Juris Magazine- Winter 1980

WINTER

1980

THE PRACTICUM CONCEPT EXAMINED

,E ditor's Note ~------------------------------------~~

In the professions, the tendency to gauge success in terms of monetary gain is an ever-present pitfall for the unwary. We have been so conditioned by .our upbringing to equate quality with dollar signs that only self-searching and real effort to counter socialize ourselves can overcome the conditioned response to high salary offers. I contend that the quality of life, both social and in the profession, is the real goal to achieve and the true measure of success.

I

A corollary of this maxim is the tendency of the professional toward security.

Many have observed that in our youth, when we perceive that there "is nothing to be lost" we as a culture are more prone to take chances for what we really believe in. Later in life, when family needs are paramount, we tend to guard our financial security and be more conservative. In old age, we protect our gains and become reactionary. I submit that th,is is not life and certainly not a career plan for the professional. As we become more proficient in our profession, we must use our skills to improve the quality of societal life, or betray our profession and the maxims which governed our education. This is especially true in the legal field where we are pledged to a search for the elusive "Justice."

Ask the elderly. Those at the end of their life invariably say that they would have taken more chances, lived more fully, and consequently accomplished more.

They, through perspective, can see the true waste of a mundane and secure existence. Life is chance and opportunity soon slips away.

I

JURIS examines the quality of our preparation for the legal profession in a series of analyses of the Practicum Concept in this issue. The quality of our Juvenile Justice System is also considered. E.R.I.S.A. has attempted to improve the quality of life of the retired, and JURIS deals with its creation and goals in the following pages.

We hope that these articles will inspire a quest for quality in both the social and professional lives of our readership.

Sincerely,

Michael J. Calabro Editor-in-chief

"Il-lF.~'E.SN ELAW SCHOOLNEWSMAGA2'jNF,

VOL XV No.2 -

Winter 1980

Editor-in-Chief Michael J. Calabro Associate Editors John J. Braszo Lauren L. Blackburn G. Anthony Siplin Assistant Editors Cynthia M. Frederick Paul McGrath I

Faculty Advisor John J. Sciullo Photography Paul McGrath Michael J. Calabro I

Illustration Tony Bitner Staff Members: Paul Giba, Philip Ebersole, Wayne Spaeth, Pamela Haywood, Michelle Lally, Chris Fuhrman.

JURIS is a student publication of the Duquesne University School of Law. Views and opinions expressed are not necessarily those of JURIS or Duquesne University. All manuscripts and comments may be addressed to JURIS, Duquesne University School of Law, 600 Forbes Avenue, Pittsburgh, Pennsylvania 15219.

Telephone (412) 434-6305 Copyright 1980 Duquesne University

In this issue

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3 E.R .I.S.A. 5 FOOTNOTES 6 INAUGURATION OF

CONCEPT

9 PROFESSIONAL

FATHER NESTI

RESPONSIBILITY SYMPOSIUM

7 INTERVIEW WITH

10 COMMENTS ON THE

FATHER NESTI

2

8 THE PRACTICUM

PRACTICUM CONCEPT

11 QUALIFIED

ENDORSEMENT OF PRACTICUM CONCEPT

12 JUVENILE JUSTICE 14 ESTATE PLANNING

ERISA n Labor Day, 1974, the Em-

O ployee Retirement Income Security Act (ERISA) was signed into law . The Act is largely the result of Congressional testimony by hundreds of workers who saw the pensions they counted on evaporate when the companies they worked for folded. A major example was the Studebaker closing in 1964 which left at least 2,000 workers stripped overnight of their expected pensions. Responsibility for carrying out the law's provisions is assigned to the U.S. Department of Labor, the Internal Revenue Service of the U.S. Treasury Department, and the Pension Benefit Guaranty Corporation (PBGC), a government agency created to administer the law's plan termination insurance provisions.

Title I of ERISA is administered by the Secretary of Labor through the Assistant Secretary for the Labor Management Services Administration. Day to day operations are carried out by the administrator of Pension Welfare Benefit Programs whose office guidance to 24 field offices.

Generally, Title I sets minimum compliance criteria for private employee pension plans in the areas of coverage, partIcIpation, accrual and vesting, fiduciary responsibility, reporting and disclosure, and joint and survivor options.

Under the reorganization plan of 1978 between the Treasury and Labor Departments, the primary respon sibility for participation, vesting, and funding standards is with the Treasury Secretary while primary authority for standards of fiduciary responsibility, reporting, and disclosure remains with the Labor Secretary.

Nothing in the agreement affects the Labor Department's ability to enforce ERISA. But in bringing an enforcement action in areas transferred to the Treasury Department, the Labor Department is bound by Treasury rulings and regulations.

The Office of Pension Welfare Benefit Programs conducts ERISA investigations through the LaborManagement Services Administration offices in the field. Although many investigations are based on com-

• Role of the U.S. Department of Labor in the Administration of Title I. • Private Employee PenSion Plans • An Overview

by Cynthia M. Frederick plaints or on reason to believe that a violation of the Act may have occurred or is about to occur, the office also conducts a continuing program of review and audit of the financial records of employee benefit plans.

The enforcement purposes of such audits are to safeguard plan assets, to provide technical advice to plan administrators, and to clari fy discrepancies revealed in filed financial reports.

The Labor Department has adopted the policy of not informing plan officials or others as to the basis of its ERISA investigations, but at the conclusion of the review appropriate plan officials are informed of the findings .

COVERAGE:

Unless specifically exempted by the Secretary of Labor through regulation, ERISA covers pension plans tha t are established or maintained by an employer engaged in commerce or by an employee organization such as a labor union. The plan must provide deferred compensation either at or after retirement.

Plans not covered include governmental plans, church plans not electing coverage, unfunded "excess benefit" plans, and plans maintained solely to comply with workmen's compensation, employment compensation, or disability insurance laws.

Plans maintained outside the U.S . are not covered if virtually all the participants are non-resident aliens.

Even though the PBGC offered coverage retroactive to July 1, 1974, ERISA itself is generally prospective; therefore, the estimated 112 million workers whose plans collapsed before the effective date of the Act are still excluded from coverage.

PARTICIPATION:

An employee becomes a "participant," a member of the plan, upon meeting age and service requirements as specified in that plan . Generally, ERISA provides that if a pension plan bases eligibility for participation on age and service, participation may not be denied or postponed beyond the time the employee reaches age 25 and completes 1 year of service. Pension plans may not exclude a parttime or seasonal employee if that employee has a "year of service" , which is defined by regulation as I ,000 hours of service during a 12 month period.

Defined benefit plans, which are pension plans specifying the benefit to become payable but not the contribution required, are permitted to exclude from participation any employees beginning employment within 5 years of the plan's normal retirement age . Participation cannot be denied to an employee beginning late in life in a defined contribution plan such as profit sharing, stock bonus, and money purchase plans because the contribution s, and not benefits to be collected , are fixed.

