Pardon the Disruption: Let the Externs Get Paid

March 6, 2014

Business people working in groupLast month the American Bar Association’s (ABA) Section of Legal Education Standards Review Committee recommended that the organization reverse its policy forbidding law students from being paid to participate in for-credit externships. That’s good news both for law students and our profession as a whole. As we mentioned in earlier posts here and here, it’s time for the legal industry to re-evaluate antiquated views about the ability of law students to perform meaningful work. This post explains why the ABA should adopt the panel’s recommendation (side note: it’s arguable that unpaid externships are illegal anyway), and how law schools should go a step further to develop and manage relationships with local law firms and government entities to establish a revolving door of paid externships.

The ABA’s Accreditation Standard 305 prohibits law schools from granting credit “to a student for participation in a field placement program for which the student receives compensation.” In other words, law students can’t get paid if they’re getting school credit. But some commentators have pointed out the ABA rule could be at odds with the Fair Labor Standards Act of 1947, as many legal externships wouldn’t survive the Department of Labor’s unpaid internship test. The rule states that for an unpaid internship to be legal, the services rendered by the intern must provide no value to the employer.

Boston attorney John F. Tocci sits on the Massachusetts Bar Association’s Labor and Employment Section counsel and is skeptical of the idea that many legal externships are “not of significant value to the employer.” He said, “Law firms typically want their interns to produce work of value, so they can judge the interns’ capabilities. Because of that, it necessarily fails the unpaid intern test of the Department of Labor, even though they are getting course credit for this work.”

On the other side, the Clinical Legal Education Association (CLEA) responded to the ABA’s panel’s recommendation by stating, “To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.”

The CLEA’s argument rests on the supposition that because they don’t pay law students, employers currently use an academic-oriented approach to their externship programs. Setting aside an evaluation of the premise’s validity—and as we’ve previously discussed—post-1L law students don’t require additional extracurricular academic study; they need practical and engaging experience with the realities of day-to-day lawyering.

In our November 2013 post we discussed how law firms have groaned for years about attorneys entering the workforce without the skills necessary to actually practice law. Paying 2 and 3Ls for their time would heighten law students’ sense of responsibility to mastering their practice, while alleviating some of their financial strain. These are more realistic goals in the current market, and law schools should go further to help their students. Establishing ongoing paid externship arrangements with law firms, businesses, and government entities is a good place to start.

We’re seeing this in Colorado where CU Law and tech giant Cisco have navigated current ABA restrictions and developed a program that allows students to get paid while earning course credit. Starting in June 2014, two 3L students will join the company for seven months in a not-for-credit externship. During their tenure, each student will earn $1,400/week (adding up to $73,000/year) and handle real casework and interactions with clients and supervisors. Come the fall semester, Cisco will foot the tuition bill and offer a supervised independent coursework study. Once their tenure ends, students will land in the middle of their third year with a practical skillset and hopefully—as Cisco has aptly noted—some savings.