-legal jobs. We do not need any more lawyers in this state. While some studies may show legal aid groups cannot keep up with demand, that does not warrant sending more young people into a profession where there is limited opportunity.
The OSBA has been well served by printing the research and articles prepared by the adjunct professor at Capital on true employment data for law school graduates. Most of the content doesn’t pertain to me however those articles have turned me into a consistent reader of the Ohio Lawyer.
I also wanted to add that I am impressed that a sitting member of the judiciary is president of the OSBA. I believe it speaks volumes about the relevance of the OSBA to Ohio’s legal community and the commitment of lawyers like yourself to lead professional activities. Take care,
Jeff Smith, JD
Grandview Heights, Ohio
Dear President and Judge Fischer,
1. I agree we do not need another law school.
2. How can we provide legal services for those that cannot afford a lawyer.? As you know I founded the Volunteer Lawyers for the Poor in Cincinnati in conjunction with the Cincinnati Bar Association and with the Cincinnati Legal Aid Society. The effort has been very successful.
When we first launched the effort most of the law firms, many of the corporate legal departments and many individual lawyers saw the great need and participated. Today the volunteer lawyers are for the most part self motivated rather than initially motivated by their firm. Since inception the law firms have increased greatly in size as have the corporate legal departments.
The number of participant volunteers I do not think has increased proportionally and what are the individual problems.
First, it is far better if the volunteer lawyer has knowledge and experience in the case assigned. In the large law firms and in the corporate departments it is often very difficult to match an individual attorney with the specifics of the proposed assignment of a case.
Second, there is greater emphasis on profits leaving much needed pro bono work in the background.
Third, there is nothing in place on a higher level and scale that rewards the volunteer lawyers or gives them the profile they deserve. (Cincinnati does have the Volunteer Lawyer of the Year Award).
Are there solutions? Would or could our Ohio Supreme Court require pro bono work? I think no on both counts. it would not work in any event because of the need for a certain expertise in the assigned work.
When the VLP was started there was an incredible and suprising agreement among the lawyers and firms that people in poverty need and should be entitled to legal services. That is why the program succeeded in Cincinnati and all over the country. I believe that desire still exists so the question is how can the desire be turned into actual volunteering or alternatively paying someone else to to the work, specifically someone that has the expertise.
The solution will take time and effort. I would suggest a five step process:
1. The Ohio State Bar Association form a specific committee to study and solve the problem. The committee would be composed of the President of the Ohio Bar, the vice president and several other members. The committee would also include a special delegate from each Bar Association in Ohio.
2. The committee would propose a plan that would be endorsed by the Ohio Supreme Court, the Appellate Courts and the associations of Common Please judges and Municipal Court judges.
3. The committee would have a mandate to confer with the Legal Aid Societies in Ohio for input and solutions.
4. The committee would confer with as many law firms and individual attorneys as possible to provide either volunteer lawyers or funds to hire specialists.
5. the committee would be permanent because continual encouragement would be essential.
I wish that I had the energy, the longevity and the profile to get this job done. Think about asking the past presidents of the Ohio State Bar Association, three or five to lead the effort which would be staffed by the Ohio State Bar. Every past President that I know really wants to stay involved and this would nicely fit that desire.
I firmly believe that with high publicity and profile the above would result in success.
Harry H. Santen
I read your article in this month’s Ohio Lawyer and could not agree more.
Ohio needs fewer law schools, not more. I am disappointed at the quality of applicants I interview on the Stark County Bar Association Bar Admissions Committee, primarily from U. Akron. I am disappointed at the dearth of job prospects for young attorneys I mentor.
As a college economics major, I know that the law schools are joking if they think that cutting class sizes 10 percent each will solve this problem. I realize that every law school is a “cash cow” for a university. I think the question is how to incentivize certain schools to reduce or eliminate their law schools, especially with the political element of closing a public law school in a particular location.
Let me know if I can be of any assistance.
Fitzpatrick, Zimmerman & Rose Co., L.P.A.