Once the plan's eligibility requirements are met, an employee must begin participation at the start of the next plan year or 6 month s after meeting the requirements, whichever is earlier.

ACCRUAL AND VESTING:

Upon partICIpation, pension benefits or credits begin to accrue ..

ERISA does not require that an employee accrue benefits for each year of service; rather, accrued benefits are based on years of participation in the plan. The amount of the benefit is not regulated by law, so the amount of the pension benefits accrued can only be determined by examining the provisions of the par-

3

ticular plan in question. Any accrued benefits are forfeitable until vested, at which time the employee generally has a right to receive them at retirement even if he leaves his job before reaching retirement age.

Under ERISA's minimum vesting standards, an employee's right to benefits becomes nonforfeitable upon the attainment of normal retirement age as specified in the plan. An employee is fully vested in rights to accrued benefits derived from his own contributions, if any, and he has a nonforfeitable right to benefits derived from employer contributions under I of 3 minimum vesting schedules available to plan sponsors.

Under any of the minimum vesting options, the employee must be at least 50070 vested after 10 years of service and 100070 vested after 15 years, regardless of age.

FIDUCIARY STANDARDS:

The Department of Labor scrutinizes the investment and administration practices of plan trustees and money managers under ERISA fiduciary standards.

A plan fiduciary is anyone exercising discretionary authority and control over plan assets or management or anyone having administrative responsibility, including paid investment advisors. A fiduciary is subject to the prudent man rule; he must operate in strict accord with plan documents, diversify investments to minimize risk of loss, and discharge these duties solely in the interests of plan participants.

A fiduciary is prohibited from causing or allowing transactions between parties-in-interest. Statutory class exemptions to prohibited transactions are written into the Act. For example, loans by the plan to partiesin-interest who are participants or beneficiaries are exempted through ERISA regulations if they are available on a nondiscriminatory basis, bear a reasonable rate of interest, are adequately secured, and are made in accordance with plan rules. The Secretary of Labor has established procedures for considering additional class and individual exemption requests. An exemption will generally not be granted where not administratively feasible, where deemed not to be in the best interest of the plan, or where rights of par4

ticipants and beneficiaries are deemed inadequately protected.

Several remedies are available when a fiduciary duty is breached. A breaching fiduciary can be held personally liable for plan losses resulting from the breach; profits made through improper use .of plan assets can be ordered restored; the Internal Revenue Service can impose an excise tax on the full amount of the prohibited transaction; and a court can order additional remedial or equitable relief as appropriate, including removal. However, fiduciaries may be indemnified to limit possible personalliability.

To protect against fraud or dishonesty, a fidelity bond must be maintained. The bond must be placed with a corporate surety approved by the Secretary of the Treasury in the "treasury list" as published annually in the Federal Register, must cover all plan officials who "handle" plan funds or other property, and must name the plan as an insured on the bond. Generally, the amount of the bond must equal or exceed 10070 of funds handled during the plan's preceding fiscal year. The bond is required to provide for at least a one year discovery period and where more than one plan is involved there must be a pay over rider allowing direct reimbursement to the plan in the event of loss. The plan must have no control or significant interest in the business operation of the agent or broker from whom the bond is purchased.

REPORTINO AND DISCLOSURE

One of the most significant reforms of ERISA is that under the disclosure prOVISIOns, plan participants and beneficiaries are provided or have access to information concerning their benefit entitlements.

Some information must be provided automatically by the plan administrator and some must be requested in writing. Two of the most valuable documents are the summary plan description (SPD) and the individual benefit statement. The SPD, which outlines the terms of a particular plan, is furnished automatically within 90 days to new participants and once every 10 years thereafter unless the plan is materially modified, in which case the revised SPD must be distributed within 5 years. The in-

dividual benefit statement, which indicates and explains the individual participant's calculated benefits, is furnished once each year upon written request by the plan administrator.

Reguiations promulgated under ERISA require SPD's to be filed with the Secretary of Labor and to meet certain style, format, and content requirements. All SPD's must be written in language calculated to be comprehensible to the average plan participant. Participants must beware that in the event of conflict between the SPD and the plan document, the more detailed plan document prevails. Copies of the complete plan document, the latest annual reports, and documents under which the plan is established or maintained, such as the collective bargaining agreement or the trust agreement, must be made available to plan participants, to supplement the SPD at the principal office of the plan administrator and at other appropriate places.

The overall financial status of the plan is outlined in the summary annual report furnished automatically each year to participants and beneficiaries. Among other things, it indicates the value of plan assets at the close of the plan year, whether that figure is higher or lower than at the start of the year, the amount contributed to the plan, whether contributions were sufficient to keep the plan funded in accordance with ERISA standards, the amount disbursed during the year in benefits, and the total number of participants.

The information on the summary annual report is provided in greater detail to the government on a Form 5500. The annual filing of Forms 5500 with the Internal Revenue Servi<:e provides information which permits each of the three monitoring agencies to evaluate plan compliance with ERISA. .

Since the law's effective date, several regulations streamlining and coordinating reporting requirements have been issued. Most recently, notice of the adoption of revised reporting forms enabling small employee pension plans subject to ERISA to file a full financial report triennially, rather than annually, was released by the Secretary of Labor; the plans will file a brief registration statement, (continued on page 5)

Footnotes The American Bar Association, Law Student Division and Student Bar Association Third Circuit Fall Conference was hosted by the Duquesne University School of Law during the weekend of October 24th to 26th. Law sc hools within the Third Circuit were repre s ented b y ABA/ LSD representatives and SBA officers. The con ference sponsored a series of presentations aim ed at introducing many fields of law to interested law students in conjunction with the local chapters of Phi Alpha Delta Legal Fraternity. The field s of Taxation, Labor and Health Law, and American Civil Liberties Union Work were represented . Lawyers from the Federal Bureau of Investigation , politics, and financial areas al so were present to speak and answer questions. Highlighting the Conference was a presentation by the National Professional Student Interdisciplinary Council on the topic "Concern for Dying."

Throughout the weekend, the representatives met in joint and individual sessions discussing and formulating programs and policies for the upcoming year. Much effort was put into the creation of a platform from the Third Circuit law schools

ERISA,

continued

Form 5500-R, in the interve ning years. Similarly, the filing of Form EBS-l has been di scontinued where the SPD, which is required to pro vide identical information , is on file with the Labor Secretary.

JOINT AND SURVIVOR OPTIONS:

For most employees who retire from covered employment within a specified period or reach normal retirement age while in employm ent covered by the plan , a joint and survivor annuit y mu st be automatic unless the emplo yee rej ects it in writing. ERISA requires that all retirement plans which pro vide that parti cipants may receive benefit s in

which will be presented to the ABA and NASBA Conference in New Orleans, next summer. Topics such as school funding, ERA, and law education policies were included in the platform .

