Joe chats with Johnnie Nguyen, the National Chair of the ABA Law Student Division about the wide-ranging issues facing law students in the midst of the pandemic and how the ABA is addressing those concerns.
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Above the Law – Thinking Like A Lawyer
Law Students And Dealing With COVID-19
Intro: Welcome to Thinking Like A Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello, welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. We are recording yet again this week. Good to be back and chatting with everyone. We have got a new microphone now, so hopefully this sounds a little bit better than some of our last few podcasts, and with all that said, I’ll first want to thank our sponsor for the show, Logikcull.
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Well, as I’m sitting here in New York preparing for a May snowstorm apparently, which is not something I ever thought I would have to say. My guest is, yeah, from Colorado, he is more prepared for summer snowstorms. So tell me what I should be looking forward to there, Johnnie?
Johnnie Nguyen: Well snow, snow, random snow that you don’t expect can be a little scary, but I don’t know if you drive or walk around New York mostly but as long as just stay warm and stay dry, you should be good.
Joe Patrice: Fair enough, and that’s Johnnie Nguyen, he is the Chair of the Law Student Division of the ABA and he is here today. We’re going to chat about some issues facing law students and the recently graduated, which is his purview. So I guess first, tell us a little bit about the ABA’s Law Student Division.
Johnnie Nguyen: Yeah, sure. Well, first, Joe, thanks for having me on here. I’m really excited to chat with you and hopefully reach out to pre-law students, law students or attorneys.
Yeah, a little bit about the ABA Law Student Division, we have been around for, I think close to 30 or 40 years now. Essentially what we are is an entity within the ABA and we represent the largest population of the ABA’s membership which composes of 110,000 ABA-accredited law students, and what we really do is represent the interest of the student body before the ABA as the ABA is always passing policies that affect law students and the future of the profession. And so, my role as Chair of the Law Student Division is I lead a council in pushing policies, pushing programming, anything that would serve the best interests of law students, while also maintaining a conversation and the bridge between all the law student leaders, SBA Presidents across the country with the greater ABA.
Joe Patrice: So we can’t get too far into a conversation these days without it turning to the plague. So what have you been doing vis-à-vis the COVID outbreak, obviously that threw a monkey wrench into a lot of what was going on with law schools as they were coming down the stretch to finals.
Johnnie Nguyen: Yeah, for sure. The pandemic, you know, something that no one really expected happening and it really took a toll on a lot of law students in ways that we never expected going into law school. For example, for one else — I’ll break it down by class — for one else it took a big toll on them because they only have one semester great so far, finishing their fall semester, and so as they began their spring semester a lot of schools went pass/fail.
So as 1L students enter their on-campus interviews for summer jobs, they are only being judged off of one semester of grades, which is totally unfair and some of these students who have internships lined up this summer, they are getting their internships revoked. Therefore they are going to go into their second year law school without any legal experience, which is certainly unfortunate.
For second year law students, it’s rough because a lot of them had Summer Associate positions lined up at large law firms and a lot of these large law firms are canceling their Summer Associate Programs, therefore disrupting the pipeline to get law students into firms.
Me, myself as a 2L’s victim to that, unfortunately my law firm, which is a big national law firm, they canceled their Summer Associate Program and so I’ve been on the scramble to find a last-minute summer job and hopefully postgraduate employment, and that’s for 3Ls, I think they took the biggest hit where I remember on the day my school announced that we were going to go online school fully.
That was the last day, they were able to say goodbye to their classmates, and a lot of them are about to enter a legal market that’s really threatened, that’s little scary right now. I know some students who have been laid off from their postgraduate employment offers and some students who won’t be able to take the Bar exam, therefore they had risk for losing their employment. So it’s been troubling on all of us, and it’s a really difficult time.
