By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona could soon become the only state in the nation where the person representing you in court on a criminal charge, from traffic infractions right up to homicide, might have just one year of law school.
A proposal being advanced by the top administrator of the Arizona Supreme Court would take what now are programs offered at the state's two law schools to simply provide advanced legal knowledge to graduate students and enhance and convert them to a one-year course that, in the end, would lead to the ability to actually take on clients.
It wouldn't be quite that simple, said Dave Byers, director of the administrative office of the courts.
Students would need to take a prescribed list of courses specifically related to criminal law, graduate with a B or better average and pass appropriate license exams. They would be granted a degree in Master of Legal Studies.
And they would first have to work under the supervision of an actual licensed attorney for some period -- the proposal now suggests nine months -- before they could practice on their own.
Byers told Capitol Media Services that, despite what appears to be a glut of lawyers based on billboards and TV commercials for those injured in accidents and accused of drunk driving, the fact is that Arizona is a "legal desert,'' with the state having fewer lawyers per capita than almost anywhere else in the country.
What this training is geared to he said, is training people who can work in understaffed offices of county attorneys and public defenders, particularly in rural areas, where those who have an actual law degree -- a juris doctor -- are less likely to practice, whether it has to do with the pay or simply wanting to live somewhere more urban.
Byers acknowledged, though, that once that period of supervision is over, the holders of the special MLS designation would be free to take on clients in criminal cases anywhere they want. And they'd be able to handle everything short of a crime where the death penalty could be imposed.
That possibility has alarmed Dean Brault, director of public defense services for Pima County.
"Creating a system where any criminal practitioner, be it a prosecutor or public defender, can graduate from undergrad and be practicing in two semesters is reducing that bar, and is literally lowering the bar to say that when a person's life or liberty is at stake, up to and including the rest of their lives, that suddenly we only require one year worth of schooling,'' he said. "That is absurd.''
That sentiment is shared on the prosecution side of the equation. Pima County Attorney Laura Conover said what's being proposed makes the criminal justice system "some kind of lesser cousin to the rest of the law.''
Consider, she said, if her grandmother needs legal help writing up a will.
"She'd better sit down with a fully trained, three-year State Bar attorney because money is on the line,'' Conover said.
"But if my cousin is facing 25 (years) to natural life, then a quite young, lesser trained, lesser educated, under-examined attorney will do just fine,'' she said. "And that double standard is not something that the criminal justice system should be subjected to.''
Byers, for his part, said that assumes that someone with an MLS degree would have less academic training than someone with a JD.
In fact, he argued, the reverse might be true.
While it takes three years to get through law school, that includes taking a whole set of classes that have nothing to do with criminal law.
Generally speaking, those "core'' classes include rules of civil procedure, constitutional law, contracts, property and torts, the last being civil cases where someone sues someone else for an injury. There's also a course in criminal law.
But Byers said that students have much more flexibility in their second and third years picking and choosing electives. That can get into specialties like environmental, family or immigration law.
By contrast, he said, everything offered in the MLS program deals with criminal law and practice.
"So this proposal has an in-depth requirement of all of the courses you want a lawyer to have to practice criminal law,'' Byers said. "So, academically, these people will graduate with more academic training than the typical JD.''
For example, he said full-fledged lawyers with a JD degree can practice anything they want -- including criminal law.
"They may not have even taken (courses on) evidence or criminal procedure,'' Byers said, the kind of courses that would be required to get an MLS degree.
Chief Justice Ann Scott Timmer told Capitol Media Services she is intrigued by the idea.
She said she recognizes the shortage of lawyers in some parts of the state in some practices.
"I see it as a social issue and a generational issue that a lot of these folks that are coming out of law school, even if they come from a rural area, they're not interested in going back or, if they're not from a rural area, they're not interested in going,'' Timmer said. "And so what we hear is a lot of folks like my age, frankly, who live in the rural areas have a nice general practice and they've got a client base ready to hand over to a new attorney, there's nobody there.''
But Timmer, a graduate of the ASU College of Law, said she also sees the other side to it.
Put quite simply, she said, is the question of whether it takes something more to be a lawyer -- and have a role in determining whether someone goes to prison for years in your hands -- than 30 credit hours of training in criminal law.
"It's an ongoing debate about that,'' she said. And that comes down to the question of what is the role of law school.
"One point of view certainly is that it's not that you're learning the nuts and bolts of criminal law,'' the chief justice said.
"It's you're learning how to think,'' she continued. "It's you're learning how to analyze.''
Timmer said that when students take courses on contracts, civil procedures, taxes and business organizations, what they're developing is their analytical ability.
"It's not a trade school,'' she said. "Whatever you confront out there, you've got the tool set to be able to learn how to research it, to think about it, to analyze it, that kind of thing.''