The next Third Circuit Conference will be held in t he spring at another of the Third Circuit law schools. The exact location is undecided at the present time.

Frank N. Crossland, a 1980 graduate of Duquesne Law School, recently accepted an appointment to the faculty of the Duquesne University School of Business and Administration. He is currently an instructor in the fields of Commercial Transactions Law and Federal Income Taxation. Mr. Crossland is a 1977 graduate of the Duquesne Business School.

The annual Duquesne Law School Picnic was held on Saturday, October II th at South Park Cottage. The Student Bar Association sponsored the event which drew approximately 100 law students and guests. Softball and football with faculty members and an afternoon of socializing highlighted the function and the cool autumn weather provided the backdrop .

the form of an annuit y must al so provide for a qualified joint a nd survivor annuity. The surviving spouse' s annuit y must be at leas t 50 0J0 of the actuarial equivalent of a single annuity for the parti cipant' s life.

PREDICTED GROWTH:

Effective policing of private employee pension plans will increase in significance as these plans continue to grow . Recently the Pension Welfare Benefit Programs released a private pension fore casting model which was developed under a research contract to predict cha racteristics of the pri vate pen sion sys tems over the next 20 years. One of the most interesting forecasts is that although there will be little increase in coverage or participation by 1995, there will be

J uris no tes the passing of Earl S. Keim, a graduate of Duquesne University School of Law and former president J udge of the Cou rt o f Common Pleas of Westmoreland County.

A veteran of World War II, Judge Keirn experienced an outstanding legal career. After establishing a successful general legal practice, he served as an assistant District Attorney and District Attorney of Westmoreland County; and a Justice of the Supreme Court of Pennsylvania.

He wa an avid participant in public affairs and a member of and popular gue t speaker for numerous county and state orga nizations. He maintained a profou nd interest in the work of charita b le organizations.

Judge Keirn was indeed a "judges' judge and a just and humane administrant of the law."

Correction. JURIS regrets the inadvertent omission of Professor Gray's name from the list of speakers at Law School Orientation, which appeared in Issue No. I of this year.

Small opportunities are often the beginnings of great achievements.

great growth in the assets o f the private pension system. Contributions are cal culated to grow from $32 billion in 1975 to $137 billion in 1995.

The annual rate of asset growth is projected to increase tenfold from $33 billion in 1975 to nearly $340 billion in 1995 . There should result a major increase in the level of total accumulated assets from $211 billion in 1975 to almost $3 trillion by 1995 ($900 billion in 1975 dollars) which is almost 1/ 3 of the nation 's gross natio nal product.

Though pension plan assets will inc rea s in g ly affect the national econom y, the spirit of ERISA as a worker protection law with th e social purpose of providing retirement income to millions of workers and their families must be preserved.

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5

Duquesne: A Look to the Future The Inauguration of Father Donald S. Nesti, C.S.Sp., President of Duquesne University responsible freedom as well as the cultivation of the 路i ntellect." It is these values, these tenets upon which Duquesne is built which will help us to discover directions for the future by overcoming the turbulence of today. He said, "If we are willing to transcend the boundaries which we create in our hearts and minds, we shall contribute to the emergence of a future global civilization."

Father Nesti's closing remarks were his pledge as President of the University . These words convey an attitude which might well be adopted by all.

I pledge myself to lead all to be prophets of hope. I

refuse to let us be victimized by apathy and discouragement. I will do all in my power to avoid a climate of undue seriousness and apprehension even though we live in an anxious age. There must be room for celebration and joy, and laughter and good fun as we are about the serious task we have undertaken.

I pledge to be a leader who builds trust, who calls forth creativity from all, who listens with an understanding ear, who seeks equity in practice, who speaks with simplicity and directness, who values the presence of all, and who can appreciate that one's greatest strength is often shown in the admission of one's weakness.

Excellence requires the greatest asceticism in the application of one's mental faculties. It also implies that all of us - faculty, students and administration - are committed to the necessary attitudes and virtues such as openness, honesty, patience, self-sacrifice and selfdiscipline. Excellence can only be achieved if our basic attitude is one of service rather than being self-serving.

- The Reverend Donald S. Nesti, C.S.Sp. Taking yet another step on the road to excellence, friends, family, alumni and members of the Duquesne community gathered on the Bluff, October 3, 1980 to join in the celebration of the inauguration of the Reverend Donald S. Nesti, C.S .Sp. as the Tenth President of Duquesne University.

The day-long celebration commenced with mass in Peter Mills Auditorium and was followed by an open luncheon and the inauguration ceremony in Duquesne's Student Union.

An informal reception on Centennial Walk gave people the opportunity to meet with Father Nesti following the ceremony.

Law School Dean Ronald R. Davenport and other Law School faculty and administrators attended the inauguration joining faculty members and administrators from other schools and areas of the University. Also in attendance were The Pittsburgh Council On Higher Education and representatives from many other colleges and universities surrounding Duquesne.

Father Nesti's inaugural address, "Beyond Frontiers," discussed the past, present and future of Duquesne. Father Nesti noted the rich heritage possessed by the University and reaffirmed the values to which it is dedicated - "the sacredness of persons, the primacy of life, the inviolability of 6

Interview With Father Donald Nesti An Informal Look At Duquesne's New President y background is simply that I am from this neighborhood - from Western Pennsylvania. I was born in M Monessen. and I was raised in Clairton. I went to public schools all my life, and I went to the University of Pittsburgh, and after going to the University of Pittsburgh, then I went into the seminary. I was 21 at the time. And I didn't know that the Holy Ghost Fathers even ran Duquesne University. I went I year just to Latin and Greek - and more Liberal Arts studies at our place in Philadelphia, which was 2 years of College at the time. Then after that I went to Norwalk, Connecticut, and I did my last 2 years of Philosophy and 4 years of Theology, and then after I was ordained in 1963, in 1964 I went to Rome for 6 years. And I did a Licentiate in Theology there, and then I did a Doctorate in Theology. While I was working on the Doctorate, I spent 2 years in England doing research for my dissertation, and after that I came back to Duquesne University and taught here from '70 to '75, full time, and then 1 taught part time, in the Theology Department, but I also taught some courses in the Music School, particularly in the liturgical music program there. From '75 to now, I left the university full time, and I went back to work with the province of the Holy Ghost Fathers, Eastern Province in the United States, and I was Director of the Seminary Program for a while, and then I became Director of Planning and Research. And while I was Director of Planning and Research for the Eastern province of the Holy Ghost Fathers, I also worked with our administration and the central administration. And I worked for a year with them, helping to plan for what we call a General Chapter Meeting, and that took place in the month of July outside of Paris, and we spent the whole month of July. It's more or less like a large Board of Directors meeting, I guess, and you try to review your vision and what you want to do, and what you want to do with your goals, and your objectives for the next 6 years. We have one of these meetings every 6 years. I also served on the Administrative Council for the Holy Ghost Fathers in the province for a 3 year period, and after that time 1 landed here.