P.O. Box 1014
140 Fair Ave. NW
New Philadelphia, OH 44663
I don’t think OSBA should take any position or action concerning the possible opening of a tenth law school in the State of Ohio. It is one thing for you as a private citizen to express your opinion that Ohio doesn’t need another law school. It is quite different for the OSBA or you as President of the OSBA to take any position or action to restrict the opening of a tenth law school.
The American Bar Association spent over $2 million defending litigation brought by the Massachusetts School of Law when the ABA refused to accredit the school. The allegations of restraint of trade and suppression of competition and violation of federal statutes would fill a book. The OSBA doesn’t have $2 million to waste in possible litigation. Therefore, I suggest the OSBA consult a knowledgeable lawyer before you or it takes any position or action.
Beyond the legal problem, I don’t think it is a good public policy to announce that the OSBA is opposed to a tenth law school in Ohio. This will cause you to spend most of your term of office explaining why the OSBA doesn’t want any further competition for your members. This will be a losing argument for you and the OSBA.
My suggestion is that the OSBA should engage in a “Truth for Law Applicants” campaign. The State of Ohio has 11,555,000 total population. The population increased 1.56% in ten years from 2000 to 2010 and is having little additional increase. The State has 40,000 lawyers or one lawyer for every 290 men, women and children. With ten law schools the State is adding a net number of 1,000 lawyers a year or 10,000 over the next ten years to 50,000 lawyers. The State population if it grows at the rate of the previous ten years will be 11,800,000. In ten years there will be one lawyer for every 236 men, women and children in the State.
Page 8 of the Ohio Lawyer, September/October 2012, states that only 49.5% of the 2011 law graduates obtained jobs in law firms, down from 50.9% in 2010 and 55.9% in 2009. The graduates in 2011 on average owed $98,500 in student debt. For those graduates who could find a law firm job the yearly median salary in 2011 was $60,000, down from $63,000 in 2010. Those graduates who found a government job had a median salary of $52,000. The national median salary at law firms dropped 18% from 2010 to 2011 and was $85,000 in 2011.
Additional facts can be obtained from Professor Jason Dolin’s article in the September/October 2011 issue of Ohio Lawyer. Dolin may even help on a campaign to get the “Truth for Law Applicants”.
I think you can do more for the profession and for those poor kids thinking of going to law school by writing news articles, talking to news reporters—especially after the election when they will be hungry for material—and by speaking about the Law School Ponzi Fraud.
Someone on staff should be able to prepare a “draft” for you. There is no reason for you to do the initial research.
If you have questions just email me at email@example.com.
Duke W. Thomas, Esq.
Vorys, Sater, Seymour and Pease LLP
52 E. Gay Street
P.O. Box 1008
Columbus OH 43216-1008
Judge, congratulations on reaching out to the membership on a core issue facing legal education and lawyers: we are creating far more lawyers than there are lawyer jobs. The saddest part is that this problem is not new; indeed, it even preceded the economic meltdown. And our law schools, charged with turning out professionals with strong ethical underpinnings, continue to act unethically, admitting and graduating too many students, year after year, and actively misrepresenting what is awaiting them upon graduation.
In my position with our firm, I have spent way too much time these last several years disappointing engaged and earnest law school graduates, attractive candidates in a more robust market, and watching them settle for other work because there is no work in their profession. All these folks—today working in other industries, tending bar, etc.—still hope to enter the profession they chose. So this is not going to get better soon, as this backed-up glut of wannabees will compete for available jobs with future graduates for years to come.
So, to your question: should you support a tenth Ohio law school? Absolutely not. Now all you need to do is shame the nine we have into acting more responsibly, towards their students and the profession.
David L. Johnson / Partner
Taft Stettinius & Hollister LLP
65 E. State Street, Suite 1000
Columbus, Ohio 43215
Hon. Judge Fischer
I read your article in Ohio Lawyer and want to express my concerns over another law school in Ohio. I am a retired Judge and have felt for several years we are over populating the number of lawyers. In my opinion, we should reduce the graduate number by at least 25% and I would have a goal of a reduction in the range of 33% to 40%. I think any school that wants to add a law school is doing so not for the sake of providing a need but the school believes that a law school would be "profitable" with tuition over expenses and subsidize other educational schools. We are doing law students a disservice to promise them high expectations which are not attainable and allow them to accumulate student loans which force them into situations which leads to frustration.
