Most Lawyers Don't Know Constitutional Law

[Yosie]

-- or forget it promptly after the Final Exam-->

Last fall I asked my two Judicial District members of the California Board of Bar Governors to include "Constitutional Law" among the mandatory subjects on our "Mandatory Continuing Legal Education" requirements. Never heard back. Never!

MCLEThe mandatory MCLE subjects now -

Ethics -ok
Malpractice Prevention (Management of trust funds and client funds) -ok
Diversity (It's California - ok)
Recognizing and dealing with substance abuse (It's California - ok)
Stress Prevention???? (It's California - what do you expect)

-BUT NO CONSTITUTIONAL LAW.

Constitutional Law in Law School -You can get an ABA accredited law degree from an ABA accredited law school with only 2 credits of Constitutional law. 2 friggin credits. And that includes 42 USC 1983 and Criminal Procedure. Two friggin credits.

Constitutional Law on The Bar Exam
Not covered on the Multi-State (Multiple Choice Bar Exam).

Twenty to forty minutes on the six to twelve hours of essay exams.

As I opened with -- Last fall I asked my two Judicial District members of the California Board of Bar Governors to include "Constitutional Law" among the mandatory subjects on our "Mandatory Continuing Legal Education" requirements. Never heard back. Never!

You wonder why we have the "Patriots Act" and Attorneys General approving torture.

[mongo]

1. I've probably studied more constitutional law than most

attorneys - at least in the area of the 1st ammendment and "obscenity"

Before going into business, once I had talked to a local attorney about being my lawyer on retainer, I realized that I needed a specialist.

The local attorney didn't have a clue.

[happyslug]

2. In My experience Constitutional law is rarely used.

Almost all of an attorney does is basic statutory and case law, rare to cite the Constitution. 99% of my clients do NOT have a constitutional problem and if they do they have to go to an attorney who has the time and money to practice Constitutional law. This is why the ACLU does a lot of the Constitutional law, it has the money to hire the attorney who can spend time just on that item. Big Corporations do the same. In fact Big Corporations are why the "Due Process" section of the 15h amendment was so wildly expanded to include the Bill of Rights. By expanding the "Due Process" clause big Corporations were able to restrict the power of the states to control them in from the 1880s till today. Most individuals can not AFFORD such "due process" thus the First Amendment was not ruled to be affective on a state till after WWI for Corporation did not care about the First Amendment, they cared about the "Freedom of Contract". i.e. That the US Constitution forbade the states from restricting what a Corporation could do (and than used the same Constitution to rule Congress had no rights either, leaving Corporation free to do as they wanted to do).

That is the problem with most constitutional litigation, unless you can afford to take the case to the US Supreme Court don't even try to use it. Now most of the laws I do use do reflect Constitutional decisions of the last 100 years but most of what I practice is NOT constitutional mandated but just statutory (or even common law derived). For example who can emancipate a minor? In Some states that is set by Stature, in my home state of Pennsylvania we follow the Common Law rule as to emancipation of Minors (i.e. it is up to the Parents to emancipate a minor).

Other example is Landlord and Tenant, set by stature or if Public Housing set by Federal Regulations. The Regulations reflect the rulings of the 1960s that Public Housing is a property right but a right that can be eliminated for "Good Cause". I end up using the Regulations in such cases NOT the Constitution. As to the private Landlord and Tenant law I again use the Stature, Case law and the Rules of Civil Procedures NOT the US Constitution (Through the case law, the Statutory and the Rule of Civil Procedure reflect the constitutional rulings of the last 100 years).

Thus I have to say for most practicing attorney anything more than a basic understanding of the Constitution will never be needed in their practice of law. The number one complaint against most attorneys is mis-approbation of funds so that is reflected in the BAR exam. In most lawyer's practice taking his or hers client's funds is more of a problem than constitutional law.

Now an attorney does need to know the Constitution but in almost every case that I had to cite the Constitution I had to do research on the Constitutional issue anew or passed it off to someone who concentrate on such constitutional issues. A general Practicer can not really handle anything but the most fundamental constitutional issues (and even then the rules are set forth by Stature). Thus all an attorney needs is a basic background unless he is dealing with that constitutional issue on a constant basis.

[Yosie]

3. I see your PA point - but look at our CA "fluff" - Why not add Con Law

We have such "required" topics as:

--Diversity In The Practice of Law
--Stress Management
--Substance Abuse

And since I am also admitted in the Commonwealth of Pennsylvania, I frequently send the relevant certificates to Harrisburg --- and most of the California "fluff" gets bounced back to me. At least Pennsylvania gives me credit for the "substantive" courses.

Back to the Constitutional Law issue.

1. Our Attorney Oath in California is set out at Code Civ. Proc., §278, and provides:


"Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license. "


I personally know that Pennsylvania has a similar oath.

2. Look at what some of our legislators do -- especially the law school graduates among them -- reflects a lack of recent exposure to Constitutional Law.

3. Con Law has got to be part of our basic skills.

4. I have to "specially deny" (see, I remember my Pennsylvania Rules of Civil Procedure) your statement that "This is why the ACLU does a lot of the Constitutional law, it has the money to hire the attorney who can spend time just on that item. " And I have to "answer" that based on my personal information and personal experience in the United States District Court for the Western District of Pennsylvania and the United States Court of Appeals for the Third Circuit, the ACLU does not "hire" the attorneys -- we are volunteers. (The case involving the creche in the City-County Bldg lobby was brought by a volunteer; and I tried several First Amendment cases for the ACLU, pro bono, with out fee).