And so that's what I'm doing. And they tell me that I'm the President of Duquesne.

I thought that the Law School Orientation Program was rather well done. It's the first Orientation I have been to in the Law School. It's a bit different than you would have on the undergraduate level. 1 also went here. Theirs was a bit longer. I presume that I was involved in the very first and initial introductory remarks by Dean Davenport, by Professor Gedid and Professor Gray, and Judge Diamond was there.

But I was very pleased to be involved in that. I could sense however, that every student there was sort of on edge, wondering what was going to happen, what to expect, coming into the big School of Law, coming from different undergraduate degrees, or even some people from ot her professions, I guess, that had been working for a while and had been wanting to study law and just wondering what the whole thing is going to be about. I felt pretty much like that because I was only President for about a week or two. I could understand their experience ... Sure, 1 could understand their experience.

1 think the President has to be deeply involved in financial matters. We're concerned with a University and in the context of that University, we have .eight different schools. And it's a matter of watching the finances, assessing the needs of each school, the needs that the schools have in themselves, the needs that are specified by accrediting agencies, the needs of the University over all, and all of this, naturally, in relationship to the greatest needs, which are the needs of the students that we're serving. And when you take all of those needs and you try to assess them, then I think your budget has to stand as sort of a testimony of where your priorities are .

One of the biggest criticisms that has ever been rai sed against or in relationship to Duquesne' s fund rai sing effort s is that we have not witnessed, to the community at lar~ e , I enough collaboration . This is the criticism that is raised . In order to try to respond to that kind of a thing, I think that it has been the concern of the Board of Directors 1 hat our fund raising be coordinated and we do it in a collaborative way.

And I support that very much. It does not make a good impression if one, two, or three different constituencies in the University are raising money, and perhaps you can point to the same people, and they say "Well, you know how docs this proposal relate to this proposal, relate to this proposa l, in the context of the University?" So, this fund drive that has been developed by the Board of Directors and the University itself - let's say, it has been developed by the University in collaboration with the Board of Directors, and has the support of the Board of Directors - I feel is a very good step in the right direction of collaboration and coordinating our efforts and I think this will make the biggest impression on the (continued on

paf!.~

15)

7

Professional Responsibility Proposed Changes in the Model Rules n September

19,

1980,

Du-

O quesne University School of Law hosted a symposium in Peter Mills

Auditorium, Rockwell Hall, to discuss the proposed draft of the Model Rules of Professional Conduct. The purpose of the meeting was to expose the Pittsburgh legal community to the tremendously significant issues inherent in the proposed changes to the Code of Professional Responsibility, which many view as radical. As well, the event served to heighten awareness of the impending changes and to place the current American Bar Association (ABA) Code, which Pennsylvania had adopted, into historical perspective.

The event was initiated by the Law School, through the efforts of Professors Conti, Mansmann, Murphy, and Gedid. As plans for the presentation took form, joint sponsorship with the Allegheny County Bar Association and the John H. Sorg Fund produced the final symposium format.

The day began with a reception at the law school for the distinguished speakers. Faculty and students were present and discussed a variety of subjects with the guests. Following a luncheon, the program began in earnest.

Professor Geoffrey C. Hazard, Esquire, the acting dean of the Yale School of Organization and Management, professor of law at Yale Law

School, and the reporter for the ABA Commission on Evaluation of Professional Ethics addressed the gathering, following opening remarks by Dean Davenport of the Duquesne Law School. After a question and answer period, with Professor Hazard, three panel discussions were conducted, featuring both proponents and opponents of the various proposed rules.

Professor Cornelius F . Murphy, Jr., of the Law School, moderated the first panel on "The Responsibilities of a Public Profession."

Speakers were Archibald R. Murray, Esquire, the executive director and attorney-in-chief of the Legal Aid Society of New York City and Professor James R. Elkins, Esquire, associate professor of law at West Virginia University and Visiting Scholar at the Institute for the Interprofessional Study of Health Care at the University of Houston College of Law. Next, the topic of "An Organization as Client" was addressed and moderated by James F. Bresnahan, S.J., Esquire, professor at the Jesuit School of Theology in Chicago. The subject was debated by Thomas D. Morgan, Esquire, the Dean of Emory University School of Law, Atlanta, Georgia and L. Clair Nelson, Esquire, a senior vice-president of Champion International Corporation, Washington, D.C.

The third panel highlighted "The Ethics of Advocacy" and was moderated by the Hon. Joseph F. Weis, Jr., Judge of the United States Court of Appeals for the Third Circuit, Pittsburgh, Pennsylvania. The speakers were Irwin Birnbaum, Esquire, a practicing attorney and lecturer in the field of Scientific Litigation, Chairman of the ATLA committee on Professional Responsibility, and adjunct professor at Syracuse University, New York; and the Hon .

Betty B. Fletcher, Judge of the United States Court of Appeals for the Ninth Circuit, Seattle, Washington.

The highly structured program was formulated with the assistance of Assistant Dean John A. Parse of Duquesne Law School. Michael D .

McDowell, Esquire, represented the Allegheny County Bar Association, Young Lawyers Section . Thomas J. Reinstadtler, Jr., Esquire, the chairman of the Professional Ethics Committee of the Allegheny County Bar Association and James I. Smith III , Esquire, the Executive Director of the Allegheny County Bar Association infused that body's goals into the program. James M. Houston, Esquire, Chairman of the John H. Sorg Fund Committee, provided inpuL on behalf of the Fund .

Approximately 190 attorneys, judges, law professors and law students were in attendance .

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8

The Practicum Concept From Law School to Law Practice n the fall of 1979, then-PBA President Sidney Krawitz formed a Ispecial committee to stud y problems related to entry into the practice of law. Originall y called the" Preceptorship Committee," the committee 's charge was to study the problem s of attorneys entering law practice and to make recommendation s to help new attorneys "bridge the gap" from law school to law practice.

Over 57 percent of the Pennsylvania Bar Association 's members are "young lawyers" - law yers who are under the age of 36 or who have practiced less than five years. With the demise of the preceptor system, there has been no formalized way to assist newiy admitted attorneys during the transition phase into the practice of law. The Committee to Study Problems Related to Entry Into the Practice of Law (as the committee is now named) was formed to address this issue.

The committee's composition includes lawyers who represent a wide spectrum of type of practi ce, geographical location, size of firm and number of years of practice . A number of young lawyer representatives are members of the committee and have been actively involved in preparing the committee' s proposed draft.

The committee's initial di scu ssions and deliberations revealed a strong belief among the committee members that the lack of a means by which young lawyers might be assi sted in bridging the gap continues to be a critical problem for new prac tition ers. Specific problem areas identified include those relating to purely practical questions concerning lawyer to lawyer and lawyer-client relation s, law office procedures, row offi ce procedures and variou s other matters that are learned by experience.

