Advocating for Apprenticeship

From The Practice January/February 2024
What can the legal profession learn from an apprenticeship model?

The American Bar Association (ABA) requires law students to engage in at least six credits of “experiential learning”—and proposals are circulating to increase that figure. This might take place through clinics, co-ops, field placements, or simulation training. But the United States’ practice requirements for would-be lawyers are comparatively low. For instance, the U.K. requires one to two years of work experience—such as a training contract, where candidates rotate between departments in law firms—before becoming a licensed solicitor or barrister. In Germany, candidates complete a law degree, take one bar examination, then complete two years of supervised practice as a trainee before taking another law exam to become a fully licensed attorney. In the United States, the only state that requires supervised practice before becoming a licensed attorney is Delaware, where applicants must complete 12 weeks of what the state calls a “clerkship” under a practicing attorney—this can be completed before or after graduating from law school or taking the bar exam.

Decades of research in psychology and education supports the belief that learning by doing is an effective method for training.

As Deborah Jones Merritt, Andrea Anne Curcio, and Eileen Kaufman argue in “Practice-Ready Licensing,” more attention could be paid to supervised practice as a method not just to supplement traditional U.S. licensure but also to build more competent, practice-ready lawyers. Drawing on the results from a survey of one supervised-practice program in California, the co-authors write that the program “assess[es] more knowledge and skills than the traditional bar exam [emphasis added].”

Decades of research in psychology and education supports the belief that learning by doing is an effective method for training. As educational researcher Lauren Resnick explored in a 1987 American Educational Research Association presidential address, “Learning in School and Out,” school pedagogy relies heavily on theory and symbolic abstractions; outside of school, students use tools and context to understand and grasp complex situations in the real world. Apprenticeships, Resnick explains, offer one avenue for economic participation alongside effective learning. Unfortunately, even in the 1980s, she notes, this sort of training had fallen out of favor. She says:

In America, the story of the rise of vocational education in the skilled trades is simultaneously the story of the decline of apprenticeship. As the ideology of expanded schooling took hold and the nature of the workplace changed, we gave up opportunities for learning in the workplace in favor of school-based vocational education. School-like forms of instruction now dominate even in many “on the job” training programs. In the military, in community colleges, and in proprietary training institutes, the classroom culture often dominates, and difficulties frequently arise in the transition to actual job functioning.

Yet, as Resnick argued, a student is more likely to be able to extrapolate to solve an issue if they have not simply learned about a hypothetical in a vacuum..

That mindset, combined with skyrocketing college costs, has caused apprenticeships to make a comeback, albeit a small one. November 13–19, 2023, was the ninth annual National Apprenticeship Week in the United States, which included major addresses on the topic from Vice President Kamala Harris and numerous government officials. There is even a government-based clearinghouse dedicated specifically to data and information on the topic. While the idea of an apprenticeship is often linked to trade work, it is increasingly clear that the professions might also benefit from the model and its pedagogic methods. Indeed, early years of law jobs have always involved a heavy dose of on-the-job training. Experienced attorneys, for example, are expected to teach and mentor new law graduates in law firms or nonprofits. But this is almost always informal, nonstandardized, and hardly ever linked to documented licensure rules.

This all raises the question, what is an apprenticeship, by definition, and how might the model offer lessons for lawyer training and licensing?

What is an apprenticeship?

“If you talk to almost any adult in any profession, and you ask them how much of what you’re doing today you learned on the job or through experience versus that course that you took or the major that you majored in, most of them—except for maybe academics— will say that much of what they’ve learned has been through experience,” says Robert Lerman, a fellow at the Urban Institute’s Center on Labor, Human Services, and Population and professor emeritus at American University, who has devoted the past 30 years of his career to researching and advocating for apprenticeship. Lerman, who is trained as an economist, offers a baseline definition of apprenticeship: “Apprenticeship is a structured method of learning high levels of occupational competency. It is a qualification that emphasizes learning by doing as well as the apprentice’s productive contributions.” There is often a “well-planned structure of what the apprentice will learn through experience,” gleaned from mentorship and some self-study, allowing the candidate to arrive at both “competence” and “some certification of some kind,” Lerman says. Some classroom study almost always accompanies apprenticeships. But, he clarifies, “I always try to emphasize by saying apprenticeship is fundamentally about learning.”

Unlike many types of experiential learning, apprenticeships are paid. Indeed, they are often called “earn-and-learn models.” This is particularly pertinent given the skyrocketing costs of education.

Apprenticeships typically involve learning from an expert while engaging in deep substantive work. They differ from summer internships, Lerman says, in that an emphasis is placed on the apprentice productively contributing to the economic potential of the business.

“Apprenticeship is a structured method of learning high levels of occupational competency. It is a qualification that emphasizes learning by doing as well as the apprentice’s productive contributions.

Robert Lerman, Urban Institute’s Center on Labor, Human Services

Lerman first began researching the benefits of apprenticeships in the 1980s after a stint at the Department of Labor, when he began pushing the Office of Management and Budget to allocate more funding toward apprenticeships. At the time, he saw it as an important piece to solving youth unemployment. For jobs traditionally linked to apprenticeship models, government support for such programs is crucial, Lerman says, because of apprentice salaries, start-up costs, and the extra labor of mentoring. “The key constraint in building apprenticeship programs is finding enough employers to offer apprenticeships as a site for learning,” he says.

