November 1, 2009

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Balancing the Scales

Mentoring Helps Transition from Law School to Practice

By Marie Mischel

November 1, 2009

Putting theory into practice poses a problem for many new attorneys who pass the bar exam. Approximately 500 new lawyers enter Utah's legal system each year and many of them open their own practice, says Utah State Bar President Stephen Owens, but they may not know even the simplest practical legal procedures such as how to take a deposition. New lawyers hired by firms also face difficulties in real-world situations. To combat this problem, the Utah State Bar created the New Lawyer Training Program (NLTP) last December. The program offers one-on-one mentoring to new attorneys. “Law school doesn't teach you the practical realities of practicing law: how to file an appearance of counsel, what an adequate discovery request should contain, what to do if a client can't make a court date, etc.,” says Susanne Gustin, a criminal defense attorney who is serving as an NLTP mentor. As a new attorney in the public defender’s office, Gustin says she was lucky to have experienced lawyers to ask for help, but not every law school graduate has a mentor readily available. Margaret Plane, now a senior city attorney in Salt Lake City Attorney's Office and co-chair of the bar’s NLTP committee, finished her clerkship and then took a position as the only lawyer working for a non-profit organization. “There were a lot of things that I needed to do that I had never learned about, that aren’t taught to you in law school,” Plane says. “Some of them, quite frankly, are based on Utah practice rather than what’s in the rule book, for example. I think something like the NLTP would have helped me learn a lot of those practical aspects of the practice of law because I wasn’t taught them and I didn’t have colleagues that I could walk down the hall and chat with.” The year-long NLTP program is required for all new attorneys who pass the bar exam, as well as those who have practiced for less than two years and have moved to Utah. It replaces the first year of the required new lawyer continuing legal education; the second year of the New Lawyer Continuing Legal Education (NLCLE) requirements remain the same. The program is intended not only to teach new lawyers the practical demands of a law practice, but also professionalism and civility, and it gives them a friend to help them balance the demands of life, Owens says. “Some new lawyers have those things already, but there’s a whole group that doesn’t, including the folks in rural areas and women and minorities, and the folks who are coming in from out of state, who may not know a single practicing lawyer in Utah.” The NLTP matches the new lawyer with a mentor who has been in practice for at least seven years, hasn’t been disciplined by the bar and has malpractice insurance if in private practice. The mentors must be approved by the Utah Supreme Court’s Advisory Committee on Professionalism. They receive 12 hours of continuing legal education credit for serving as a mentor; attorneys are required to have 27 hours every two years to retain their license. The NLTP anticipates that mentors will spend at least two hours a month with the new lawyers under their guidance. The amount of time varies; Gustin says she consults with her mentee on almost a daily basis about matters such as fee structures, how to handle the difficult client and ethical dilemmas. The program should benefit all attorneys fresh out of law school, even those who go to work in large firms, says James Backman, a law professor at Brigham Young University who sat on the NLTP’s mentoring committee and helped draft the mentoring plan. “The nature of law practice is that everyone’s very busy. Feedback may come in certain cases, but more often than not the young attorney does the work and turns in the matter," he says. "It may be reviewed by a senior person in the law firm or they may not. Even if they are reviewed, they don’t necessarily have much time to discuss.” The NLTP, Backman says, is an opportunity for coaching, quality discussion and reflection. While many of Utah’s law firms had mentoring programs in place before the NLTP, these programs sometimes were ineffective, says Rod Snow of Clyde Snow & Sessions, who co-chaired the Utah State Bar’s NLTP committee. He adds that surveys by the American Bar Association show that the primary reason attorneys leave the field after seven or eight years is because they didn’t have a mentor. “A lot of law firms would be shocked to hear that; they thought they had provided a mentor,” Snow says. “But it’s ‘No, you didn’t, you provided a task master.’” Snow thinks the NLTP will work better than the previous in-house mentoring because now new lawyers and mentors must certify that they’ve followed a written plan and must report their progress to the bar and the court. While the NLTP states that a mentor from within the new lawyer’s office is preferred, it suggests the mentor be someone other than the new lawyer’s supervisor. For new lawyers in small firms or who are solo practitioners, the NLTP provides for an outside mentor. Also, mentoring circles of four or five new lawyers and two or three mentors may be formed for new lawyers who aren’t actively representing clients. The mentoring program requires that all new lawyers complete specific tasks, such as reviewing the Rules of Professional Conduct, the Utah Standards of Professionalism and Civility, and discussing ethical issues that regularly arise in the practice of law. In addition, the program requires that new lawyers undertake a number of activities in five elective areas such as advocacy and litigation, tax law and business law. The activities are hands on, such as drafting articles of incorporation, participating in the due diligence process for mergers and acquisitions and preparing UCC filings. These guidelines can be tailored to an individual’s needs. George Poulton, a new attorney specializing in securities at Poulton & Yordan, found that his practice wasn’t covered in the NLTP manual and his mentor’s expertise is applicable only to certain sections. "That has left us with a lot of activities to customize,” Poulton says. The Bar approved his proposal for outline changes, “so it doesn't present a problem and leaves us room to specialize in my mentorship.” Poulton says initially, he was skeptical about the program. But the benefits are more than he expected. “First, it provides a person I can bounce stupid questions off of and discuss issues that senior attorneys in my firm may not have time or patience to discuss. Second, it provides a view into another firm where I can improve my practice by looking at the efficiencies and good practices of other lawyers, he explains. "Finally, Jim [Kruse of Kruse Landa Maycock & Ricks, his mentor] has been very accommodating in exposing me to as much of his securities practice as possible so that by the end of the program I will have a good idea about whether lawyering is a wise career to continue.” Like Poulton, Alan McBeth is a member of NLTP’s first class of new lawyers who started working with mentors in July. Unlike Poulton, McBeth says he hasn’t yet experienced any concrete benefit. “I don't doubt that working with Charles [his mentor, Charles L. Roberts of Workman/Nydegger] will lend me some insights into the practice of law due to his skill and experience,” McBeth says. “However, the NLTP is rigid; so many of the prescribed activities will likely never benefit me much.” McBeth is specializing in patent law at ALG, and says his firm provides excellent mentoring. However, the in-house mentoring doesn't fulfill NLTP requirements. "So every minute I spend in the program dealing with the bureaucratic overhead or completing requirements of dubious worth to my career is a minute lost to the development of my career.” The NLTP formed after Utah Supreme Court Chief Justice Christine M. Durham suggested the bar look at establishing a mentoring program to address not only the difficulties facing new lawyers, but also the number of new lawyers leaving the profession and the perception that professional civility was eroding. The bar committee chaired by Rod Snow and Marilyn Plane studied existing mentor programs and chose Georgia’s as a model. The Georgia State Bar implemented the mandatory Transition into Law Practice program in 2006 after 10 years of study. In their evaluation of the program, more than 90 percent of the beginning lawyers and their mentors said it prepares newly admitted lawyers to become competent attorneys, and they recommended that the program be continued, says Doug Ashworth, the program director. After three years the program was evaluated from the administration and budget standpoints as well. In November, the Supreme Court of Georgia gave the program permanent status. “One reason the program is so highly successful, I believe, is that everybody needs it,” Ashworth says. Representatives in 30 other states and five foreign countries have contacted Ashworth about the program, he says, but Utah sent people to the Georgia Bar center, thoroughly went through the material, asked probing questions and designed Utah's program. “Their new lawyer training material is so good that I’m actually stealing some of theirs,” he says.
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