The committee initially considered whether these issues had been previou sly addressed by the preceptor system. However, the committee unaminously determined that a return to the preceptor system could not and would not adequately fulfill the needs

of the new lawyer . Accordingly, the committee has been working to develop an alternat ive mean s of delivering practical orientation to newly admitted lawyers .

As reported recently at the Young Lawyers Section summer meeting at Toftrees, the proposal that is now being considered by the committee calls for additional of a mandatory "practicum" requirement for admission to the bar. The addition of thi s requirement is to be accompli shed by amend ment or other appropriate changes to the Pennsylvania Bar Admi ss ion Rules. Under the current proposal, the practicum requirement would be admini stered at the state level by the Board of La w Examiners and would be admini stered at the local level by a five-attorney "Practicum Panel."

The latter would be appointed by the Supreme Court upon recommendation of the senior president judge of a "Practicum District." The proposal suggests that the state should be divided into Practi cum Distri cts, each con sisting of a judicia l di strict or di stri cts, hen ce the local "Pract icum Panels . " The proposal envisions that in each of the various Prac ticum Districts, a practicum course would be locally developed. The proposed amendments to the Bar Admi ss ion Rules provide that th e practicum course of each practicum di stri ct must be a pproved by the Board of Law Examiners and shall include a minimum of thirty-si x (36) hours of practical orientation, instruction, observation, study and courtroom activities con ducted by such persons as the' local Practicum Panel deem s a ppropriate.

The proposed Rules call for orient ation in the following areas: (1) Row Office Procedures and Pra ctice (Including, but not limited to: filing a nd recording procedures; location of docum ents a nd indexing system s; method of operation of Recorder of Deeds, Regi ster of Will s, Prothonot a ry and Sheriff' s Office) .

(2) Court of Common Pleas Filing Procedures, Motion Practice, Court room Practice and Customs and

Local Rules of Court (Including, but not limited to: Juvenile Court, Orphan's Court, Family Court , Criminal Court and other court divisions) .

(3) Justice of the Peace and Magistrate's Courts Filing Procedures and Practice.

(4) Practice and Procedure of Local Agencies (Including, but not limited to : Municipal and Count y Board and Commission s).

(5) Real Estate Settlement-Forms and Procedures.

(6) Lawyer-Lawyer Relation s and Law Office Practice and Procedures (Including, but not limited to: Professional courtesy; agreement s of counsel; telephone; correspondence; extensions of time; dealing with client who was previousl y represented by another lawyer ; ex-parte practi ce; connict s).

(7) Lawyer-Client Relations (Including, but not limited to: Interviewing, fee arrangements and filin g; inform a tion [keeping client s informed]; communicating offers; connicts of interest; avoiding malpractice) .

(8) Courtroom Activities Observation - At leas t six (6) hours of such observ a tion of trial s, hea rings, argument or other courtroom activities as the Panel deems appropriate are required as p'art or the content of the Prac ti cum Course under the proposed rules.

The committee' s proposal IlOW provides that if the prac ti cum course is completed prior to a nnoun ce ment of the bar result s, a plenary ce rtifi ca le of admi ssion will be issued to th e successful ca ndidate. If the pr ac tic um course ha s not been compl eted a t the tim e of a nnouncement o f th e ba r C.\ amin a tion result s, a limit ed C~' rliri ~'3 t c of admi ss ion will be iss ued 10 I he appli ca nt for admi ss ion 10 th e har .

Under the proposed rul c~. :.l p;:or\L) 1l who is iss ued a limited eer t i ficatl \I ill obt ain a plenary certificatc \\'lll' Il th e prac ti cum requirem ent i~ ~ o Jl1p k tl'J .

Th e limited certifi ca te will be \ ~ tlld for a period of 180 days a rt er iss uan ce unless extend ed by th e court 011 g.ood ca use shown. Under the propo cd rules, there will be no restr iction on rJractice by a person holding a lim ited ce rtificate, other than the fact th at it will expire a fter 180 da ys.

The proposed rules provide that the only requirement for compl etion of (caminl/I'd Oil hil I" )

Comments on Practicum Concept Professor Carol Los Mansmann Responds aul L. Stevens' article, describing the establishment of the committee to Study Problems Related to the Practice of Law, certainly comes as ' no surprise in the wake of rumors in recent years of the interest of the Pennsylvania Supreme Court. Indeed, "rumor has it" that, before his retirement, Chief Justice Michael J. Eagen actually recommended to the PBA that it commit its energies to this area. The PBA Committee, chaired

by Pittsburgh attorney Alexander Unkovic, has now filed its final report which will be presented to the PBA membership at the mid-year meeting which will be held in Bermuda from November 19th to the 23rd and will be voted upon at the May 1981 meeting to be held in Pittsburgh. If adopted, the proposal will be sent to the Supreme Court as a recommendation for implementation by the Court.

It is felt that strong support exists on the Supreme Court for a practicum program of this nature, the only question being whether participation should be voluntary or mandatory. In the Committee's final draft, it should be noted that there is a mandatory provision for attendance at practicum sessions and a recommendation for the establishment of a voluntary "advisorship" system, by which experienced lawyers would be available to answer questions posed by the newly admitted lawyers. Certainly the necessity for both facets of the program cannot be debated. It is, however, the mandatory nature of the practicum requirement for admission to the Bar which should be debated in depth.

As the faculty member with responsibility for the clinical programs for the 1980-1981 year and as the chairperson of the Programs Committee for the 1979-1980 and 1980-1981 Yfars at Duquesne Law School, my interest in this area is obvious. In discussions with students, I find that almost on a par with the fear of flunking the bar exam, there is the fear that once legal employment has

P

to

been obtained, the new lawyer will not know what to do or where to go in the court system. While these matters are quickly learned once in practice, the anticipated fear of "being lost" often magnifies the problem.

In order to allay these fears, the law school, in conjunction with the Duquesne Law Alumni Association, began a "Senior Forum" last year.

The Forum addressed topics of law office practice, trial practice and specialized areas of law for the young lawyer, accentuating the Allegheny County and Pennsylvania practice.

(The first Senior Forum presentation will be held this year on Saturday, December 6, 1980.) Programs of this nature are needed not only as a confidence or morale builder, but because there has been a trend in recent years by our law graduates to engage in the solo practice of law immediately upon passage of the bar exam. These young lawyers would not necessarily have experienced practitioners nearby with whom to discuss a problem relating to practice.

While I believe that we certainly need a program of this sort, I am not convinced that the program should serve as a mandatory requirement for admission to practice in Pennsylvania. U ndou btedly, the greater percentage of law graduates are not involved in trial work. As previously mentioned, the information which the panel would be imparting is of a changing nature and frankly, easily learned.