In many countries, apprenticeships are government regulated—this allows states to place standards around licensure and ensure proper education for professionals. In the United States, the federal government tracks “registered apprenticeships” or “government-sanctioned apprenticeships.” These are almost always in fields like manufacturing and construction. But increasingly many states have expanded to include roles in health care, such as dental assistants and paramedics, and in the hospitality field, such as hotel managers.

Since 2014 the number of registered apprentices has steadily increased—from just over 300,000 to almost 650,000 in the last year. In 2015 President Obama launched the American Apprenticeship Initiative, committing $175 million over five years toward expanding apprenticeships. The funds went for grants to nonprofit organizations, community colleges, and states looking to recruit employers, widen apprenticeship offerings, and offset start-up costs.

In the podcast Apprenticeship 2.0, Joseph Fuller, professor of management practice and director of the Future of Work initiative at Harvard Business School, calls apprenticeship a “rent-to-own model” that is doubly beneficial for both employers—especially those experiencing entry-level job churn—and employees. Apprenticeship “de-risks” the uncertainty around hiring, he says, even if the up-front cost is greater. It has the dual benefit, Fuller points out, of the employee seeing companies make investment in workers, something that might ward against “early-career churn.” Lerman agrees. It may cost a lot for a company to hire its first apprentice, but once it does, he says, the data and productivity costs usually indicate that is a strategic path forward. For instance, one study out of Canada found a significant return on investment for companies opting for apprenticeship—“employers received $1.47 back for every $1 invested in apprenticeship,” reported the Center for American Progress. An analysis of the American Apprenticeship Initiative Lerman contributed to showed that “the median ROI of the apprentices’ productivity was 44.3 percent, which means that every $1,000 an employer invests in the registered apprenticeship program generates $144.30 in total benefits.”

A central element in the success of any apprenticeship is defining the requisite skills and establishing skill standards.

While apprenticeships have a reputational problem in the United States, generally thought of as a “lesser” option than traditional degree programs, in other countries they are an important part of occupational pride and identity, says Lerman. Many point to Switzerland, as the gold standard, with youth unemployment sitting under 3 percent and one of the highest GDPs in Europe. These figures are in no small part because more than two-thirds of students in Switzerland opt for an apprenticeship after or during high school, which by no means limits them from choosing a university path later in life. Apprenticeships can also be a baked-in part of a degree. For instance, the U.K. offers “degree apprenticeships” where students study part-time while working.

Inspired by these successes, there has been some progress in the United States. One program in Colorado modeled after Switzerland—CareerWise—is a youth apprenticeship program that calls itself an “options multiplier.” The program’s website explains: “A student can start as an apprentice and end with a Ph.D., or apprenticeship can train a student to step directly into a bookkeeper position so they can go on to be a CFO. It’s a model of education that reveals multiple options to career and higher education.”

Lerman’s research and advocacy indicates that a central element in the success of any apprenticeship is defining the requisite skills an apprentice should learn. Put another way, if the core of an apprenticeship is a learning-by-doing pedagogy, key to that is what skills people are trying to learn and what standards they need to meet from a licensing and/or technical standpoint. Defining skill metrics has a two-part effect. First, it provides targets for trainees to build toward. Second, it allows industries to more easily build apprenticeship models based on those skill sets. For instance, the apprenticeship agency at the Department of Labor offers a “standards builder user guide,” which helps organizations define their minimum qualifications and outline their goals. Of course, embedded in this skill-based model is the ability for an industry to agree to the skills and standards necessary for success. For law, this may be harder said than done—as Merritt, Curcio, and Kaufman note in “Practice-Ready Licensing,” defining minimum competence is an integral step toward improving licensure practices overall.

Apprenticeship in law

How would these findings translate into law? How much do formal apprenticeships differ from the informal learnings that happen for newly minted lawyers? What is the relationship between apprenticeship and licensure?

To start, the legal profession already includes some elements of learning by doing. In law school, it comes through “experiential learning” requirements. In Delaware, on-the-job training is required. For others, summer internships form a crucial part of law school training. And of course, few believe that law students are fully “practice ready” when they graduate and pass the bar. But, apprenticeship debates do raise questions. Should states require more formal practice-based learning as a component of licensure? And, if so, should this process be paid? What are the exact skills and skills-based competency standards typical of most apprenticeship programs in law? And who sets those standards? What might this entail for the bar exam?

We have some evidence of what this might look like. Some states have been more revolutionary in this regard, turning to an apprenticeship model in lieu of law school. For instance, in Vermont, Virginia, California, and Washington, would-be attorneys can opt for an apprenticeship model instead of attending law school itself—a process sometimes called “reading the bar.” The programs, all created and formally run by the state’s respective bar associations, differ in their precise details but generally include a certain number of hours studying under an attorney licensed in that state. These programs, it should be noted, are not an alternative to the traditional bar; that is still required. Rather, they represent an alternative pathway to sit for the bar—and in some cases, like California, they include additional exams to gauge bar readiness.

