Terry, K S --- "Externships: a signature pedagogy for the apprenticeship of professional identity and purpose" [2011] LegEdDig 9; (2011) 19(1) Legal Education Digest 30

• Externships: a signature pedagogy for the apprenticeship of professional identity and purpose

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Externships: a signature pedagogy for the apprenticeship of professional identity and purpose

K S Terry

Journal of Legal Education, Vol. 59, No.2, 2009-2010, pp 240-268

Most observers of legal practice agree that our craft faces a professionalism deficit. Former Chief Justice Warren Burger sounded a warning over 15 years ago, declaring, ‘the standing of the legal profession is at its lowest ebb in the history of our country due to the misconduct of a few judges and all too many lawyers in and out of the courtroom’. Since that time, judges, academics, and practitioners alike have continued to lament a decline in attorney professionalism.

A study by the Carnegie Foundation for the Advancement of Teaching recently concluded that the current system of legal education exacerbates this professionalism deficit. Educating Lawyers frames legal education in terms of three apprenticeships: a ‘cognitive’ apprenticeship that teaches ‘the knowledge and way of thinking of the profession’; a ‘skills and practice’ apprenticeship that teaches the ‘forms of expert practice shared by competent practitioners’; and a ‘professional identity and purpose’ apprenticeship that teaches ‘the ethical standards, social roles, and responsibilities that mark the professional’. While the three apprenticeships are equally important in educating students, the Carnegie Report found that legal education neglects the apprenticeship of professional identity in favour of the cognitive apprenticeship.

Indeed, law schools place so much emphasis on the cognitive apprenticeship that they have developed what the Carnegie Report calls a‘signature pedagogy’ to teach it. That pedagogy is the quasi-Socratic dialogue that many professors employ, especially in first-year courses. Notably, however, the Carnegie Report fails to identify a signature pedagogy for the apprenticeship of professional identity, which provides further evidence of its disregard. To correct this deficiency, the Carnegie Report asserts that law schools must ‘deepen their knowledge’ of the apprenticeship of professional identity and ‘attend more systematically to the pedagogical practices that foster the formation of integrated, responsible lawyers’.

An externship program centred on the development of professional identity and values is a pedagogical device that law schools can employ to meet this goal. This combination of work experiences in an actual practice setting and guided reflection on those experiences in the seminar provides students with an ideal opportunity to explore the moral, ethical, and professional dilemmas that lawyers regularly encounter. Through such exploration, students learn and evaluate the fundamental values and principles of their chosen profession. By observing and assessing professional norms in this manner, they can begin to incorporate those norms and to form their own emerging professional identities.

The apprenticeship of professional identity and purpose is the means through which law schools teach students the legal profession’s guiding values and principles. At a minimum, this apprenticeship includes the formal regulations that govern lawyers’ professional conduct. It also includes ‘wider matters of morality and character’ such as ‘respect and consideration for one’s clients’ and ‘basic honesty and trustworthiness – financial propriety, accurate representation of one’s experience, and the like’.

The apprenticeship of professional identity also extends to deeper, more philosophical questions, such as what it means to be a lawyer and the special obligations that lawyers have to society.

Thus, this apprenticeship is the forum in which students may explore and answer such fundamental questions as ‘Who am I as a member of this profession? What am I like, and what do I want to be like in my professional role? And finally, what place do ethical-social values have in my core sense of professional identity?’

The apprenticeship of professional identity matters because it is the means through which students can develop an internal compass for navigating among the competing, and sometimes conflicting, roles and responsibilities that lawyers have.

The apprenticeship of professional identity and purpose also is important because it gives students a forum in which to think about the type of lawyer that they want to become. There are various types of lawyering styles, ranging from the ‘hired gun’ to the ‘officer of the court’ to the ‘moral individualist’.

Signature pedagogies are the ‘typical practices of teaching and learning by which professional schools induct new members into the field’. Through signature pedagogies, ‘the novices are instructed in critical aspects of the three fundamental dimensions of professional work – to think, to perform, and to act with integrity’. Such teaching methods are considered ‘signature’ because they are ‘readily identifiable and uniquely individual to the field’. According to Professor Shulman:

Signature pedagogies are important precisely because they are pervasive. They implicitly define what counts as knowledge in a field and how things become known. They define how knowledge is analysed, criticised, accepted, or discarded. They define the functions of expertise in a field, the locus of authority, and the privileges of rank and standing.

Notably, the Carnegie Report does not identify a signature pedagogy for the apprenticeship of professional identity as it does for the cognitive apprenticeship. Instead, the report surveys various forms of law school teaching, ranging from ‘the academic teaching of the case-dialogue classroom through various approximations of legal practice to clinical training’, that can be used to help form professional identity. This survey, however, devotes only three paragraphs to the role of clinical education in the apprenticeship of professional identity. Those three paragraphs, in turn, contain no mention of externships. This omission is disappointing given the significant educational value of externships.