It is my feeling that the mandatory requirement is an over-reaction to the problem. If the program were voluntary, I suspect that lawyers already admitted to practice (notably admittees from recent years) would have the opportunity to avail themselves of both facets of the program. If the program were mandatory, the number would be so large that previously admitted lawyers would not have the opportunity afforded to them.

An additional question which might be raised concerns who should have the opportunity for conducting

the program: the bar or law schools?

The previous preceptor system was discontinued because it became unworkable with the large numbers of lawyers needed to perform the work and because of the potential for abuse by both the law student (who did not wish to or who was unable for financial reasons to work at a law office for free) and by lawyers (who utilized these students as researchers rather than serving as teachers for them.) In addition, there was a tremendous burden on lawyers in the smaller counties to service a large number of students. On the other hand, the advantage to having members of the bar run the program is that they are familiar with the intricacies of everyday practice, whereas law professors are unable to practice because of ABA/ AALS prohibitions against affiliation with a law firm. The law school curriculum is often challenged by students as being overburdensome upon the students; to add an additional thirty-six plus hours seems difficult.

It is my feeling that legal education, in general, must be a joint effort by both the bar and by law faculties, sharing overlapping roles in both substantive and procedural areas. If the need is recognized by both the bar and law faculties, then attendance at a practicum program should be voluntary in order to provide a service for those who feel they have need of it. If, however, the Committee's draft is adopted in its final form requiring mandatory attendance for admission to the bar, then it is my suggestion that attendance at law school programs should serve as part or all of the requirement. In this manner, the fundamentals of practice can be adequately handled and absorbed into the law curriculum and the peculiarities of a particular county can be handled in a shorter period of time with less burden upon the proposed practicum panel.

In large measure, the success of the program will depend upon the commitment and abilities of the practicum panels. If the members of Pennsylvania law faculties can aid by offering their expertise in sharing what can in a sense be viewed as a burden upon the entire profession, then we should be willing to make this contribution.

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The Practicum Concept Professor Alfred S. Pelaez Gives A Qualified Endorsement

oe unto thee, lawyers. Chief

W Justice Burger started it when he commented on the incompetence

of the trtal lawyer, and asked that the federal courts compel minimum proficiency testing as a pre-requisite for admittance to those hallowed chambers. Others, quick to spot a popular theme, have noted that the incompetence so visible at trial is but the "tip of the iceberg" of lawyer incompetence sealed in the filing cabinets of our law offices under such titles as wills, real estate, contracts and miscellaneous. The client, it would seem, has better odds at Reno or Atlantic City than he has when seeking the assistance of a lawyer.

In such a climate, espousing the Practicum Concept cannot but strike a populist chord. Moreover, every lawyer knows full well that much of the criticism of the profession is indeed warranted, and that there are lawyers who not only mess up court cases, but whose files consist largely of malpractice cases waiting to be discovered. Thus, who in good conscience can oppose a systematized methodology which will guarantee that even the dullest and least curious of the genre will know where the prothonotary's office is, and who, once he gets to trial, will know on which side of the counsel table to place his expensive graduation-gift attache case. I'm not convinced, however, that this "band-aid" approach will make a dent in the very real problem of lawyer incompetence.

No lawyer, young or old, who is sincerely dedicated to giving his clients the best he is capable of delivering has ever been prevented from accomplishing that end because he did not know local filing procedures. The dedicated, conscientious lawyer will make it a point to ascertain local practice by referring to local rules, by asking clerks in the appropriate office and, if all else fails, by asking a fellow member of the bar for advice. Thus, while it is well and

good to formally expose the young lawyer to the subtleties of local practice and thus spare him a bit of effort, I am not sure that it will result in the better delivery of legal services. Will, for instance, the incautious lawyer who formerly would have filed a defective pleading because he lacked su fficient interest to ascertain the proper form, now more effectively represent that client as a result of knowing how to prepare the title page that must accompany the pleading?

Will he, in short, bother to thoroughly research both the facts and the law before he files his "proper" pleading to make sure that he has pleaded his strongest cause of action and has selected that forum which is most likely to maximize his client's chance of succeeding? Or will he simply delay the inevitable by masking his incompetence so that it is not discovered until some later stage of the proceeding?

The Practicum Concept, becuase it can do no harm and may even provide some benefit, cannot be faulted.

It is, however, symptomatic of the "quick fix" approach prevalent in all other aspects of society. Lawyers foul up not because they lack thirty six hours of practical exposure, but because they too frequently seek the easy way out. If they are ineffective in courtrooms it is not because they did not know where the complaint should be filed, or the information that must be contained on the cover sheet defects that, if made, will be quickly pointed out to the neophyte lawyer by clerks, who can and frequently do complete the lawyer's education by directing him to a file where all the pleadings are in proper form .

Lawyers are ineffective in courtrooms because they have not done the hard basic work of thoroughly preparing a case, researching the law, and presenting to the court a theory based on facts and law that will enable a decision in favor of their client to be rendered. And, for the same reason,

they are often ineffective in all other facets of the practice.

It is significant that the problem of lawyer incompetence has become a "hot issue" at a time when the quality and native intelligence of those entering the profession is at its zenith.

I suspect that the average LSAT scores of the graduating classes of 1981 will be at least 100 points higher than the scores of their colleagues who graduated a generation ago. The problem, then, is not one of native ability or lack of a road map of the courthouse and row offices. The problem - and, make no mistake about it,there is a problem - is that too many lawyers are content to do less than their best; to get through real cases the way they got through much of law school - with a maximum amount of cleverness and a minimum amount of drudgery. It is a problem that is not unique to the law profession, and one which is vividly illustrated by a fall off in productivity levels in virtually all industries.

As long as there are lawyers who treat their profession as a business and seek only to maximize profits and minimize labor, there will be clients who are poorly and ineffectively represented. For those lucky clients, however, who happen upon a true professional who understands that taking a client's case means performing the best job he is physically and mentally capable of accomplishing, lawyer competence will continue to be someone else's problem.

If the organized Bar could do anything to improve the delivery of legal services, it would be to impress upon all its members the awesome responsibility attached to the right to call oneself a member of a learned profession. Lawyers must be impressed with, and willingly accept, the fact that their primary duty is to fully and competently represent the client's interests and to uphold the dignity, respect and honor of the profession, and not simply to maximize profits. I see little in Mr. Stevens' proposals that will assure that goal is more widely reached.

The Practicum Concept canot hurt, and might indeed help the delivery of legal services in a few instances. 1 would hope, however, that the Bar does not rest on that rather shallow plateau but continues to assault a growing, and troubling, problem.

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Juvenile Justice and Status Offenders

by John Braszo & We should first inquire why the majority of people submit without question to the demands of society before we can hope to understand what puts the delinquent outside social boundaries.