I do not think more law students will assist unmet legal services as these "lawyers" will not be in a position or have the means to assist.
I think the State Bar needs to take a very firm position against any new school or any school wanting to increase enrollment.
Judge Rex Fortney, ret. Van Wert
New medical doctors and new teachers receive credit toward their educational debt by rending service to the general public after graduation. Is there a need for programs for new lawyers to receive credit toward their educational debt with pro bono or legal aid service after graduation? Such a program would serve the general public and the new lawyer.
The decision by U. of Findlay to add a law division is based on their own economics. U of F will easily fill a law school class. It will be a big money maker for them. Their decision has nothing to do with a need for attorneys in OHIO. Because U of F will just be starting, they will get the students that were unable to gain admission to the better schools. Their initial pass rates will be under 50%. Some students will have over $100,000.00 loans with a slim prospect of passing the bar, and if they do pass, will enter a market that employs only 50% of them.
As far as employment with regard to the needs of the poor, Ohio and the US in general is moving away from funding of legal services. Funding is not going to happen in the current political scene. Why should newly minted, debt ridden inexperienced attorneys be the ones saddled with providing legal services to those who cannot otherwise afford legal services. The issue needs to be addressed at the state and federal level to increase funding to legal service agencies.
Miller and Luring Co. LPA
314 West Main Street
Troy, OHIO 45373
I urge you to continue to oppose adding yet another law school in Ohio—the 9 we have are probably 3 or more than we realistically need—even if we should someday return to an economy where graduates could reasonably expect to be adequately compensated. I understand that law school enrollment is generally down—quite understandably so—thus why add yet another law school?
Your second question is in my view tougher—there does not seem to be a ready answer. Yes our 9 law schools continue to churn out new lawyers, but many of them are so far in debt that they cannot provide the pro-bono or lower rate fees required to service the growing underserved. If the economy is actually turning the corner to better times and conditions we can hope that there will be more funding for expansion of legal aid programs. Wish I had an answer.
Good approach in your President’s Perspective—made me stop and think. Keep up the good work.
1. There are probably too many students in law school. But if a school wants to build one, I think that is up to them.
2. One idea is to partner up with law schools and legal aid groups to offer reduced tuition to law students who would devote X number of years to a legal aid society, at an agreed upon salary. If the deal is breached, the full amount of tuition is owed.
Diehl & Hubbell, LLC
304 E. Warren St.
Lebanon, OH 45036
In response to your President’s Perspective from “Ohio Lawyer”, Volume 26, No. 5, I would like to offer two insights into the question of providing legal services to the less advantaged.
A large number of attorneys are leaving law school burdened with sometimes over $100,000 in student loans. Those newly licensed attorneys are seeking employment whereby they will earn enough to repay the loans as quickly as possible. Efforts should be made by the private sector to offer some type of incentive for pro bono work potentially in exchange for lower interest rates on loans, loan consolidation or forgiveness, thus encouraging participation.
Secondly, the Ohio Bar should consider greater utilization of paralegals to assist in offering services to the lower income population.
Granted everyone in the legal field should participate in volunteerism, yet, given the time limitations all professionals experience, a cost benefit analysis must be employed to determine if and when pro bono work is feasible. By offering incentives for such work beyond the “feel good” quality of such and through use of all resources available including paralegals, your goal of providing for lower income groups may be met.
Karen M. Hoog, Paralegal
Law Offices of Michael K. Allen & Associates
810 Sycamore Street
Cincinnati, Ohio 45202-2155
This is in response to your question as to the opening of a new law school. Four of my sons, my son-in-law and of course myself are attorneys. Not only do I have firsthand knowledge of how tough it is to get a position in today's legal field, I have been doing this for almost forty years and I have never experienced such difficult times. It is obvious that we are not being honest to those candidates for law school as to what the environment is like today. Too many are coming out trusting that there is opportunity and employment that justifies six figure tuition debt, there is not.