So to answer your question about what I’ve been doing, what the ABA has been doing, we pushed out this law student survey that was sent out to every Student Bar Association President of every law school and it actually got a lot of responses. We got over 1,700 responses and a lot of the students were asking the ABA Law Student Division to support diploma privilege; and what the diploma privilege is, is a practice that’s done in Wisconsin where if you were to graduate and pass from your respective state law school then you would be granted diploma privilege, therefore are able to practice law within that State or Jurisdiction.
That was an idea that’s been practiced and the media concerns you think is, there’s going to be a lot of malpractice issues or issues of clients, but there was really no evidence of that happening in Wisconsin and other states as well.
When we had discussions with the greater ABA about diploma privilege, a lot of the more senior attorneys were not in support of it because historically states have had diploma privilege for like West Virginia but they removed it in this fear. So we found kind of a middle ground and we decided to support limited practice, and what this is, is — so the ABA created this task force, emergency task force that was a part of and we essentially drafted a resolution that would be used as a model for State Supreme Courts or State Regulatory authorities to model their own resolutions after or their own orders after, which would allow a graduate who would have sat for the Bar to be eligible to practice law under supervision in the time-being so they could take the Bar exam again up to like 2021 or something.
And what we hope this resolution did was that it would allow some cushion time for these law students or these law graduates to not lose their jobs with their employers. Therefore their employers could still keep them on as law clerks or something, and then give them a year or something to figure out any situation with their employer or their family as it relates to COVID-19 to then take the Bar exam.
And so, that’s what we’ve been really doing right now and we’re still keeping tabs on what firms are canceling their programs and seeing where we could support students.
Joe Patrice: Yeah, we’ve talked a lot at Above the Law about diploma privilege or more accurately I guess diploma privilege plus, these kind of hybrid ideas that are kicking around academically about ways in which it could be diploma privilege but obviously because of concerns people have about whether or not do they really are able to be lawyers and the malpractice concerns, different bolt-ons that could be sent to diploma privilege increased and more aggressive CLE of requirements for first years out and stuff like that, but we’ve been talking a lot about that as a way of improving the situation and not just temporarily, I’m one of those people who thinks that this could be an opportunity for us to seriously rethink the whole law school to lawyer model because I feel like one of the problems right now is that we use the Bar exam to filter out people who may have gone to law school but aren’t able to be lawyers and it kind of defers the responsibility of accreditation to the back end.
You go to this law school, it’s not actually going to teach you anything. You’ll spend a bunch of money and we’ll sort it out at the Bar exam as opposed to a regime that would make it more important for the law schools to be heavily watched and regulated so that they are putting out quality, subject master, competent lawyers because that would be the only way to become a lawyer. But Utah appears to be joining the ranks of Wisconsin on this; hopefully some others will too, but this was all a long way to get to, it seems as though some of those older lawyers who don’t want to change things are kind of taking the day and not only are we seeing in-person Bar exams still being scheduled, we just learned that Florida has decided they are going to go forward in July.
Have you heard about these attempts to pretend like nothing’s happening in July, and hey, I don’t know if it’s fairly, it was yesterday I guess it came out, but have you seen that one?
Johnnie Nguyen: I haven’t seen that one personally but we have this little group email going on with the emergency group that was formed to draft the resolution, and we have been keeping each other updated.
As of the last week-and-a-half, I have been studying for final exams because I have been not focusing as much on those as I should and so I have been catching up, but yeah, in the group chat we have been sending updates and Colorado just adopted our own form of limited practice. I think Tennessee kind of already did as well, and some other states as well. I haven’t heard about the Florida one yet, so I will go read up on that for this.
Joe Patrice: Yeah, Florida is going forward with a July exam. They say everybody wear a mask and just come on down to the Convention Center.
Johnnie Nguyen: Geez.
Joe Patrice: Yeah, they claimed they will take people’s temperatures which — for a disease that can be spread without symptoms, doesn’t seem like that’s much of a check, but alas, that’s what they are doing.
