Thursday, February 3, 2011

The Street Lawyer: I Come to Bury, Not Praise Professionalism

The Street Lawyer is the Cultured Barrister’s necessary counterpart. Offering a viewpoint sometimes at odds with CB’s, the Street Lawyer takes a no-nonsense approach to the realities of law practice. Sometimes cynical, usually irreverent, and occasionally serious, the Street Lawyer welcomes your feedback. 

How does one maintain one’s poise and decorum when writing about the beginning of the end of the professionalism requirement? 

I guess we’ll never (be required to) know. 

This week, the Board of Continuing Legal Education announced a proposed amendment to Rule 3(b), which would eliminate the much belly-ached and bally-hooed 2-hour, “live” professionalism CLE requirement—effective July 1, 2011.  Could you hear the collective sighs ringing from courtroom to courtroom?  That’s right . . . it was only a dream.  You don’t have to talk about feelings anymore, okay?  You don’t have to “participate.”

The Board received lots and lots of responses from those of you in VT Bar-land letting them know that it’s time to do away with professionalism . . . err . . . the mandatory kind, that is.  The Notes to the proposed amendment sum it all up quite nicely.

First, the “live” aspect of the requirement was a bit cumbersome for the out-of-staters.  They were “having great difficulty” finding approved courses outside Vermont.  It’s true, we’re the only state where professionalism still exists, but still you would think there would be some oasis of civility, maybe in Oregon.   In order to accommodate our out-of-state friends, the “live and participatory” melded into “via teleconference, interactive TV, or online.”  And we all know how well lawyers do with technology. I think we can say that video killed the professionalism star.

But then the Board ran into some administrative difficulty, too.  After all, what’s the difference between ethics and professionalism anyway?  (Sung to the old Cole Porter tune of, “I only want to know what I have to do, not what I should do.”)  And how on earth does one teach attorneys not to abuse substances and still be honest and nice to each other?  Well . . . apparently these are issues “better left to attorneys to address on their own.”  Consider it done.  Peter, Can we have drinks after tomorrow’s deposition?

But in other attorney self-government news, what’s going on with the clerkship requirement?  Some of you might know that the Roundtable on the Profession (the people who brought you the professionalism requirement) is working with the Board of Bar Examiners to re-evaluate the Clerkship Requirement.  A working Committee just put out a thorough report outlining the history of the clerkship, ultimately likening it to a “vestigial tail” that’s steadily evolved over the course of 300 years to become less and less necessary or relevant to competent law practice.  Obviously, the admitted-set moves much more quickly for change when it comes to having to drive to a CLE and share stories, than when a change might stem the tide of free, law-school trained (or sometimes experienced!) labor for three-month stints. 

All this young Street Lawyer can say is, go YLD, go!

—The Street Lawyer


  1. I honestly think the clerkship requirement is one of the few things that makes sense in the whole process. Law school did not teach me how to practice law; the bar exam did not teach me how to practice law. At least the clerkship has some relevance in practice. I don't think it should be required for everyone, but for fresh-out-of-law-school avocats bébé, it's probably not such a terrible idea.

  2. YLD, a/k/a SCOV Law:

    The clerkship requirement is inscrutable, particularly as it impedes hiring attorneys from other jurisdictions for positions here. There is nothing about Vermont law that is so alien to the rest of the common law world that anyone would need three months of indentured servitude to learn.

    My own view is that the difficulty of practicing in Vermont state courts is that little is written down: trial decisions are not regularly accessible, and the lack of intermediary appellate court means that there is very little decisional law on questions of procedure or evidence.

    Instead of continuing to cultivate a dubious oral formulaic tradition of practice that varies according to the mentors involved, Vermont might abolish the clerkship requirement and replace it with:

    (1) mandatory carriage of malpractice insurance, and

    (2) a carefully compiled volume that outlines the basics of practice -- sort of a cross between a federal district court's local rules and a hornbook, or the combination of the Connecticut Practice Book and the Mass Bar Association's Traps for the Unwary.

    I would gladly help with the grunt work necessary to compile such a volume if it meant that the three-month waiting period would go away.

    All best,
    Dan Barrett

  3. Dan,

    I agree with you that the clerkship requirement makes little sense for attorneys from other jurisdictions. I was paid during my clerkship, so that colors my perspective a bit. As to your first suggestion, I wasn't even aware that you could practice without malpractice insurance.

    I think a basics manual is an excellent idea. I would be happy to help with the grunt work as well. Such a volume would be an invaluable resource--regardless of one's position on the clerkship requirement.

    Although we have some ties to the YLD, SCOV Law is its own entity. (We don't want to drag the YLD's good name through our mud.)