Whenever an especially dumb bill is introduced in the Maine Legislature, two questions immediately come to my mind: What could they have been thinking? And was it sponsored by state Sen. Eric Brakey, R-Auburn?
Those questions lit up in my brain like a neon sign when I scanned the Sun Journal’s April 7 edition and saw the headline: “Bill aims to drop law school requirement to be licensed to practice law in Maine.” Sure enough, the measure had been co-sponsored by Brakey, the originator of many quixotic legislative proposals during his tenure in the Maine Senate (2014-18 and 2022-present).
Rearview Mirror
As best as I can figure, Brakey is a libertarian who wants to dismantle the entire regulatory structure of government and put guns into the hands of all Maine citizens, thereby allowing them to return them to the state of nature described by 18th century French philosopher Jean-Jacques Rousseau.
Rousseau’s philosophy was summed up in his famous maxim, “People in their natural state are good. But this natural innocence, however, is corrupted by the evils of society.” French Queen Marie Antoinette was a big fan of Rousseau’s philosophy, though her naïve faith in the natural innocence of her subjects wasn’t of much help when they overthrew the monarchy during the French Revolution, imprisoning and guillotining her and her husband, King Louis XVI, in 1793.
Personally, I prefer the adage of Constitutional framer James Madison, “If men were angels, no government would be necessary.”
As for the merits of Brakey’s bill itself, it isn’t, to borrow a salty phrase from the late Texas politician John Nance Garner, “worth a bucket of warm spit.”
The bill, LD 1352, which has been referred to the Judiciary Committee, is entitled an “Act to Remove Barriers to Becoming a Lawyer.”
It allows bar candidates to substitute, in place of a law school diploma, two years of study in the law office of a supervising licensed attorney. The prescribed amount of study is 18 hours per week, five of them personally supervised, during the office’s regular business hours. The supervising attorney is expected to test the applicant at least once a month on materials studied that month and report once every six months to the Board of Bar Overseers on the student’s progress. The only qualifications prescribed for supervising attorneys are that they be admitted to the practice of law and be in good standing for a minimum of five years before engaging in supervision.
The problems with this proposed legislation are numerous.
First, law practitioners, at least the successful ones, are extremely busy and have barely enough time to do their own work, let alone teach apprentice attorneys five hours a week. Second, most Maine attorneys tend to concentrate their practice in one, two or, at most, three areas of the law, while a law school curriculum may cover a dozen or more discrete fields. Third, five years of experience is enough time for practicing attorneys to achieve moderate competence on their own, but hardly enough to achieve the high skill levels necessary to supervise others.
Fourth, since law professors are often the brainiest products of the best schools, it would hard to replicate their expertise from among the ranks of work-a-day practitioners. Fifth, there is a risk that supervising attorneys (who would be allowed to mentor as many as four applicants at a time) could turn the system into a low-pay or no-pay form of indentured servitude to benefit their own practices.
Finally, law school represents more than a mere paper diploma. It’s a grueling three-year program designed to teach the essential knowledge and analytical skills necessary to function competently in the profession. I could no more conceive of eliminating the law school requirement for attorney licensure than I could the medical school requirement for physician licensure.
I had the good fortune to attend University of Maine School of Law between 1975 and 1978. My education there provided a solid foundation for everything I’ve been able to accomplish in the past four-plus decades in my profession.
Though I was a diligent student, I had to labor mightily as there was so much to learn. Three years was barely enough for the task at that time. Since then, the legal field has greatly expanded in scope. Today it could take an entire year to teach some of the courses, such as employment, intellectual property, or environmental law, which fit easily into three-credit hours in the 1970s.
While it’s true that I, as other law school grads, still had to take and pass the bar exam in order to obtain my license, a requirement that will continue under this legislative proposal, I didn’t find the exam to be an in-depth test of professional competence. It was more an exercise in memorizing bullet points in order to show at least a minimal grasp of the basics. Indeed, like other candidates, I took a bar prep course the summer after graduation in order to cram for the exam that fall.
“Reading the law,” namely clerking for a licensed attorney, was a widespread practice in the U.S. until the early 20th century, because it was both necessary and feasible. It was necessary because there were only a handful of law schools in this country until the late 19th century. It was feasible, because the law itself was far less complex. By reading judicial decisions, attending trials, and consulting a handful of well-thumbed treatises, such as Blackstone’s “Commentaries on the Laws of England,” Pomeroy’s “Equity Jurisprudence,” and Chitty’s “Treatise on Pleading and Parties to Actions,” an aspiring attorney could catch up to his more experienced colleagues with a few years of hands-on learning.
Today there are nearly 200 accredited law schools in the U.S., and the explosive expansion of federal and state statutes, regulations and decided cases has made it a herculean task for a wannabe attorney to get up to speed.
These inconvenient facts may not fit into Brakey’s worldview. But if I were him, I’d think twice about retaining any attorney who’d managed to get licensed under his bill.
Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 16 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at epsteinel@yahoo.com
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