Johnnie Nguyen: Yeah, that doesn’t — I mean, again I need to read into what Florida is doing but what you tell me, I have problems with that because although I do want students to be employed and take the Bar exam as soon as they can, the safety and well-being of students is the number one priority, and I think what’s really problematic about our profession as a whole is we often prioritize our career over our well-being and this just speaks volumes to that in that the State of Florida wants to still facilitate this Bar exam knowing that a lot of students will be at risk.
And these law students, they are very type A and they are going to do whatever they can for their careers and sometimes law students have a difficult time putting the well-being first, and so this would just feed into that big problem. And I just feel really bad for students who do have their immunity compromised, they may make the best decision to not take the Bar exam, but then they are at a set — their step back amongst all their peers who aren’t going to take the Bar exam in Florida. So that’s unfortunate.
Joe Patrice: Obviously the limited practice being the primary recommendation that you are putting out, but have you had any discussions with folks about the possibility of promoting the development of an online Bar exam or something like that that could allow people to take it at a distance or where you just focused on getting the limited practice thing through considering all the constituencies you had to navigate?
Johnnie Nguyen: Yeah, in this survey we had a lot of responses, one of the questions that was specifically asked in the survey was should law students take the Bar exam online? Surprisingly in majority — I would have thought they would have said, yes, but surprisingly a lot said no.
Joe Patrice: Haan?
Johnnie Nguyen: And I personally don’t have a policy position on it myself, and I can’t speak on behalf of the ABA —
Joe Patrice: Of course.
Johnnie Nguyen: — on what their position is, but we did recently just have a town hall with me and the President of the ABA, Judy Perry Martinez, and I asked her about online school and whatnot and she acknowledges that technology is advancing and we should explore it, we should look into as a matter of innovation, and that’s something I think we should definitely explore, but I can’t get — I don’t know if I support her or not, and I recently heard California is now allowing online exams, and so well guess, we will see how that works out.
Joe Patrice: Yeah.
Johnnie Nguyen: One problem I do foresee with online exams is that it could disproportionately affect students who don’t have access to broadband. One of the things that my counsel this year has tackled was a broadband access, and essentially a lot of law students when we started on the council they reported us that they are studying for the Bar exam inside of a McDonald’s 20 miles away from their home, because it’s the one place they can get Wi-Fi, which is based on the diligence of our law students, but it’s a fortune that someone had to go through that situation. And I just hope that law students who will be taking the Bar exam online I just hope that they could find a way to mitigate that barrier that may exist for them.
Joe Patrice: Yeah, I would hope that obviously this is wishful thinking, but I would hope that law schools would volunteer to help out their recent graduates rather than just cutting them off at the knees and would offer to provide facilities and Internet for folks’ taking, but you never know, I guess.
Johnnie Nguyen: Yes.
Joe Patrice: Yes, law schools don’t necessarily need to care after they have graduated at least not until they can make donation checks, but alas, so you mentioned well-being in there I wanted to transition a little bit into that conversation. So one of the big topics always around law are these wellness, mindfulness initiatives; what’s going on — what can you do on that, like what has the ABA been doing and your involvement, if any, in wellness sorts of initiatives?
Johnnie Nguyen: Yeah, sure. Thanks for asking that actually because that’s actually when we all got started on this council this year we decided unanimously to prioritize mental health and wellness as our big project. And so, I will hit on two things too big. We did a lot of things — we hit on two big things that we did. One was a substantive push for a policy change and the other was a mental health awareness and fundraiser.
For the policy side we were hoping to convince states based on a 2015 ABA resolution to essentially change or amend the character and fitness questions on Bar applications to remove or amend their any questions that address mental health or wellness. For example, some states had very probing questions asking students have you ever been diagnosed with a mental illness, and students can’t lie on these Bar applications, so if they were to put “Yes”, some states we follow up and say, “Can you send us your medical records?” It’s just such a huge invasion of privacy that’s problematic.
Another problem with that is that students who are aware that those questions are on the Bar application they may be less inclined to go seek mental health help because they don’t want to be diagnosed with it. Therefore, creating another barrier for students to go seek help.