Our family has sacrificed greatly for the education of each of our children. Since I have ten children, I have seen them enter many areas of employment. My sons that are attorneys are having the most challenging time to participate in their profession. It is all about the numbers. Each of my children except for the tenth have graduate degrees or the equivalent in the computer systems field. It is my four sons that have the greatest debt because of the inability to find a source of income that permits them to live reasonably and still fully service the debt. We must in the legal profession stop this horrible trend. In the end it will cause not only severe financial challenges but will put great pressure on us in meeting our ethical rules.
That is why not only should we stop the growth, we as members of this profession must give serious consideration to reducing the number of attorneys entering the profession.
Thanks for your time.
Daniel J. Ryan
Attorney at Law
1370 Ontario St., Suite 2000
Cleveland, Ohio 44113
Thank you for publicly opposing the production of more lawyers, at public expense, in the state of Ohio. This is a topic that should be addressed. Enclosed is a letter that I wrote to one of the authors who was published in one of the earlier issues of Ohio Lawyer. The state has a budget crises. While we cannot oppose a private law school opening with strictly private funds, we should actually be working toward the elimination of at least one publicly funded law school. Moreover, these so-called private institutions are actually drawing upon a host of state and federal funds. Given that Ohio lacks money to protect essential capital assets like bridges or state parks, why go in debt to produce law school graduates who have little hope of finding a job?
The education bubble is going to burst just like the housing bubble. As a nation we are not only producing too many unneeded lawyers, we are producing millions of business school graduates whose degrees will prove useless in the real job market. The education bubble is just one more example of debt-financed economic stimulus that will have adverse long-term results.
Here in the Greater Cincinnati area, I receive on average 3-4 calls a month from lawyers who have been out of school for a few months to a few years and cannot find legal employment. One grad left our profession and turned to medical school as an alternative. It is both an economic reality and a professional concern which will be aggravated by graduating more new attorneys. I always meet with the lawyer who calls and try to offer suggestions and alternatives-and our profession needs to keep striving for solutions!
Your friend and colleague,
Dear Judge Fischer,
I write in response to your editorial in the most recent edition of OhioLawyer seeking comments on whether you should continue to oppose the opening of a tenth law school in Ohio. Thank you for seeking to involve the bar (including freeloading student members such as myself) in the conversation.
I strongly urge you to continue to oppose the opening of another law school in Ohio. The labor market in Ohio cannot absorb the number of new law graduates currently produced by Ohio's nine law schools, and the addition of another law school would only exacerbate this problem. Barrels of ink have been spilt already treating this topic, and I won't endeavor to summarize all of it. I would call your attention to the EMSI study reported in the New York Times (link below) predicting that Ohio will have an annual surplus of 508 new attorneys during the first half of this decade. The unrestricted availability of non-dischargeable student debt has artificially inflated demand for legal education for years, resulting in a flood of new graduates with smothering debt obligations and dim prospects.
It is true that there is a large, underserved need for legal services; however, creating an even larger body of new graduates is an imperfect solution to the problem. While there is a demand among the indigent for legal services, most new lawyers lack the financial capacity to do pro bono work. The concept of pro bono work is predicated, in part, on two things: first, that a lawyer can afford to give away a portion of her time; and second, the notion that a lawyer owes service to the public good in exchange for society's protection of her exclusive right to practice her remunerative profession. If a lawyer cannot earn a living in the profession, it is inapposite that she should further de-value the service she provides by working for free.