-August Alchorn, Wayward Youth,

1925,p.213

It seems like only yesterday that Huck Finn, Tom Sawyer, Spanky, Buckwheat, Alfalfa, and Dennis the Menace characterized an adult America's version of and feelings toward its youth - rambunctious, impulsive, adventurous, curious, and naive. All of these traits exempli fied the inevitable rite of passage from childhood through adolescence to adulthood. Often overcome with a regressive sense of deja vu, we amusingly tolerated the antics and behavior we knew and accepted as part of "growing up." But this was before anatomically correct dolls, zero population growth, hyperkineticism, and the universally accepted notion of "generation gap."

Today we look upon children with an eye toward the law. We are so ready to find fault in them that we forget the innocence and innateness of that period of time when we refused to clean our rooms. Petitions are filed daily in Juvenile Court charging children and adolescents with "offenses." Teaching morals and social behavior to youngsters as well as disciplining them is becoming more and more a task of our Juvenile Court judges and judicial processes rather than the more traditional function of .parents, teachers, and the local community.

BACKGROUND TO THE SYSTEM The establiShment of the Juvenile Court System in Illinois at the turn of the century was widely applauded.

Primarily, it was a movement to separate youthful offenders from

12

Christine Fuhrman adults in jails and institutions .

Secondly, it sought to establish a different type of legal structure for youths. Under the juvenile system, a youth who broke the law was to be treated as a person needing care, education, and protection rather than punishment. The Illinois Act of 1899 was the first comprehensive juvenile legislation to be passed. The Act in its original form covered neglected, dependent, and delinquent children.

By 1905, the Act was amended to include these children who we now refer to as status offenders. I Within six years, the jurisdiction of the Illinois Juvenile Code had been ex tended to include practically every child.' Many other states have followed the Illinois legislat ure in passing similar Juvenile Acts, corresponding not only to the rehabilitative objectives and in formal structure of the Juvenile System, but also to its broad extension of jurisdiction. J

JUDICIAL TREATMENT OF STATUS OFFENDERS The Juvenile Court System was first initiated to separate youths from adults and to remove the stigma of the "criminal" label from a child.

Further developments sought to remove the "status offender" from the "delinquent" category and to begin to remove status offenders from correctional institutions populated by delinquents.

In Pennsylvania, a delinquent child is defined as a youth between the ages of eight and eighteen who the court finds to have committed a delinquent act and is in need of treatment, supervision, or rehabilitation. A delinquent act is an act designated a crime under the law of the state, federal, or local government.路 By contrast, status offenders are children who have committed acts which, although indicative of their age groups (i.e., truancy, ungovernability, running away, deporting themselves in such a manner as to endanger their morals), may bring them

within the jurisdiction of the Juvenile Court System. These acts are termed "status offenses" because it is the status of the child - his or her age which permits and justifies such intervention by the court. her age - which permits and justifies such intervention by the court.

In the early 1960's, the New York Juvenile Code was revised to remove status offenders from the delinquent category. Since that time, there has been widespread controversy as to the best method of handling minors who commit no crimes, but act as a menace to society's values and morals. The findings of a Michigan study of Juvenile Corrections in 1976 indicate : 1. 40070 of the cases processed by the Juvenile Courts were those of status offenders.

2. More juveniles adjudicated as status offenders are sent to juvenile institutions as compared to youths who were convicted of other offenses.

3. Once incarcerated, status offenders tend to spend more time in institutions than their j uvcnile counterparts who have been institutionalized for other offenses. J Cognizant of the trends shown by the above findings, the United States Congress passed the Juvenile Justice and Delinquency Prevention Act. The main thrust of the Act was to provide for the separation of those juveniles who have committed criminal offenses from those who have committed only status offenses. Although the states are not bound to commit their Juvenile Justice and Child Welfare Systems to meeting the mandates of the Act, continued federal funding requires compliance. Many states have endeavored to commit their Juvenile Justice Systems to goals analogous to those of the Federal Juvenile Justice and Delinquency Prevention Act of 1974. Pennsylvania, for example, amended its Act to provide for "the care, guidance, control, trial, placement, and commitment of delinquent and dependent children. "6 Critics of the states' efforts to develop a different modality for pro-

viding services to status offenders and detained juveniles charge that although status offenders are labeled differently frDm delinquents and deprived.children, dispositionally they are treated in much the same manner.

However, several national groups ' have taken the opposite position. In fact, these groups have gone so far in their position as to recommend the elimination of court jurisdiction over status offenders. The rationale for this recommendation: status offense cases divert court resources from delinquency cases; lack of proof that court intervention helps status offenders; incarceration or any contact with the juvenile system is counter productive for status offenders; status offender laws are discriminatorily harsher for girls than boys; voluntary community resources are inhibited from taking initiative as long as the court retains jurisdiction; and the court has insufficient dispositional alternatives.

The Institute of Judicial Administration/ American Bar Association JuveniJe Justice Standards Project has taken the same position by recommending in its tentative draft that jurisdiction over unruly children be eliminated with limited intervention only in particular circumstances. 8 On the other hand, the National Council of Juvenile Court Judges recommends retention of court jurisdiction over status offenders because such offender conduct may violate the rights of the community and such children have responsibilities and rights which must be enforced by law. 9

CHALLENGES TO THE PROCESS Numerous constitutional challenges have been raised over the power of the state to assert jurisdiction over juvenile status offenders.

Specifically, litigants have argued such constitutional issues as due process, right to treatment, equal protection, and cruel and unusual punish ment.

An argument is raised against court jurisdiction on the grounds of Constitutional vagueness. The substance of this argument focuses on the serious consequences that may result from a court adjudication. The contention is that juveniles should be afforded the same due process protections as adults, regarding specific statutory language. Typically, many state statutes employ such terms as

l

"reasonable," "incorrigible," "habitual," "immoral," and "beyond the control of" to allow the juvenile court broad discretion in determining when a child comes within its purview. 'o The courts, however, have been most hesitant to declare these statutes invalid on vagueness grounds. The United States Supreme Court in Mattiello v. Connecticut, 395 U.S. 209 (1969) allowed a Connecticut statute to stand that gave the court jurisdiction over an unmarried girl of seventeen who was charged with being "in manifest danger of falling into habits of vice." In E. S. G. v. State of Texas, 447 S.W.2d 225 (Tex. Civ. App. 1969) the Texas Appellate Court declared that their state's statute defining a delinquent child as one "who habitually so deports himself as to injure or endanger the morals or health of himself or others" was not unconstitutionally vague. The Massachusetts Supreme Judicial Court in Common-

wealth of Massachusetts v. Brasher, 270 N.E.2d 389, 359 Mass. 550 (1971) held that the statute providing for the punishment of "stubborn children" was considered not so vague and indefinite as to violate the due process clause of the Fourteenth Amendment.

The most common argument made in defense of the juvenile status offense statutes is that their existence serves as a. legitimate social function; whereas, an application of vagueness standard similar to that used in adult cases would undercut the parens patriae function of the juvenile court.