So we were pushing a petition. We partnered up with Harvard Law School and Columbia Law School to get this pushed out, and in recent news we found out that New York just passed legislation to essentially do so. One of the senators there, a State Senator, I forgot his name but he pushed a bill that passed to remove these questions in New York’s Bar exam questions as well as create gender-neutral pronouns for their State. I don’t know that — I don’t understand the legal paradigm and relationships between the legislature and the judicial branch well enough yet, but — so I don’t know if legislation would make that fix because I understand as a judicial authority to make that decision, but hopefully other states can follow that model and recognize that it may be an issue.
Joe Patrice: Yeah.
Johnnie Nguyen: Oh yeah, and then on the fundraiser and awareness piece, this year my Council and I, we pushed this big awareness project. It was a fun little t-shirt competition where students from any ABA accredited law school can submit their t-shirt designs for a mental health t-shirt that would be used as an awareness project. And a student from I believe the University of Virginia, she — I hope I didn’t get that wrong, but she submitted this amazing t-shirt design that we have been now using to sell and I haven’t checked in a while, but we sort of feel we fundraised a couple of hundred and 100% of those proceeds are going to go to the ABA’s Commission on Lawyer Assistance Programs and those funds will be designated towards wellness programming for law students.
Joe Patrice: Right. Well, so here Is I guess going back to just the experience of being a law student right now, how have you been finding your law school Zooming, have you noticed that that there is quirks one way or the other, are professors taking to it and really becoming well-versed at online teaching or are there still technical hang-ups, old lawyers don’t understand — aren’t known for understanding technology, so have you experienced anything or heard anything from your people?
Johnnie Nguyen: Well, in my own personal experience my professors have been very great with Zoom. They are relatively young and one of them has been teaching on Zoom for years now and so she just knows the technology well. I haven’t personally heard of any issues with law professors, but I could imagine some very older senior law professors would have issues because Zoom could be a little difficult to navigate if you are not familiar with technology and I know some law professors who don’t know how to use PowerPoint, so I would imagine they have a hard time functioning with Zoom. But thankfully my law school has a great support system for IT and stuff so they probably got help; hopefully other schools have as well.
I would say that online learning, there is a lot of problems with it of course and productivity is slowing down on it and it’s much harder to pay attention, but I am glad that it’s being recognized as an option. I know medical schools right now, they record a lot of their lectures, some law schools like the University of California – Irvine they prerecord their lectures, which I think is a really good idea because it leaves it to the students to bounce their own schedules.
I think it’s a little more ancient or old school to make students show up to class at the certain time, because a lot of times I have had to just miss class because I had an interview that I had to schedule or I had this networking event that I really needed to go to or a court date that I had to attend for my internship. If classes were just prerecorded attendance would certainly go down, but at least it would allow a student to manage their own schedule a little better, which is what we should be teaching our law students to do as they enter the legal profession.
Joe Patrice: Yeah, and it’s all well and good to say you have to come to class when everyone is on campus, but now you can’t necessarily know what the day-to-day schedule of a student is at home. They have other obligations wherever they are sheltered and you can’t just trust that the 9 to 10 a.m. slot is going to be available for them all the time. So it is a smarter move to do the recording even if you are losing out a little bit on the calling on students sort of model, it’s great to have that flexibility.
I have been hearing some people wondering if this is going to become something of a trend, that more professors are going to, even after this is over, lean into being able to record things. I don’t know if you are hearing any of that buzz. I would be interested to see if that actually comes to fruition.
Johnnie Nguyen: Yeah. I mean I think people have always talked about having online courses or talked about online education and I went to the University of Colorado, Denver where they are really very innovative with online learning, really pushing degrees to go online and I actually completed my entire senior year and end of junior year of college fully online. I didn’t go to class in person because I was working full-time as a legislative aide and I really liked that flexibility because it allowed me to do much more substantive things for my career.