The observable features of an externship program typically include four basic components: field placement, journals, supervision, and a seminar class. Through this placement, the student assumes a professional role and performs legal work in a real-life setting. The student also observes other participants in the legal system in their professional roles. Depending on an externship program’s pedagogical goals, the placements may be limited to the public sector, or they may include positions with private law firms and corporate counsel. In the externship program I direct, the placements are limited to positions with non-profit organisations and with state and federal judges, legislators, and government agencies. This restriction is consistent with our program’s express goals of exposing students to public-service practice settings and encouraging them to consider careers in public service.

Journals are another component of the externship’s surface structure. ‘For students in any instructional setting, the journal encourages writing; probing beneath the surface of problems; thinking more deeply about the materials, products, and processes of learning; and taking more responsibility for their own learning’. Students in our externship program must submit a two-page journal entry each week that ‘discusses the type of work the student is doing, reflections about the student’s work, and issues the student is facing’.

I also ask students to put themselves in the place of attorneys and judges they observe and consider whether they would be comfortable in such roles. Thus, journals provide a means for students ‘to explore the role of personal values and beliefs in the work experience, possible moral conflicts in personal values and beliefs with the work experience, changing perceptions in the role of law and the practice of law in society and their role, both as a student and in the future as a lawyer, in the institutions comprising the legal system’.

Our externship program employs a two-tier system, including a faculty supervisor and a field supervisor. As the faculty supervisor, I manage the overall program, select the students for the program, select and train field supervisors, teach the seminar classes, provide feedback on the students’ journals, and meet individually with students. The field supervisors, who include judges, practising attorneys, and legislators, are responsible for directing the day-to-day work that the extern performs at the placement site. Thus, the field supervisors direct the students’ work assignments, critique the students’ work product, manage their workload, and determine the proceedings and events that they will have the opportunity to observe. Field supervisors also serve as mentors, sharing their insights and experiences and answering students’ questions about what it is like to be a practising lawyer. While the faculty supervisor also may serve as a mentor, she generally is a step removed from the students’ daily work and acts as a ‘“meta-guide” ... to assist the students to set, maintain, revise, and meet their goals, and also to help them interpret their experience’.

One of the tools the faculty supervisor uses to help students interpret their experience is the seminar class – the remaining element of the externship’s surface structure. In the seminar, the externs meet with the faculty supervisor to discuss their field experiences and assigned readings pertinent to their externships.

A signature pedagogy’s deep structure consists of the underlying intentions, rationale, or theory that the behaviour models. If the deep structure of the case-dialogue method is ‘thinking like a lawyer’, then the deep structure of externships is ‘thinking like a professional’. This thought process is the essence of the apprenticeship of professional identity and purpose, and it encompasses all values and norms associated with that apprenticeship: integrity, civility, competence, honesty, individual and social justice, and personal meaning in one’s work. It also includes an awareness and appreciation of the heightened professional obligations of lawyers, such as engaging in public service and seeking access to justice and improvement of the law. Learning to think like a professional, however, is ‘an undervalued, or at least underemphasised, component of legal education’.

Externships are uniquely positioned to fill this void because they immerse students in the professional role, expose them to professional norms and values in actual practice settings, and then allow them to evaluate and incorporate those norms and values. Through this process, students learn to think like professionals and to form their own professional identities. This learning occurs through several aspects of the externship, including the externs’ pre-placement training, their work experiences, and the seminar class.

The development of professional identity and values can begin in the extern’s training. Our program requires students to attend a training workshop before they start their externships. The workshop includes a session on the extern’s ethical responsibilities that covers workplace confidentiality, recognising and avoiding conflicts of interest both during and after externships, and the duty of competence.

I also use the training session to begin an exploration of professional values and norms, going beyond the minimum standards set by the formal rules of conduct. As an opening exercise, I ask each student to name one trait of a ‘good’ lawyer. We compile a list of the qualities and discuss the meaning and significance of each one. The exercise is designed to make the students aware of their own preconceptions about the attributes of lawyers and to heighten their consciousness of the presence, or absence, of these qualities in the lawyers they encounter during their externships. By stressing all of these ethical and professional norms in the initial training session, my goal is to cause students to think seriously about their professional identity and the values and standards of the profession they are preparing to enter.

Externs continue their formation of professional identity through their work experiences. They see actual professionals in practice, including judges, attorneys, and other officers of the legal system. They can evaluate whether these people, including their own externship supervisors, meet professional standards or fall short. They reflect on this conduct in their journals and in discussions with their field supervisors as issues arise. In addition, students must exercise their own professional judgement in maintaining workplace confidentiality, completing assignments, and interacting with clients, opposing counsel, and their supervising attorneys.

