In the midst of an otherwise interesting post about the pedagogy issues surrounding the timing aspect of law school testing, Sam Bagenstos at PrawfsBlawg slips in this factor that stopped me dead.
We talk about accommodations for people with physical disabilities, vision disabilities, and, of course, learning disabilities and ADHD. It won’t surprise anyone that the accommodation that generates the most discussion is the provision of extra time to take an exam. In fact, my casual empirical conclusion is that testing accommodation is the area of disability law that draws the most interest from both students and faculty at law schools across the country.This isn’t a discussion of extra time testing accommodations in junior year (which would be contentious enough), but in law school. The concern Sam is discussing is the necessity/fairness aspect from the perspective of other students and faculty. My concern is completely different.
First, many students and faculty believe that everyone would benefit from extra time on their exams, so that even for people who legitimately are diagnosed with learning disabilities the accommodation gives them an unfair advantage.
I’m pretty sensitive to the needs of those with intellectual challenges, and the right (and societal necessity) of providing them with an education. I’m strongly in favor of accommodating disability in order to obtain that education. But when it comes to being a lawyer, the desirability of providing accommodations is trumped by the ability to fully, competently and ethically serve clients.
Uh oh. Where’s the empathy? It’s there. It just favors clients over disabled wannabe lawyers.
Sam discusses that one of the pedagogical purposes of timed exams is to test processing speed, the ability of a law student to promptly identify issues and arrive at a viable analysis. There is a damn good reason for this, as much of what we do demands that we are not only capable of coming up with the right answer, but doing it when it counts. An objection a day late helps no one.
No, speed isn’t the only quality a lawyer needs, but it remains one of them. As lawyers are licensed as generalists, capable of being trial lawyer as well as pedantic advisor by virtue of our ticket, we lack the right to put people into the position of lawyer who are inherently incapable of fulfilling a requirement of the job. It’s not that we don’t feel badly for those who truly want to be lawyers but, as a result of a learning disability, can’t perform, but that our professional responsibility is to put clients ahead of self-interest, and that includes the intellectually challenged.
There are a host of arguments (or questions) that make my somewhat simplistic presentation more difficult. Yes, there are things that lawyers do which don’t require speedy processing, but as long as a lawyer is just as entitled to try a case as write a contract, he must be capable of doing both. There is no right to be a lawyer. There is a right of a client to expect his lawyer to be competent.
What of physical disabilities? They are somewhat different when they’re flagrant (so the client can see and decide for himself whether to use that lawyer to represent him), but what about hidden physical disabilities? That’s a tough one to address generically, but the basic rule should apply, that if a law student isn’t capable, physically or intellectually, of performing all the functions of a lawyer, then he shouldn’t be a lawyer, which means it shouldn’t be accommodated.
Reaction to my position in the comments to Sam’s post went from political correctness to disturbing when it was argued that attending law school and, ultimately, becoming a lawyer, should be considered an entitlement for the disabled.
Apparently, the commenter, Melissa, has a very different definition of talented, which includes law students too disabled to practice law. That this may be the view of a student, particularly an intellectually challenged student, is understandable. That this doesn’t seem problematic to lawprofs leaves me to wonder how many people are walking around as lawyers who required double time on exams because they were too slow in processing to take a test without accommodations?I don’t agree that a disabled student who has demonstrated she is capable of successfully completing law school should be prohibited from attending solely because she will be too disabled to practice law once she graduates.
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But if you are correct that our primary concern should be for our students’ future clients, then we shouldn’t be keeping any group of talented people out of the profession.
And I wonder why young lawyers claim experience they don’t possess, or omit salient details from their resume like their year of admission or graduation.And if an associate’s use of adaptive software to generate documents doesn’t impair his ability to represent clients in any way, then how does the fact that he required bar exam accommodations (to enable him to take the examination using the software), along with the fact that his disability isn’t one you consider “flagrant,” establish an ethical obligation that he make some disclosure to his clients? Which ethical rule, exactly, is he violating if he fails to make the disclosure? How are his clients being deceived?
There’s an argument to be made that lawyers who lack the capacity to perform in the courtroom because of some inherent disability that required accommodation should still be allowed to be lawyers, provided they limit their services to those things they can do despite their limitations. Of course, if the lawyer is slow and bills hourly, another issue is raised, but that can be accommodated as well.
But how do you stop the slow lawyer from walking into court? How does the client know that his lawyer is too slow to do the job? And how can we even begin to take the argument seriously when the reaction to putting the client first is “how are his clients being deceived” when the slow lawyer conceals material facts from his client?
There are physical disabilities, intellectual disabilities and ethical disabilities. None of them trump the duty to competently serve clients, no matter how much someone wants to be a lawyer. And to the extent this becomes patent to a lawprof, other testing issues no longer matter.
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While I tend to agree with you, our concerns may be somewhat misplaced. So far, most of those graduating who are too disabled to practice law are teaching at and running law schools.
How else can you explain this?
Would anyone seriously argue that such accommodations need to be made for surgeons, nuclear power plant workers, or others in positions where mistakes due to “slow processing” can have tragic consequences?