Perhaps more importantly, few recent law graduates have the practical skill to provide effective representation to a client, indigent or otherwise. It is well known to the point of being cliché that law school does a poor job of preparing students for practice. No one is advocating that unsupported new lawyers should simply be turned loose to aid indigent clients; I only mention this part to underscore why "more lawyers" is not the solution to the problem of underserved populations. How much good could be done if the millions of dollars that it would take to open and operate a new law school were instead devoted to expanding the capacity of Ohio's legal aid and public defender organizations and offices? Not only could more people in need of legal services be reached – but they could be reached while also providing the lawyers doing the work with the guidance they will need and perhaps even some small measure of financial security.
I am a third-year law student and serve on the managing board of my school’s Law Journal. I have yet to find a permanent employer for after law school and am unable to tell my family what city—or state—we will need to relocate to after graduation. While I imagine I will find some sort of job by the time I receive my bar exam results, I worry about my ability to contribute to my household after servicing my student debt. While my experience colors my (now very lengthy) comments here, I am not an unfortunate outlier. Many of my friends and colleagues are facing similar circumstances, and many of us are pessimistic about our futures in the profession. I hope that, as concerns legal education and the supply of new lawyers, the conversation within the state and national bars focuses on how to best utilize the existing supply of human capital coming out of our law schools and not adding to an already unsustainable oversupply of new attorneys.
J.D. Candidate, 2013
The Ohio State University Moritz College of Law
NYT Article: http://economix.blogs.nytimes.com/2011/06/27/the-lawyer-surplus-state-by-state/
This e-mail is a response to your “President’s Perspective” column in the September/October 2012 issue of “Ohio Lawyer.” I believe that you should continue your opposition to the creation of a 10th law school in Ohio and I also believe that you should continue to encourage at least one or two of the existing schools to close their doors. Continuing to churn out excessive numbers of lawyers will only continue to degrade an already overcrowded profession. Overpopulating the legal profession will only lead more young professionals to abandon an overcrowded profession that cannot accommodate their aspirations. It will however, be very difficult for you to prevail upon universities to stop selling a product that continues to have a ready market. The universities are selling career training, not careers. There appears to be little thought given at the law schools to the fact that they are selling career training for a glutted market. Many of the graduates will unfortunately be disappointed to find out that the number of jobs awaiting them is easily outnumbered by the number of eager, job seeking graduates. The law schools should cooperate with one another, and with the organized bar, to attempt to rationalize the system in such a way as to ensure that a greater proportion of graduates will at least have the opportunity to begin rewarding careers as lawyers.
The inavailability of legal assistance to the poor is not a function of an inadequate supply of lawyers. It is the lack of funding that makes legal assistance unavailable. No one expects teachers to teach poor children for free. No one expects police officers to police poor neighborhoods for free. There are systems and budgets in place to make education and policing available to the poor. It is not viable to expect lawyers, many of whom struggle with a lack of paying clientele in a down economy and an overcrowded legal profession, to to meet all of the legal needs of the poor through increased pro bono commitments. It is also not viable to expect the problem of unmet legal needs to be met by graduating more law students. Without an increase in funding to address the legal needs of the poor, an increase in the number of lawyers will only increase the number of poor, unemployed, law school graduates. Creating another law school is definitely not the answer. Fully funding legal aid societies and court appointed counsel programs that serve the needs of poor clients will go much farther toward making legal representation available to all who need it.
Eric Sommer, #0066363
Dear Judge Fischer. Congratulations on your becoming the president of the Ohio Bar Association. I have read your recent column and your request for a dialogue. I do not know what institution would like to start a new law school, but we probably do not need it at this time. As far as the issue of student debt, I would like to propose that the law profession begin to consider job placement and debt forgiveness as is currently done with teachers and with doctors. The program can be administered jointly with the law school and the state bar. A base salary should be given and based upon the number of years the person is involved with the program would determine how much of their law school debt is to be forgiven. Good luck.
Dear Judge Fischer:
As a member of the Ohio State Bar Association and a lawyer admitted to practice in Ohio, Michigan and New York, I am responding to your call for answers to the following questions in Ohio Lawyer:
1) Should I continue my opposition to the creation of a 10th law school in the state of Ohio?
2) How can we use the growing number of new attorneys to serve the legal needs of the poor?