Externship work experiences also can enhance the development of professional identity by engaging students in public service. Lawyers are obliged to perform public service and promote the public good. However, opportunities for students to work and gain experience while in law school are typically more plentiful in private law firms than in the public sector. Our externship program attempts to correct that deficit by limiting placements to positions with non-profit organisations, courts and legislators, and government agencies.

An externship program can, and often does, implicitly model at least two valuable lessons to students: that the actual practice of law differs from their preconceptions, and that practice involves more than just ‘thinking like a lawyer’. Through their externship, students learn that the practice of law under real conditions is more complicated than they imagined and differs from their previous law school experiences. In externships and other clinical experiences, students learn that ‘unlike the pre-digested presentation of facts in appellate court opinions, the facts in most cases are ambiguous and transitory’. They may be ‘unavailable, obscure, disputed or distorted ... Clients and witnesses sometimes evade, fail to remember, exaggerate, or lie outright. Stories conflict. Documents conceal’. Students also learn that writing a research memorandum under the time constraints of actual practice differs from writing a memo for their legal writing class. They learn that attorneys sometimes do not live up to the high standards set by the rules of professional conduct. They also learn that the stress and pressure of practising law can have deleterious effects on one’s health and well-being.

Externs also confront the reality that the justice system is not always fair and does not always treat people equally. ‘They witness all kinds of behaviour against which they inevitably measure their own sense of fairness and justice. Often they learn some harsh lessons about race or gender bias, lawyer immorality, indifference and incompetence, or judicial temperament’. Students in public-service settings who work with people of limited financial means also see the additional burdens and obstacles that those in poverty face when they encounter the justice system. While these realities may be disconcerting, students need a forum during law school in which to examine these problems and explore their reactions to them.

Principles of adult learning theory further support the use of externships as a signature pedagogy for the apprenticeship of professional identity and purpose. First, externships satisfy adult learners’ need for self-direction. In the externship setting, students are placed in the professional role and direct many aspects of their field experience. For example, they set their own individual learning goals for their externships. They articulate the goals they would like to achieve, experiences that would be helpful in achieving those goals, and events or proceedings they would like to observe. They also have the duties of junior attorneys in their placement offices, often being asked to take a project and see it through from initiation to completion. They assume responsibility for these projects and proceed on their own, seeking guidance from their field supervisors on an as-needed basis. Through these self-directed experiences, students learn professional values such as diligence, competence, and dependability.

Second, externships fulfil adult students’ desire to learn from personal experience. Through their experiences with clients, supervising attorneys, opposing counsel, and other participants in the legal system, externs have many opportunities to observe the exercise, and the absence, of professional values and ideals. Indeed, learning from experience is the essence of an externship. This type of experiential learning also works well for the current generation of students known as the ‘Millenials’, since members of this cohort ‘learn well through discovery’ and ‘prefer to learn by doing rather than by being told what to do’.

Moreover, research indicates that even though students arrive at law school with their own moral beliefs and values, their education and experiences can influence their adoption of professional values and norms. ‘Research on ethics education finds that moral views and strategies change significantly during early adulthood and that well-designed courses can improve capacities for ethical reasoning’. Indeed, Professor Daicoff has found that:

there appears to be a shift in moral decision-making style during the first year of law school among students who enrol with an ‘ethic of care’. These students shift to a rights orientation, which demonstrates that legal education can profoundly affect what law students value when making decisions.

Thus, students’ externship experiences can have a significant impact on the development of their professional identity, which is still in its formative stages.

Third, externships are consistent with the premise that adults learn better if the subject is related to ‘the performance expected of them in their social role’. Externships place students directly into their professional and social roles as burgeoning lawyers.

Finally, externships support adult learners’ inclination to ‘acquire knowledge that is able to be immediately applied’. Because externships place students in actual work situations, they present students with problems such as determining the most effective approach to take in representing a client, ethical questions, and conflicts between personal values and professional values. These questions are not hypothetical; because students are able to immediately apply their knowledge to a real problem at hand, the work is meaningful and resonant.

Law schools, like all professional schools, face a daunting challenge. They must convey the substantive knowledge of their field, train students in practise skills, and impart the professional norms and values that will enable students to employ their knowledge and skills competently, ethically, and morally. This is no small task. A thoughtfully crafted externship program, however, is an effective pedagogical device to promote professional identity and purpose. Externships provide students with significant learning experiences in the fundamental values of the legal profession and the roles and responsibilities of lawyers in society. They also offer students opportunities to reflect on and critique professional norms and values, and to explore important issues and questions not typically addressed in other law school courses. Externships exemplify the dimensions of a signature pedagogy, and they answer the Carnegie Report’s call for law schools to ‘attend more systematically to the pedagogical practices that foster the formation of integrated, responsible lawyers’. Legal educators should recognise the value that externships have to foster the apprenticeship of professional identity and purpose, and they should use externships to provide students with a more integrated and well-rounded educational experience.