Special Issue • December 2020

Special Issue • December 2020
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What a Year It Has Been

Revisiting themes from this year's issues as 2020 comes to a close

In this article we revisit three themes from previous issues this year—Clinical Legal Education, Approaching Lawyer Well-Being, and Lawyers on the Board—with thought leaders deeply engaged in these subjects to gauge how their respective areas have developed throughout the year 2020. To each respondent, we posed three questions. Their answers may be found below.

On Clinical Legal Education: Daniel L. Nagin

Daniel L. Nagin is a clinical professor of law, vice dean for experiential and clinical education, and faculty director of the WilmerHale Legal Services Center and Veterans Legal Clinic at Harvard Law School.

How have law clinics adjusted to the events of 2020?

This past year has highlighted the centrality of law and lawyers—and hence clinics—to the most pressing issues we face as a society. Law school clinics do far more than provide a vehicle for students to acquire skills. Clinics permit students to recognize firsthand the awesome power that inheres in our legal system and that gives lawyers a unique role in shaping and re-shaping it. Such power and privilege, clinics also teach, must be accompanied by a responsibility to others, including especially those who are most vulnerable. Whether working on criminal justice reform, health law and policy, the rights of asylum seekers, or countless other issues, clinic students have been able to engage the colliding crises of our time and endeavor to remake the world for the better. Clinics have always promoted the profession’s duty to the larger society. This year, that public service ethos—and the bonds of mutuality between the profession and the public—has energized law students and clinics in particularly profound ways.

This moment of crisis has also revealed new possibilities—new ways to think about the impact of eviction on families and neighborhoods, the role of race and racism within our institutions, the function of jails and prisons, the policies that govern food access, and the mechanisms to keep small business afloat, to cite just a few examples. Clinics have responded to this moment by leveraging their expertise and seizing opportunities to reconsider how longstanding legal problems and remedies are framed.

Necessary to all this work has been the clinics’ embrace of new ways of practicing law. From Zoom hearings to FaceTime client interviews, and from sharing documentary evidence over WhatsApp to conducting community legal workshops via Facebook live, clinics have used technology tools in ways and to an extent that would never have been imagined a year ago.

What have you found the most challenging in leading HLS’s clinical programs during this unprecedented time? On the flip side, what have you found encouraging?

It would be a mistake to say that any one person, or even small group of people, leads HLS’s clinical programs. Our over 40 clinics and student practice organizations each have their own terrific group of leaders and team members. Our program—which spans 22 in-house clinics, 13 externship clinics, and 11 student practice organizations—continues to thrive because of the strength of these teams individually and collectively.

Among many challenges this year, an especially large operational challenge was the very sudden shift to remote teaching and lawyering last March. Looking back on that time now, it is simply astonishing how quickly basic assumptions about how one teaches and lawyers were upended. At that same moment, of course, the legal needs of the community were only growing and becoming more urgent by the day—which placed additional pressures on our clinical program to remain accessible and responsive. And all this unfolded against a backdrop of simultaneous disruption in the lives of clinical community members with school age children, with health vulnerabilities, and with unique family obligations.

In the face of these challenges, the clinical community has demonstrated astonishing creativity, resilience, and determination. Clinicians improvised and found ways time and again to meet the needs of each other and their students. It is simply extraordinary how swiftly—and thoughtfully—clinics incorporated pedagogical, technological, and logistical innovations into their work.

And clinical students were no less remarkable. As they faced their own set of individual and sometimes familial challenges, students kept a relentless focus on meeting the needs of their clinic clients and responding to the deepening disadvantage and inequality the pandemic has imposed. Our students have been resolute and fearless throughout. The legal profession is in very good hands.

What lessons from 2020 are likeliest to carry forward as you plan for the future of law school clinics?

The list of lessons grows by the day. If I had to name just a few, it would certainly be important—and obvious—to include technology’s role on the list. By technology, I am referring to two things. First, technology-enabled law practice—that is, how technology can facilitate the efficient and effective delivery of legal services. And second, technology law as subject—that is, the legal frameworks that govern access to and the use of technology in general, which is the focus of our CyberLaw Clinic. Looking ahead, we have a unique opportunity to focus anew on how to equip our clinical program with the technological tools that will best prepare students for 21st-century legal practice and how we can continue to explore the role of technology and technology law in an array of clinical practice areas. And we need to do all that while bearing in mind that many of the people who most desperately need legal help have limited or no access to everyday technology tools, such as the internet.