And there's a more practical issue.
Consider, Timmer said, what happens when a client accused of "some sophisticated white-collar crime'' approaches one of these MLS-trained lawyers for representation. While legally speaking someone with an MLS degree could take that criminal case, she said it would be important for the client's defense for a legal representative to also understand and have background in business organizations and property law.
Timmer insisted that she has not come to any conclusion about whether the idea has merit. And she said the full court has not made any decisions.
About the only thing that has happened, she said, is the justices have given Byers the go-ahead to research the concept and present it to them.
Conover agreed there are areas of Arizona that can be considered "legal deserts.'' But she said there are other ways to deal with that.
One is something the Supreme Court already has done: Provide a bit of wiggle room for those who scores on the Unified Bar Exam -- the entrance gate to being able to practice here -- fall a bit short.
Right now it takes a score of at least 270 to pass.
Under the program approve last year, law school graduates who get at least 260 on the exam can work under the supervision of an experienced lawyer for two years -- but only if it is in public law. An option to work in a private practice is available only in rural communities.
After that, they can go out on their own.
That 260 figure is not arbitrary. It happens to be the passing score to practice in New Mexico and Utah.
"A student might fall short by a few points here in Arizona and they can just walk right into New Mexico and pick up a job,'' Conover said. "It's that brain drain. It's just losing fully trained, graduated attorneys who can go take their Bar score elsewhere.
There's a financial component to what Bryer is proposing.
The plan he has circulated in the legal community figures the cost of attending law school for three years totals more than $177,000 including tuition and the expenses of having to live in Phoenix or Tucson where the schools are located.
By contrast, he said gaining the 30 credits for the MLS program could be done in as little as two semesters. And tuition would be about $31,200.
There's also the fact that much -- if not all -- of this could be done online, allowing students to remain in their home communities. And the fringe benefit of all that, said Byers, is they might choose to remain there when they begin practicing.
Brault sees the finances through a different lens.
"If it only takes a year's worth of education to become a prosecutor or a defense attorney, all that that's going to do is lower the wages of people that are practicing as criminal lawyers,'' he said.
"If you can get out and do that with one year's worth of debt, those people are not going to get paid as much as somebody who's fully licensed to practice law,'' Brault continued. "And it's going to drag down the reputation and the earnings of all the people that have gone to law school for the full three years and are fully admitted to practice law.''
He does not doubt that many smaller counties have a dearth of lawyers in criminal practice, both on the prosecution and in public defender offices. But Brault said that's a simple result of people willing to be paid less if they get to live where they want.
"Right now we've got people who are practicing in Pinal County because they pay more money than Pima County does, to be in a smaller county,'' he said.
"You have the smaller counties that don't want to put a premium on the services to attract people to their counties,'' Brault said. "That's why they don't have the lawyers.''
Conover said the way to ensure that residents in all of the state's 15 counties get the same benefit of fully trained attorneys comes down to money. And that, she said, could take the form of financial incentives to serve in a rural area, even if it is just for some fixed term.
Timmer also sees finances as at least a partial answer.
She said some of the hesitation of new lawyers to wind up in a rural county may be because they just don't know what's out there. Timmer said the State Bar is trying to deal with that in a small way, giving out 10 stipends of $5,000 each to law school students -- 5 from UA and 5 from ASU -- to go out and do their internships in rural areas.
So assuming the Supreme Court goes along, that leaves one practical question: What do you call these MLS grads. More to the point, can they call themselves lawyers?
"That's to be determined,'' Byers said.
"Maybe we call them an 'MLS attorney,' '' he said. "That would have to be something that if the court said we're going to do this we'd have to work out those details.''
Byers said creating an additional tier of legal help is little different than what happens in some other professions, specifically citing the medical system.
At the top are medical doctors, the equivalent of lawyers with JD degrees.
"But you have EMTs, you have nurse practitioners, you have technicians and so on,'' Byers said. "So we're building different levels of people who can practice law in Arizona.''
Brault, however, said he remains convinced that even if the Supreme Court considers it acceptable to let certain legal services be performed by someone without a law degree, that doesn't make it in a client's best interest.
He noted that court rules now allow paralegals to represent people under arrest for criminal charges at their initial court appearances. That's the stage where the person goes before a judge, is informed of the charges, has the rights explained like the right to an attorney, and can have bail set. Brault said he doesn't allow it in his office.
"While a paralegal may have some of the practical knowledge they're not equipped to practice law,'' he said.
"Part of an initial appearance is ascertaining whether or not there's legitimate probable cause to find the offense,'' said Brault. "And you can't put that kind of work onto a non-lawyer to be able to do an assessment about whether or not the state's met its burden on a probable cause determination.''
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