Based upon your argument Stephen Hawking, if he ever so desired, should never become a lawyer. I’d rather retain Professor Hawking than someone who knows how to write a law exam, but has no sense of justice, empathy, emotional intelligence or social skills.
My argument relates only to people with disabilities that (a) impair their ability to perform the function of a lawyer and (b) are not obvious to a client. If the disability is apparent, then the client is not deceived by retaining the lawyer despite the disability. If that’s the client’s choice, so be it.
Many lawyers suffer from mental and psychological disabilities. Some are congenital, others develop non-physical conditions before they become lawyers; while still others manifest these conditions caused or contributed by the mental stress and emotional toll of the practice of law. While I understand your concern for maintaining competence and protecting clients, I am not so sure that differentiating between patent and latent disabilities is a valid distinction to draw. There is also equal protection and non-discrimination laws to consider. Prohibiting someone from joining the legal profession due to a disability is as problematic as forcing someone to resign due to the same disability; albeit developed afterward. Accomodation is a function of many factors.
Scott’s argument assumes that a law school exam either reflects the practice of law or is at least closely analogous to the practice of law.
None of the exams I ever took bore much relation to what I do as a lawyer. I think on my feet all the time, but if a new potential client sent me a paragraph-long email summarizing their problem and demanding I provide a thorough professional opinion within the next hour, I would respond that they are asking me to do something unprofessional and unethical.
Damn, I’ve been meaning to write something similar but haven’t had a chance. Very well put.
I’ve thought about this issue for a long time, when a buddy of mine was given more time to take his final exams due to his ADHD. I believe things like ADHD are real, and I empathize with people who have it.
My buddy later failed out of law school and became a successful Realtor. He says it’s the best thing that ever happened to him – he’s great at marketing, branding, and schmoozing, but terrible at paying attention to details. And there’s nothing wrong with that – his talents were simply suited for another profession.
Clocking in at 5’5, I came to realize early in life that playing professional basketball isn’t in the stars for me. It’s just not. And while I might learn the game inside and out, and hit 3 pointers, there is nothing that will overcome my physical height limitation. It is what it is.
In the same vein, law isn’t an appropriate profession for everyone. “Sorry Your Honor. I have a lot of trouble paying attention due to ADHD. I know I should have objected to that teastimony, but I trailed off. Since I have ADHD, I should get a do over.”
And if that objection is deemed waived, who gets screwed? Yep. The client.
And if it is not deemed waived, then the other party is prejudiced becaues the disabled lawyer is getting special treatment and playing by a different set of rules.
Law is competitive by nature. Not everyone can get a gold star.
It’s the concept of giving someone special treatment.
“Judge, I want an additional 5 minutes for my opening statement. I have ADHD, so it’s hard for me to collect my thoughts.”
First off, if that’s the case, should the disability be disclosed to the client? If the judge says “No, that’s ridiculous”, did the client retain a lawyer who will put their interests at a disadvantage? Should someone be practicing law if they’re not capable of being as good as their opponent without special treatment?
Second, how is it fair in the adversarial process to give one party special treatment because their lawyer is disabled? There are times when I have refused to grant extensions to stuff becaue it’s in my clients best interest. “You blew the 10 day notice of default deadline, I’m taking a judgment for non-pros, file a motion to open if you want.”
It’s important that everyone has to play by the same rules. If you can’t play by those rules, then you’re not fit to play the game. Sorry.
I’ll use a sports analogy. At the professional level, the best players make the team. The players who can’t help the team don’t.
Why? Because the coach’s only goal is giving the team the best chance at winning hockey games. It’s not about makiing the players feel good about themselves or giving everyone a chance to play. It’s about winning. Maybe back in grade school it was about self esteem, but at this level it’s a different ballgame.
As lawyers, we’re playing at the professional level. And we’re not playing for a Stanley Cup, but for our clients’ interests. If we’re not good enough, it’s the clients who suffer. Just like if an athlete isn’t up to the task, the team will suffer.
The people who are competently able to help their clients should get to play. Those who aren’t should not.
There are other professions out there where your skill set might be more appropriate. Many of my friends who didn’t make it through law school are doing just fine in other professions.
You jumped right to the example of a trial lawyer. Most mental disabilities would indeed render someone unfit to serve as a trial lawyer, because the job demands a quick wit.
How about a real estate lawyer? How often would ADHD really impair their ability to represent the client? The most time-constrained thing they do is negotiate a deal, and any party to a deal can say “I’d like to take 5 minutes.”
What about a bankruptcy filing attorney? There are plenty of lawyers out there who, for between $250 and $1000 will gather all your paperwork and make sure your bankruptcy filing is accurate and compliant, and after that the trustee takes over. Is it really a problem if they take 3 hours rather than 2 hours to write the petition?
What about a research clerk to a criminal defense firm? Nobody outside the firm attorneys will know or care about the speed at which they work.
I can hear the objection: it’s a generalist license. Baloney. We call it that, but it’s not. It is plainly negligent for a lawyer who has never tried a case to defend a homicide trial. It is plainly negligent for a lawyer with no PI experience to take on a birth injury malpractice case. A JD is a pro forma generalist degree, just like an MD. A dermatologist can’t and won’t just replace a brain surgeon one day, though they both technically have the same MD and medical license.