5. As to the content of most courses - I know that the ACBA and the PBI have some passable programs. I did come to PA for the "Elder Law" courses, and for the course in my narrow specialty.

6. My specialty is sufficiently narrow - without that much CLE - that I would take Con Law for "culture" and curiosity.

7. As long as we have take such California "fluff" courses as "Diversity In The Practice of Law" and "Stress Management" and "Substance Abuse" (which PA doesn't recognize) -- why not add Con Law.

Con Law is our heritage as Americans and Lawyers.

[happyslug]

5. First Comment, I tried to understand Constitutional law

For example the oath we takes as lawyers is mandated by the US Constitution (We are technically offers of the Court and as States officials must take an oath to "Support" the Constitution of the US, most states add their own state name to the oath).

Yes I know most of the Attorneys are Volunteers for the ACLU, but the ACLU does provide some support and structure that I as a Legal Services attorney do not have ready access to (I have access to some sources but I tend to leave the State Legal Services or the Pittsburgh or Philadelphia Legal Services handle those cases).

My point was my practice rarely deals with Constitutional issues, the last set was the Grandparents rights cases which I argued successfully locally after the US Supreme Court basically striked them down as interfering with the Constitutional right of a parent to raise their children. Except for that series of cases (Which I was able to obtain on my own and through Pennsylvania Legal Services) I have rarely used Con law. It is just not in my field of practice and many attorneys have the same problem.

I also have a problem in that I barely have the time to do my CLE credits on issues I do deal with, I just don't have the time for a course just on Con law.

[Yosie]

8. My primary practice is 180 degrees away from my "Pro Bono" Practice

Primary - IP

Pro Bono - 1st Amendment Rights of Military People (same issue whether its Freepers attacking Clinton, or Lefties attacking Nixon and Bush). VA Appeals. 1st Amendment Rights of Religious Minorities (not just my religious minority - but all religious minorities - thats the Progressive and ACLU way :-) ).


And this whole "ban" on stem cell research is - to me - an "Establishment" of religions that ban stem cell research, and limits on the "Free Exercise" of religions that permit stem cell research and stem cell derived therapies. This is my current compulsive obsession of the year.

Also - I am absolutely convinced that these "Defense of Marriage" bills are Establishment of fundie religions and effective bans on the Free Exercise of "Progressive" religions -- as well as a clear violation of the "Equal Protection" clause. That is another current compulsive obsession of mine.

I am an "older lawyer" - and I get very discouraged when other "older lawyers" refuse to even appreciate Con Law issues - whether it is their distance from Law School, or the distance from an intellectually rigorous discususion of Con Law and constitutional issues. And, if we can be "forced" to take "Stress Management" and "Recognizing Substance Abuse" and "Diversity In The Legal Profesion" - why not Con Law? We are the Guardians of the Constitution!

[tccoyle]

4. When the Constitution and the real world meet

After working for an attorney for the last 7 years, I would agree with you...however, even when you don't expect it, the Constitution can come up and bite ya...

Clients comes in, one basically on retirement disability, the other working. Plan a Chapter 13 to save home from foreclosure. State withholds overpayment from retirement funds, killing plan. Stay violation? Property of the estate issue? State claims sovereign immunity...similar case argued before the SC two weeks ago...

And people claim attorneys get paid to much...

[happyslug]

6. yes con law can bite you if you not careful

For example in the Grandparents rights cases (I cheered when that decision came down I was tied of fighting Grandparents rights cases where the Grandparents and the parents disliked each other but the Court order the Children to see their Grandparents over their parents objections). You have to understand the Constitution to be a lawyer, but not in the detail a true constitutional lawyer would have. My point was a lawyer needs enough Con law to know when he is dealing with a Constitutional issue but not so much he can argue the con law issue himself without more preparation.

[Coastie for Truth]

7. Limited Exposure to Con Law

I am a card carrying, dues paying ACLUer and when I thought about a major cataclysmic career change (engineering -> law) I took a "Business Law" course and a "US Constitutional History" course at a local university (we used a bunch of texts and collateral reading books - including the same Con Law case book that they used across the street in the Law School).

When the kids were entering Law School they had Con Law summer readings before they entered law school (and that was several years apart) -- and Dad learned a lot of Con Law at dinner the summer (1st and 14th Amendments).

I found Con Law fascinating.

My opinion - after watching our Congress people (including Senator Santorum - who claims to be a Penn State/Dickinson Law School graduate) - most general citizens need to know a heck of a lot more Constitutional History (including how to read a Supreme Court case), lawyers - as "guardians of the Constitution - need to have a knowledge of key issues, and I think it is an insult to the Bar (watching Lawyer Santorum) as to how little Constitutional Law and Constitutional History our Congress people know or understand.

[RPM]

9. 2 hours of con law???

We had 4 hours of straight Constitutional Law and 3 of Constitutional Criminal Procedure - and I graduate in May. :-) Sounds like more than required????

[Poor Richard Lex]

10. I practice criminal defense

and I talk abou the constitution as much as I can hehe, esp 4th, 5th 6th amendments