As soon as I read the Carnegie Foundation for the Advancement of Teaching’s Educating Lawyers (2007)—I knew that I needed to try to implement recommendations in these reports. The recommendation that law school courses include, in doctrinal courses, more practice-related tasks was not so difficult. Having students draft a contract, prepare a pleading, prepare an interoffice memorandum analyzing a legal issue that we had just covered simply was not as hard as I thought it might be. Did it compromise coverage of material? Did it mean I was making the class less intellectually challenging? No, and no. I started small. I soon learned that the “real-life” tasks one can asks students to perform can be every bit as challenging as a well-developed Socratic dialogue. Moreover, the tasks reinforced the material we had covered and did not take away time from other material. I scanned the work product to see where students were “getting it” or missing points. That allowed me an interim assessment and the opportunity to revisit points with which students were having trouble.
The more challenging recommendation from the Carnegie report was to integrate “professional identity formation” into a doctrinal course. First, I had to figure out what “professional identity formation” meant. I am glad I re-read the reports. On my first reading, I thought the report was echoing the call to professionalism so often heard in the legal profession. External exhortations to be professional, to be civil, and the like have—in my observation—a limited effect. By contrast, Carnegie goes far deeper into the dynamics involved in a person’s development of a sense of self and the consequences of failing to (1) identify one’s values, and (2) act consistently with them. Citing classical philosophers, Carnegie showed the rich heritage of philosophical and moral thought that counsels all persons to know themselves (strengths, weaknesses, vulnerabilities) and to recognize their values. Lawyers have a good deal of flexibility in determining the means by which that lawyer practices law in the gray area above the minimum requirements of the Rules of Professional Responsibility. The reports, I realized, were encouraging students to begin determining “what kind of lawyers they wanted to be.” Persons who act consistently with their values tend to be happier.
The next step was to figure out how to incorporate such teaching in my course. I spoke with Michael Hunter Schwartz, Co-Director of the Institute for Law Teaching and Learning and a professor who had co-authored a casebook in Carolina Academic Press’s Context and Practice series, www.cap-press.com/p/CAP, a casebook series designed to implement the Carnegie model. I found that Professor Schwartz included as part of his course a mandatory professional identity journal. Students wrote journal entries, in response to the “professional identity questions” in Professor Schwartz’s and Riebe’s Contractscasebook. I took the same concept and, in my course, had a selection of professional identity questions from which students could choose to write journal entries. They were required to identify any Rules of Professional Conduct applicable (usually there was not a controlling one because the question was a “gray” area question requiring the student to determine how she would handle the dilemma in light of her values). I then asked students in journaling to identify their values, discuss any struggle if any they encountered as they worked through the process, and suggest a resolution.
I was not sure how the journals would turn out. Now that I have used this approach for a couple of years, I can say that reading them has been among the highlights in my professional life. I have found that most students are candid, probably because I assure them I am the only one that will read the entries. Although I see some students who appear unprepared to resolve the questions, those students are ones I encourage to make an appointment to discuss how they can move in a direction that will help them. For the majority, I have seen students reflecting more self-knowledge than I ever expected. I have also noted students struggling with their values, where they will draw boundaries, and considering what safeguards they can develop that will help them in practice. A couple of themes stood out. First, probably two thirds of the students began to realize that they will need a mentor or mentors in practice to help them. Although apprenticeship in the legal profession is not what it used to be, I told students that I never found an experienced lawyer who was unwilling to help if asked by a less experienced lawyer. Being proactive in seeking out help is the attitude I encouraged. (I would ask: “How can you be and advocate for others if you are not an advocate for yourself?) We talked in class about how one would have to be careful not to violate client confidentiality, but that the issue could be dealt with so that the inexperienced lawyer got help. The second theme was that probably half of the students said that they will continue journaling because, although they did not like writing (and reflecting on themselves) at the outset, they realize that the process will help them stay aware of the values they wish to display as lawyers. I engaged the class with both of the above themes and said they were excellent safeguards to help them avoid falling away from any sense of values and professional identity they had developed. I further told them that, if they did not like these safeguards, they would be wise to find some other ones.
For those who wonder whether I grade students on whether their values are consistent with mine (or those in the Rules of Professional Conduct, such as honesty and candor), I do not. I make the journaling exercise 10% of the grade and require only that the students display a sincere effort to reflect on the problems and to write out the process they went through in considering how they believe they would respond.
My hope is that, regardless of what students write in this exercise, they will come out of the experience with a healthy recognition that law practice will challenge their values. I hope that they realize that the choices they make will determine what kind of lawyers they will be—not only as perceived by others, but as they perceive themselves. I do tell them that the lawyers I know who are most satisfied in practice have a strong sense of self—or, in Carnegie’s words, “professional identity.” Time will tell whether Carnegie’ recommendations in this area will have an impact. I am betting on their doing so.
Having found success with the journaling approach, I wanted others to know of one of the most effective techniques I have used to integrate professional identity formation into doctrinal courses.