Disclosure to the client brings with it a slippery slope of disclosing everything about a lawyer’s life. Should a lawyer have to disclose to a client if they’re going through a divorce? I assume most lawyers would vehemently argue “no,” though the issue plainly affects the lawyer’s judgment, temper, and attention.
If a license to practice law was limited to those niches where a lawyer could provide competent representation despite a disability, I would agree with you completely. But that’s not how it works. Once someone with an intellectual disability gets his ticket, he is entitled to be a trial lawyer, if that’s what he wants. Bad choice? Sure, but there’s nothing to stop him.
He won’t be successful? There’s always indigent defense. What about real estate? What about when real estate closings go south and they have to pick up a buck? Unless and until disabilities can be matched with limits, clients can’t be assured of competence. And clients come first, way before the desire to provide people with disabilities every opportunities. I’m all in favor of accommodating people with disabilities, but not at the expense of clients.
If we demand lawyers be competent at all possible tasks to be lawyers, then we’ll have no lawyers. Have a stutter? Insomnia? Damaged vocal cords? Then you can’t be a trial lawyer, because it’s all about talking all day long, and so you can’t be a lawyer.
Unless we set up a new system of licensing-by-practice-type, which nobody thinks we should do, then we have to accept the generalist license as being nothing more than representing minimal acceptable level of understanding of the law, and not a certification of the ability to practice in all areas. How would you do if we dropped you right into the Vaccine Court? You’d get killed, and that’s fine: you don’t go near there.
It’s really not that difficult to apply the concepts to specific instances. Do you need extra time, Max?
I would have thought you would have some concern for the clients rather than take the knee-jerk politically correct position for the disabled lawyers. After all, isn’t their right to practice law despite the inability to do so more important than some innocent defendants getting fried in the electric chair, Max?
Max, think about it from a small law perspective.
Joe Lawyer goes to law school. He’s a little bit slow, but he makes it through thanks to accommodations. Joe manages to graduate, towards the bottom of his class. He passes the bar, but only because they held his hand.
Joe’s unable to find a job right out of law school. With so many qualified applicants, no one bothers to look at Joe’s resume. He’s smart enough to use Google and finds Solo Practice University. By jove! That’s it! Joe’s gonna open a solo practice. He can do it! He’s good enough! Sure, Joe has no money in the bank, but he’s encouraged by Rachel Rodgers, Susan Cartier Libel, and the rest of the gang. He’s read the Foonberg book.
Joe didn’t realize just how hard starting a solo practice really is. The rent is due, his mortgage is due, and he’s out of cat food. He looks at his operating account, and it’s got $350 in it. Not even enough to cover his rent for the month, cell phone, telephone, or internet.
Suddenly Joe gets a call:
“Hey man, I read your advertisement on Craigslist. It says you’re available 24/7, so I called you.” (Joe put several free ads on Craigslist to try and find clients).
“Look, I’m desperate. I’ve been charged with some serious drug crimes and there is a hearing tomorrow. Can you help me out? How much would it cost?”
Joe thinks to himself for a second. “$1500 because it’s short notice.” Joe has no idea what kind of hearing is happening tomorrow – all he knows is that $1500 will keep the lights on this month. He needs this.
“Sure!” The client is delighted to have found someone willing to help out on short notice. “You don’t mind if I pay cash, right?”
Joe doesn’t mind getting paid in cash. Not even a little bit…
I hope this doesn’t come as a slam to solo practitioners, it’s not meant to be, but there are a lot of lawyers out there who can hardly pay their rent each month. Do you think they’re going to turn down work they’re probably not equipped to handle if it means keeping the lights on? Do you think they’re going to say “Look, client I must be perfectly honest with you. I have really bad ADHD and I don’t think I would be good at trial work. So I’m going to send you to my buddy who does a lot of this stuff.”
Moreover, there is no ethical reason that they have to decline the representation. A law license is still general. 9/10 Joe Lawyer takes on the case, does a crappy job, and keeps his lights on.
That is why lawyers should have to disclose their disabilities to clients, in my opinion.
Max, what about the lawyer who graduates at the bottom of his class, passes the bar on his second try without accommodations, and hangs out a shingle as a similarly incompetent solo?
Is it the few hours of extra exam time that really make the difference between a competent lawyer and an incompetent one?
The point isn’t that this will weed out every bad lawyer, or even that students with disability will make “bad” lawyers in a limited sense. The point is that when someone goes to law school (this is important, as it is before they are a lawyer, not afterward) with a latent disability that precludes their ability to fulfill the functions of a lawyer, they should not be accommodated, but find a different career.
The point is that clients come first. The point is that it won’t solve all lawyer competency issues, but students shouldn’t be passed along into the profession when it’s known in advance that because of their inability to process timely that they cannot perform, and their client’s may never know that they’ve got a lawyer who inherently can’t do the job.
The question of whether other professional trade schools — specifically medical school — allow for similar accommodations for slower students. If medical school doesn’t, then I think that tells us all we need to know about what law professors and law admin think about clients.