A second important lesson from 2020 relates to institutional flexibility. One of the genuine highlights of an enormously trying year was the way in which the Law School and individual clinics were able to pivot to respond to an emerging legal need, to develop new partnerships and externship opportunities, or to build a new area of practice based on student interest. As a program, we have been especially nimble this last year to purse new pedagogical and service opportunities as the world around us has evolved so rapidly. These new offerings underscore the necessary interconnectedness of the clinics to real-world law practice and community need. Going forward, our willingness to experiment, to try new things, and to be responsive will serve us well.

Revisit the Issue: Clinical Legal Education

On Mental Health and Well-Being: Jarrod F. Reich

Jarrod F. Reich is a professor of legal writing and lecturer in law at the University of Miami School of Law and author of “Capitalizing on Healthy Lawyers: The business case for law firms to promote and prioritize lawyer well-being.”

You are a teacher of many soon-to-be lawyers. How have the events of 2020 impacted their well-being, particularly as it relates to their legal education and beyond?

Law school negatively impacts students’ mental, emotional, and physical health in the best of times. Over the past year, the stressors of law school in a typical year have been exacerbated in many ways. First-year students have had to navigate the stress and uncertainty of 1L year while doing so in a largely—if not exclusively—online environment. Upper-class students are trying to navigate a job market at least as uncertain as (if not more than) during the Great Recession. Recent graduates have had to deal with last-minute bar exam changes as well as changes to their anticipated firm or organization positions, from changes in start dates to furloughs to outright elimination. While law school faculties have been trying to adapt their classes to the online or hybrid models, some classes simply have not translated well into the new platforms, making it difficult for teachers to teach and students to learn. More generally, students are finding it difficult to concentrate on their studies and job prospects when they are worried about their health and the health of their loved ones. Thus, overall, students have felt an even greater sense of loneliness, isolation, and stress because of how the events of 2020 have impacted their law school experience and their lives.

However, notwithstanding the challenges this year has brought, students for the most part are making the most of it. I have seen greater resilience and senses of hope, gratitude, and motivation among students over the past year than I see generally. For instance, I have been consistently inspired by my first-year students’ ability to persevere through the semester in these uncharted times; if anything, the pandemic may have helped to put the stresses of law school in perspective for many of them. Additionally, I have been impressed by so many students using their education to advocate against systemic racism, police brutality, LGBTQIA+ discrimination and persecution, voter disenfranchisement, and the pervasiveness of other evils of our society of which 2020 has reminded us. In some ways, then, the worst year has brought out the best in our students.

How have law firms responded to well-being demands in 2020? Is there a renewed focus on wellness today? Will there be going forward?

The answer to the first two parts of this three-part question is “yes and no,” and the answer to the last is “it depends.” I think to some extent firms have recognized that the “new normal” of working from home and holding meetings, trials, and arguments over Zoom have caused firms’ management teams—at least in the short-term—to be a little kinder toward and forgiving of themselves and their lawyers. I think that some of that comes from management feeling the challenges for themselves. When they are working from home while simultaneously ensuring their children are engaged in their Zoom school and keeping their pets from interfering with their work, they can empathize with their associates, junior partners, and staff experiencing the same thing. In that sense, now there is an understanding of and compassion for lawyers’ struggles. In addition to or perhaps because of that attitude, I have heard anecdotes of firms making changes in light of the pandemic that can positively impact lawyer well-being. For instance, some firms—either institutionally or on ad hoc bases—hold well-being-related programming or simple periodic “check-ins” over Zoom. Some firms have relaxed billable hour requirements. So all of this is good.

However, the answer is also partially “no” for a few reasons. First, and most obviously, firms have reduced compensation, cut legal and nonlegal staff, and cut or eliminated Summer 2020 and even Summer 2021 programs. Second, it is difficult to say whether some actions firms have taken is due to promoting lawyer well-being or because of financial realities—after all, firms are primarily profit-driven enterprises. Additionally, things that could help junior lawyer subjective well-being—such as meaningful work, training, and mentorship—have been severely limited if not nonexistent during the pandemic. I have heard stories of firms with partners who are keeping work for themselves to increase their profit margins, which not only keeps work from non-equity lawyers, but takes their time away from mentoring and training those junior folks.