My answer to your first question is the nine law schools in Ohio are too many. However, I believe you must break this category down to two subcategories: publicly supported law schools and private law schools.
There are four private law schools in Ohio: Capital University Law School, Case Western Reserve School of Law, University of Dayton School of Law and the Ohio Northern College of Law. If a private institution wishes to open a law school, without any taxpayer support, it ought to be allowed to take that risk. This comports with our capitalist society, and it should be allowed to succeed or fail according to the law of supply and demand.
All five publically taxpayer supported law schools in Ohio, the University of Akron School of Law, the University of Cincinnati College of Law, the Cleveland-Marshall College of Law, The Ohio State University College of Law and the University of Toledo College of Law, are not needed. There should only be four taxpayer supported law schools in Ohio at this time. One of the publically supported law schools should close, and I do not care which one it is. I am a graduate of Ohio State College of Law, who happens to think, as former Dean Strong thought, that the College of Law is too big.
Therefore, you should oppose any educational institution that seeks to open or create another law school in Ohio, particularly if that institution is taxpayer supported.
My answer to your second question is that under no circumstances should you consider subjecting new law school graduates or attorneys to involuntary servitude, as Chief Justice Jonathon Lippman of the New York Court of Appeals has done. His requirement that the poorest, least politically powerful future lawyers should be forced to work 50 hours for another without pay in order to become licensed as a lawyer is unconscionable.
The responsibility for providing the poor with representation in a court of law is upon the citizenry at large. And if the representatives of the people of the State of Ohio, through a lack of intestinal fortitude, won’t ask the public to support this obligation, the legal profession (or any other profession) should not be singled out to provide this service.
The argument of Judge Stuart in the very old case of Webb v. Baird, 6 Ind. 13 (1854) is on point: “…And that any class should be paid for their particular services in empty honors, is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights…. To the attorney, his profession is his stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic. The law which requires gratuitous services from a particular class, in effect imposes a tax to that extent upon such class—clearly in violation of the fundamental law, which provides for a uniform and equal rate of assessment and taxation upon all the citizens.” This was written 11 years before the 13th Amendment to the United States Constitution was adopted.
The 13th Amendment provides: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Article 1, Section 6 of the Ohio Constitution provides: “There shall be no slavery in this state; nor involuntary servitude, unless for the punishment of a crime.”
Mr. Justice Miller, in In Re Slaughterhouse Cases, 16 Wall. 69, 21 L.Ed. 394 (1873), writing for the majority said: “The word servitude is of larger meaning than slavery….” And Mr. Justice Field in his dissent at pp. 90-91 had this to say:
“The words ‘involuntary servitude’ have not been the subject of any judicial or legislative exposition, that I am aware of, in this country, except that which is found in the Civil Rights Act…. It is, however, clear that they include something more than slavery in the strict sense of the term; they include also serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others. Nor is this the full import of the terms. The abolition of slavery and involuntary servitude was intended to make every one born in this country a freeman, and as such to give him the right to pursue the ordinary avocations of life without other restraint than such as affects all others, and to enjoy equally with them the fruits of his labor…. The compulsion which would force him to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to labor for the benefit or pleasure of another, and would equally constitute an element of servitude….”
To paraphrase Mr. Justice Miller’s last sentence, the compulsion which would force a law student, law school graduate or practicing lawyer to labor even for his own benefit only in one direction, or in one place, would be almost as oppressive and nearly as great an invasion of his liberty as the compulsion which would force him to provide service to the poor for the benefit or pleasure of a government agency, and would equally constitute an element of servitude. Mandatory pro bono should have no place in our society. What kind of quality will the poor get by having someone forced to represent them and “denied the fruits of his labor”? I know what quality of service I would provide. I did not go to law school to become a second-class citizen.
If the New York Times reporter was accurate in quoting Chief Judge Lippman, he is reported to have said “The legal profession should not be seen as argumentative….” That is bureaucratic nonsense.
On a lighter note, your retired colleague, Judge Mark Painter, was the best appellate judge in Ohio. When the little green book came, I always read his opinions regardless of the subject matter.