And so I hope that with Zoom online learning people can recognize that this is a tool that we shouldn’t be afraid to use, and even with remote work too, so many people have always said remote work is not possible, things are just more productive in the office, but I think a lot of Millennials and young people are proving that it is possible in that we — if you just give us deadlines, we will meet it on our own schedule.
Joe Patrice: Yeah. I actually talked to a fairly well-known senior attorney the other day who told me that while he has lived his entire life a firm believer in showing up to the office, it took him all of about three weeks of this to realize this is actually completely workable, working from home is great. So it’s a lesson for even the older set to go through this and realize that maybe they have been sticking to trends that were outdated.
Johnnie Nguyen: Sure. A couple of years ago I attended this conference about — and they were talking about the Millennial generation difference with former generations and former generations were constructed to, you have to work this 9-5 job, you have to show up and give your all during this time and just work, work, work.
I don’t think Millennials really function that way. We like to work on our own schedule. If you just give us deadlines, we will meet it to quality and we can just work around our schedule. And that’s the great thing I think that’s really developing in law firms like if you have to go pick up your kid at 3 p.m. just go, you don’t have to tell anybody, just as long as you get your work done to good quality then that’s what really matters and it just really helps balance an attorney’s life, it helps balance their mental health.
I was kind of thinking about how much time we save not commuting or that time you just save not having to go change and get dressed for school and stuff like that, you get so much more sleep. And even if I go to bed at — like if I have an 8 a.m. class and I go to bed at midnight and I wake up at 7:30, so just 30 minutes before the class starts, which is really all the time you really need to get ready, you just got 7.5 hours of sleep for an 8 a.m. class that you go to bed at midnight, that’s quite a lot of sleep. So I like it a lot.
Joe Patrice: Fair enough. Well, so the last major topic I wanted to get into is the questions of — it’s become kind of a hot-button issue this week about New York is trying to come up with a plan for its in-person examination where they know they will have a seating shortfall of trying to stagger the people who take it and have some people take it in September and others have to wait until February and law school deans are very upset about this.
But is there realistically any way in which we can really have 10,000 people take a Bar exam in one sitting? Is there a push to force the NCBE or prevail upon them at least to offer multiple days of it over the course of September? Right now they seem to say we are offering these two days and that’s it of tests, but is there any momentum shall I say for people to reach out and kind of try and push the NCBE to change its worldview in order to make things a little bit easier on people?
Johnnie Nguyen: Well, I can’t speculate on what everybody wants. I think it depends on everyone from different states, like what people from New York want could be very different from what people want in Wyoming, because New York has so many more people who have confirmed cases for COVID-19 whereas Wyoming has a lot less, the paradigm might be different.
What the NCBE does is they — is what they do. The ABA tries to keep up our communications with them, by the end of the day it’s the NCBE’s decision on what they distribute.
Joe Patrice: Yeah.
Johnnie Nguyen: And so what I can say is that law graduates in their states should not be afraid to reach out to their regulatory authorities and express how they feel about it and let those states decide for themselves, because if the ABA made this big overarching decision, it might help a lot of people, but it might detriment a large number of people who may not fall into this one-size-fits-all model.
As for a push to try to get everybody tested at once, I don’t know, I am not an expert on that. Other states are doing different things and so we are just seeing the results of it. Like California, as I said, they are doing online exams. If that becomes a success maybe other states might follow that. If New York does the staggered thing, the media question is how is this fair, like how are they choosing which students go first, which students go last. There are a lot of different models people are trying and I guess only time can tell which is more successful.
Joe Patrice: Yeah. The New York model right now — I think New York would ideally have the Bar exam every week sitting for all of September to get everybody through, but since the NCBE is not willing to let them do that, their current plan is to let people — graduates of the New York local law schools go first and then have out-of-state folks go at the next administration. Logic being from what I understand that out-of-state folks moving to New York are more likely to be the sort of folks working at big law firms who — I mean Cleary Gottlieb is not going to fire you if you have to take the Bar exam in February because that’s just how the pandemic rolled.