As to the third part of the question, I think it is too early to say how the pandemic will impact firms’ focus on well-being going forward. There is some hope that the pandemic will push firms to rethink the way they practice, but we lawyers—like everyone else—are creatures of habit, and it’s entirely possible (if not probable) that they will return to their previous models as soon as practicable.

What do you see as the most challenging aspects of addressing well-being in law firms going forward? And, on the flip side, what gives you hope?

The most challenging aspect of addressing lawyer well-being is to resist returning to “business as usual” once the pandemic is under control. This means returning to the very models that exacerbate lawyer distress as well as devising other ways that prioritize short-term profits over long-term sustainability though promoting lawyer well-being. The Great Recession served as a sort of reckoning for many firms, and for a short time firms did change the ways they operated that had some positive impact on well-being—smaller recruiting classes, a focus on lawyer development, greater commitment to pro bono work, and alternative billing and compensation structures. However, once the economy was on the upswing, firms reverted to their usual operating models. It will be a challenge for firms not to repeat that pattern again. Additionally, firms may look to other ways to maximize profits in what likely will be a difficult economy based on the wrong lessons from the pandemic. For example, firms may be tempted to significantly cut nonlegal staff and incoming associates that have previously been furloughed. In addition to the impacts these no doubt will have on those individuals, remaining lawyers and staff will feel the impact as they will be forced to do more work or work that prevents them from growing and advancing. Firms may look to cut the cost of training and mentoring, which will stunt the development of junior and mid-level lawyers. Further, there is a fear that in a weakened economy the cost of well-being programs may be among the first casualties.

However, I do remain hopeful. My hope primarily comes from the junior and incoming lawyers, and my belief that they will be the ultimate “clients” to whom firms must cater. Younger millennial and Gen-Z folks prioritize their well-being in ways the older generations do not. Their experience in law school or in the beginning of practice during the pandemic no doubt reaffirmed for many of them the importance of their well-being and work-life balance in general. Consequently, the extent to which firms promote and prioritize the well-being of their lawyers will be a principal—if not the primary—consideration of these students and recent graduates when choosing to work or remain at a firm. Firms looking to attract and retain the best and brightest students and junior lawyers will have to meet that demand; firms that do so will not only achieve their goals, but also will have a cohort of healthier lawyers and enjoy greater long-term profitability and sustainability.

Revisit the Issue: Approaching Lawyer Well-Being

On Lawyers and Board Service: Maria C. Green

Maria C. Green is an independent director on the boards of the Tennant Company, WEC Energy Group, and Littelfuse. For more on Green’s journey as a lawyer and a board director, see “Lawyer-Director or Director-Lawyer?

Given the challenges of 2020—the global health pandemic, the economic fallout, the social justice movements—how has board service changed, both functionally but also conceptually?

I think that initially many boards were in crisis mode. First and foremost was the health and safety of employees—we worried about how to keep them safe at work by testing, social distancing, and reordering the workplace to keep it safe. Also, there were concerns about sustaining productivity for employees working remotely, as well as concerns about cyberattacks on the company’s systems. Second was how to preserve capital during these challenging economic times. We discussed increasing borrowing, suspending dividend payments and share repurchases, and salary cuts for management and the board as well as suspending contributions to the 401(k) program. Many of these changes were implemented for some period of time. Then we turned to more long-term issues such as how can we use this time as a reset for the business and create real transformational change for the business and industry.

What about board service has become more challenging, both individually but also more generally? And, on the flip side, what has been positive?

For me, the biggest challenge was the amount of time involved. Being on three corporate boards, I was in almost daily meetings on the financial, logistic, and people issues facing the company due to COVID-19. Later in the summer, with the murder of George Floyd, each of my boards grappled with the appropriate response and how to advance issues related to racial equity and social justice. Frankly, as an African American board member, each of my CEOs leaned heavily on me in trying to craft appropriate responses to these issues. For me, that was the “good news” story because it felt like these issues were finally being addressed in a meaningful way.

What changes about board service do you think are here to stay going forward?

Going forward I think boards will continue to hold some (but not all) meetings virtually. The camaraderie that develops when boards meet and socialize in person is crucially important—especially when a board is facing a crisis—but not every meeting needs to be face to face. Also, the importance of ESG (the consideration of environmental, social, and governance factors in thinking about sustainability) is here to stay, and boards will need to understand how to measure ESG in ways that are meaningful to the business model as well as making sure ESG is imbedded in the company’s strategy.

Revisit the Issue: Lawyers on the Board

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Special Issue • December 2020 Special Issue • December 2020