Very truly yours,
James J. Petlow, Toledo
I love the idea of using the President's Page to share not only your opinion, but that of OSBA members. A refreshing change and I applaud your courage to try something new.
In response to your first question, I think we have enough law schools - both in Ohio and the U.S. Two pieces of advice I share with people:
1. Don't go to law school.
2. Don't get married.
While I'm mostly joking about #2, I'm dead serious about #1.
I briefly practiced law after passing the bar in 1994. By 1999, I had found that my true calling and passion was not in traditional law. Since then, I've held several different positions. I am now happily employed in the financial services sector doing regulatory and compliance work.
I'm looking forward to your next article and hearing what the membership had to say.
Thanks for the opportunity to contribute. Keep up the good work!
Dear Judge Fisher:
I just read your article on the issue of pro-bono services, the glut of lawyers and the lack of opportunity for new lawyers. One thought that occurs to me is to offer state tax credits to law firms for 50%, or even 100% of the new associates that are hired. The firms would commit to having the attorney conduct all pro-bono work for a period of two or three years. The salary could be substantially less than what is offered to the regular associates, and there could be an understanding that after the term expires, there is no expectation of continued employment. The associate would have benefitted by having excellent mentoring, and exposure to the joys and burdens of firm practice, and will have developed a small client base with which to start his or her own firm.
I started on my own after one year of unpleasant employment, and a solo practitioner mentored me for the first two years, and offered very cheap rent. It was a very good learning situation, although not very remunerative.
Another idea that I have is to offer an opportunity for new attorneys to “stay” student loan repayment for a period of years during which pro-bono work constitutes an amount in excess of 50% of their employment. That way, the attorney could earn a 20-30 thousand salary, and work pro bono for the other half. Then, the young attorney will have some valued experience for the job market, and will be able to obtain decent employment along with an ability to pay the student loans.
I am grateful that I do not have to face the same economic realities that today’s graduates face.
Patrick S. Corrigan
Managing Attorney, Staff Counsel of The Cincinnati Insurance Company, Cleveland
Dear Judge Fischer,
Although I left Ohio over 40 years ago for the warmer climate of Texas, I still continue to be a member of the Ohio State Bar Association. The following comments are based on your most recent “President’s Perspective.”
Simple economics as well as just plain common sense justify your opposition to creating an additional law school in Ohio. In fact, a persuasive case likely can be made for closing a couple of the existing ones. Even in relatively prosperous Texas the job market for new lawyers is poor. In this latter regard, you may find the article “Mentoring the Next Generation” in the September 2012 Texas Bar Journal relevant to your first question. Based on my personal and vicarious experience, my guess is the national legal employment market may be in the doldrums for quite a few years.
Turning to your second item, this one seems to me to have two parts.
The first is providing the basic training new lawyers need in the various legal specialties required to deal with the problems facing some of the poor. These include, for instance, employment, domestic relations, landlord-tenant, and possibly even criminal law. State and local bar associations can and do offer useful seminars in a wide range of these subjects. Moreover, many volunteer mentors are also generous with their time and knowledge.
Realistically, your second question calls for fiscal resources beyond the ability of the private bar to provide. Since poverty is a societal problem, ideally public money should be available to pay for at least some of the administrative overhead and compensation for the cadre of lawyers needed to aid those of low or no income. But even in better economic times, the historic unpopularity of lawyers would rule out access to the government exchequer. As an aside, I especially feel sorry for trial judges who have unrepresented individuals appearing before them.
My only positive suggestion is for the Association to consider retaining an experienced public relations firm to advise on how to raise awareness of the legal challenges confronting the poor in the hope that knowledge of the extent of this hidden issue and the monetary cost to society will lead to new ideas. If the organized bar can do anything, perhaps focusing on just the legal problems of the newly poor would be manageable. History teaches what can happen to good order when unrest is allowed to develop.
Good luck with your efforts.
Joseph C. Boggins, Austin, Texas