So they figure the odds of somebody losing their job are much less there, whereas local law students from some of the lower tier schools in New York are probably the sort of folks going to small firms that can’t carry an attorney who is not licensed and so they are trying to process them first.
Unfortunately this has kicked up a lot of anger on the part of out-of-state students, which I understand, but it’s not like they are being told they can’t get it, they are just like on the wait and see, but for now that’s where — I mean it’s a rough situation, like you can’t kind of magic 10,000 new seats, all socially distanced, and ready to go in September so something had to be done and it seems like this is — while it’s not what I would want it’s as fair an option as any, but we will see.
It appears as though Massachusetts is going to follow that model too. So yeah, there is going to be more anger about this.
Johnnie Nguyen: For sure.
Joe Patrice: Hopefully diploma privilege wins the day for some of these places, but we will see.
Johnnie Nguyen: Yeah. And you hit on something really important that I want to address is, a lot of times I think the traditional law student path is go to law school and then go to big law firm. It was something I really learned; probably the most important thing I learned in my role is that most law students don’t do that path. We have over 200 ABA accredited law schools and most graduates don’t do that. A lot of graduates go into government and public service work, a lot of them become public defenders, DAs, and those students are the ones I have most concern for, because a lot of these law students are true heroes and they are going to become DAs, PDs in very rural areas and those areas do have a high need for lawyers.
I think there is this general feeling that we have too many lawyers out there or there is not a high need for lawyers, but that’s true only for like urban areas, whereas rural areas there is a very high need for lawyers and law students aren’t very appealed to practicing there, but for those small few that are going to practice there, they are going to be barred from being able to practice there, therefore disadvantaging that entire community that was going to rely on their representation, which is really problematic and I think it’s something that we should talk about more because people aren’t aware of it.
Joe Patrice: Yeah. I always like to say that when people suggest that there are too many lawyers, I point out too many lawyers doing what though. There are may be too many lawyers doing some tasks, but there is definitely a massive shortage of lawyers doing some of this other important stuff from just public defenders everywhere, but also as you said just being the rural attorney for somebody is huge, even if it’s private sector. Like not even a government thing, just a private sector attorney in some of these rural areas is so essential.
I think it’s, is it North Dakota, one of the Dakotas has a plan basically, almost like the old show, what was that old show, Northern Exposure style plan where you can go to law school for free or whatever, but you have to promise to work in the rural areas of the state for a while, just because they are so short on attorneys.
Johnnie Nguyen: Yeah, so that’s actually South Dakota. They have that program.
Joe Patrice: South, yeah, I knew it was one of them.
Johnnie Nguyen: Yeah, South Dakota, they have the — exactly what you said, it’s like a loan replacement or a kind of a loan program where it’s funded by the state, it’s funded by the courts, it’s funded by the Bar Association and it’s funded by the school, where essentially if you commit to practicing in rural areas, then they will pay off a part of your tuition. And that’s a great — that’s really a great program that the ABA Law Student Division is actually running a resolution on right now to encourage other states to follow.
Colorado has a giant rural community, but we don’t have anything like that, and anything we can do to push more attorneys to represent people who live in rural areas who are in dire need of representation, we should support that.
Joe Patrice: Great. Well, thanks for joining me today. That’s Johnnie Nguyen. He is the Chair of the Law Student Division at the ABA. Thanks for catching us up on what’s going on with law students and recent grads. If you are a law student or you should join up, you will — I mean if it’s anything like when I went to law school, you get that little email or whatever early on in your law school career asking you to sign up and you should go ahead and do that.
Yeah. So thanks everyone for listening. Give us reviews, subscribe, all that stuff. I mean you know the drill, you have heard me give this speech a million times. Read Above the Law, follow Joseph Patrice on Twitter. You should be listening to The Jabot, which is Kathryn Rubino’s podcast. You should listen to the other LTN podcasts. You should check out Logikcull, our sponsor. That’s everything I needed to say.
All right, we will be back next week. Talk to everybody later.
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