In Vermont, would-be attorneys may opt for 25 hours of self-study a week under a supervising attorney in lieu of law school.

The most famous user of this method? Kim Kardashian. In a recent profile for GQ’s “Man of the Year” issue, she spoke about becoming a lawyer to follow in her father’s footsteps, as well as continue her criminal justice reform advocacy in earnest. She passed the “baby bar,” after several attempts, in 2021—a preliminary exam that decides whether people can continue on with their studies and eventually take the full exam. For a nontraditional student like Kardashian, self-study and apprenticeship makes sense. One other reason it makes sense? You don’t necessarily need a college degree.

In Vermont, where students do need an undergraduate education to “read the law,” would-be attorneys may likewise opt for 25 hours of self-study a week under a supervising attorney in lieu of law school. The firm Costello, Valente & Gentry in Brattleboro, Vermont, has become well-known for incubating self-study students and then hiring them after they pass the bar. In a profile with the Bennington Banner, now-associate Ian Goodnow describes working at the Vermont firm under partner Tom Costello, starting with low-level tasks like answering phones and doing intake. But the work ramped up quickly, he says, and Goodnow could soon productively join meetings with clients in addition to other substantive work. The associate was the fifth person to clerk at the firm and pass the bar exam. The Vermont Law Reader Program offers students the opportunity to forgo not only law school but also the cost of law school. And importantly, students are paid for their work with their supervisor.

Of course, there are both benefits and challenges associated with these programs (as there are with the traditional law school-to-bar progression). For instance, one of the apparent benefits of these programs relates to equity, particularly for nontraditional law candidates—those later in life with established careers who are pivoting or those with caretaking responsibilities or lacking in financial resources. They also have the potential benefit to help with rural access to justice (see “Speaker’s Corner”).

On the flip side, in most places where apprenticeship is an option, students are responsible for finding their mentor themselves—which, as has been pointed out in other fields, can be challenging for those with nontraditional backgrounds. It also makes the sort of formalization and standardization noted by Lerman important. One answer to this is the Daniel Webster Scholar Honors Program at the University of New Hampshire’s Franklin Pierce Law School, as mentioned in “Practice-Ready Licensing.” Each year, a small number of students apply after their first year of law school and gain access to a much more experientially rich program, where, upon graduation, they are granted New Hampshire licensure. But an additional problem arises when it comes to job mobility—most who choose such paths will not find reciprocity from other states if they want to move. What then?

Bar passage rates for self-study programs are typically lower than those coming out of an ABA law school. In Virginia, “from 2001 to 2019, the bar passage rate for those who studied in the Law Reader Program was 19% while the overall passage rate was 68%,” a blog post from the Indianapolis Bar Association stated.

Other states such as Maine, Wyoming, and New York offer some middle ground, requiring a combination of some accredited law school study that can be combined with years of self-study before taking the bar.

On top of all this is the impact of technology and AI on career pathways. Bloomberg’s Matt Levine, in a December edition of his column “Money Stuff,” writes that many of the core tents underpinning an apprenticeship model have been vital to professional services like law and finance. “You come in, you do research and grunt work and modeling, you learn the stuff, over time you build experience and knowledge and judgment, and eventually you become the senior person making decisions (and supervising the junior people).” But, he writes, what if generative AI more efficiently and maybe just as adequately does the work of the junior lawyer? The apprenticeship model “… is an expensive model, and if you can hire ChatGPT to do all the grunt work and dispense with the junior people, you might just do it,” he writes. “But if you don’t have any junior people who are doing the grunt work and learning the business, how will you find new senior people to replace you?” Could ChatGPT then replace the senior people? As we have written about previously, ethical problems arise when it comes to training and mentorship when thinking about how AI fits in.

Moving forward

What should one make of all this? Perhaps, as Joan Howarth argues in Shaping the Bar, a rethinking. She argues that supervised practice should be part of licensure, but it should not be called an “apprenticeship.” Instead, she prefers the term “clinical residency.” She explains:

As a path to becoming a lawyer in the United States, apprenticeships have been loose, unstructured, and based largely on personal relationships and connections. By contrast, medical residencies are a formal clinical stage during which new doctors are granted a training certificate to practice medicine under supervision before they are fully licensed. Borrowing “residency” from medicine situates supervised practice as an established, crucial stage in the educational progression of a new lawyer and drives home the need for formal structures, requirements, and assessment. Structured residencies will expand the lawyering competencies and strengthen the professional identities that law graduates bring to their jobs.

Like Howarth, authors Merritt, Curcio, and Kaufman distinguish between apprenticeship and the practice they propose in their lead article. “Supervised-practice pathways differ significantly from articling and other forms of apprenticeship,” they write. They note that such “pathways offer an option, not a mandate, which reduces both the demand for supervisors and the power that supervisors hold over candidates. Independent examiners provide a further check on supervisors’ power.” The legal profession has always required on-the-job training. The question going forward is both whether to further formalize and expand such programs as apprenticeships—of some stripe—and what skills and skill-based competencies should be required therein.