Challenges to this argument contend that more precise language is needed to eliminate the courts' discretion and effectuate more uniform standards of adj udication.

Similar challenges have been raised with regard to equal protection.

These arguments have been likewise ineffective as the courts have consistently opted to apply the "reasona b leness" test over the "strict scrutiny" standard. Under the reasonableness test, the presumption of Constitutionality permits the existence of any classification for which any rational justification can be shown. The prevalent view is that if the Juvenile Court does not furnish the full gamut of due process protections afforded to an adult when his liberty is to be restricted, then the Court must provide an individualized order with specific and adqequate guidelines for treatment of the juvenile . Janet v. Carras, 362 A. 2d 1060 (1976); Morales v. Turman, 383 F. Supp. 53 (E.D . Tex. 1974).

It appears throughout this discussion that the increase of state intervention in the juvenile area has been met with both approval and criticism. The rights of juveniles as well as the treatment programs provided for them have become controversial matters due to the conflicts bet ween legislation and Con stitutional provisions. Juveniles have been afforded less procedural due process protection than adults because of the Juvenile Court philosophy to care for, treat, and rehabilitate juvenile offenders. Their substantive rights also have been violated as a result of this philosophy.

Our attempts to help should not he undertaken without notice of the dangers involved. In our enthusiasm, the juvenile's individual right s are many times foresaken or overlooked.

This is particularly true with respect to status offenders. Many times the juvenile process places a juvenile who goes outside socialty mandated boundaries (for children) in the same facility as a juvenile who breaks the (continued on page 14)

13

Estate Planning

S~mposium

SBA and MAPS Present Expert Max Lewis r. Max Lewis, a nationally rec-

M ognized legal expert in the field, and lecturer on the subject of estate planning, spoke before a group of law students and faculty in the Duquesne Law School Moot Court Room on October 30, 1980. The lecture was presented under the sponsorship of the Student Bar Association and the Mutual Association of Professional Services (MAPS). In his lecture, which included a slide presentation, Mr. Lewis strongly emphasized the need for a careful, comprehensive and up-to-date estate plan for all individuals . According to Lewis, "People do not have adequate estate planning today because little time is spent by people establishing, preserving or protecting their estate plan; and bar associations and lawyers have done little, if anything to improve this situation. Our nation depends upon the protection and preservation of personal property." Mr. Lewis stated that there are six steps to a good estate plan: (1) A mental commitment by an individual to establishing a quality plan; (2) a careful selection of advisors which should include the attorney, an accountant , the life insurance agent, a trust advisor and an

JUVENILE JUSTICE

financial picture and the manner in which the testator wishes to distribute his estate, keeping in mind the tax consequences of such transactions; (4) precise identification of problems likely to arise based on the particular facts and circumstances of the individual's family and financial situation; (5) solutions and strategies for resolution of such problems including a comprehensive checklist to be used by the attorney to insure that the estate plan is complete; (6) an annual update and review of the estate plan.

Lewis pointed out that the benefits of a quality estate plan include: the preservation of the family home by eliminating the burden of a mortgage and estate taxes; the transfer of assets to those whom the testator chooses; providing adequate fund s to meet known needs including income and taxes; protecting and preserving the security that the testator has established for the family; avoiding family disputes over the estate; avoiding the destructive effects of taxes, unnecessary expenses and death costs; and providing educational opportunities for the testator's children. He

urged his audience to give careful consideration to the area of estate planning in preparing for a legal career. "Estate planning is the ultimate general practice of law. It cuts across every concept and area of the law , " Lewis said.

In emphasizing the human aspect of estate planning, Mr. Lewis stressed the importance of involving and training wives, husbands and other family members in estate planning and helping to solve the family security shocks for the surviving members.

As Lewis said, "Estate Planning is the art of caring for the people you love . . . and caring enough to act."

continued

criminal code. Several national groups have argued against this procedure as well as taken issue with the Juvenile Court having jurisdiction over these status offenders at all.

Possibly a closer look should be taken of the legislative objectives in the juvenile area. Our philosophy must consider the rights of these juveniles as persons and citizens . under our Constitution; not merely objects of our benevolence.

The following illustrates a section of the 1905 Amended Act: The court will have jurisdiction over the child who is incorrig!ble; or who knowingly associates with thieves, vicious or immoral persons; or who without cause and without consent of its parents or custodian, absents 14

investment advisor; (3) a thorough

factual analysis of the individual's

itself from its home or place or abode . .. or who is guilty of immoral conduct in any public place or school house.

Controversy continues today over whether this all encompassing extention of jurisdiction created an undesirable precedent. The Juvenile Status Offender and the Law, Pa. Joint Council on Criminal Justice System (1977). including Pennslvania act II P.S. 21-2424.

JJ P.S. 50-102 Rosemary Sarri and Yekeskel Hasenfield, eds., Brought to Justice ?, Juveniles, the Courts and the Law, (Mich. National Assessment of Juvenile Corrections, August 1976) Act No. 1971-41 (S.B. 757) and Act No. 148 (S.B. 852); both

10

amended Act No. 333 including: The National Advisory Commission on Criminal Justice Standards and Government, the American Civil Liberties Union, the 1967 Presidential Task Force on Juvenile Delinquency and Youth Crime, the HEW Model Act, the National Council on Crime and Delinquency.

IJAI ABA, Juvenile Justice Standards Project, "Information Packet on Juvenile Justice Standards Project" (Mimeographed, N. Y., Dec. 22, 1975) NCJCJ; "1976 Resolution" Juvenile Court Newsletter 6 (August 1976): 10) "Parens Patriae and Statutory Vagueness in Juvenile Court" 82 Yale Law Review 2 (1973).

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Nesti people to whom we go in order to solicit these funds for our needs. And the Law School is in that context, you know . I think that in the context of the over-all drive, I think the Law School's needs are very well and clearly defined.

The funds are already determined in the Unified Fund, in the drive, in the plan itself. So much will go to this, so much will go to that. You know, I think the donors - when you have any kind of a fund drive, you will have those who can give to the drive with no specific intention. If others feel that they want to give to specific academic programs, they can ~ive it earmarked to those . If others want to give to faculty development, they can give under that particular title . If others want to give for the building of the Law School, they can give under that particular title. But what the U niversity has to manifest is the needs that it is trying to satisfy its needs and what it is trying to satisfy in the context of the fund drive itself. Now we aren ' t prepared to announce what that all is at present, but it has been developed and we're getting very excited. It's going to be a good fund drive.

You realize that what is being done down in Rockwell Hall is an interim project. That is an interim project. That ha s always been understood to be a n interim project in view of a law facility for the Law Sc hool. And there will be a la w facility for the Law School. The date for the Law School to be in the new facility is the Fall of 1982. I can tell you that.

It has been suggested to put "Future Home of the Duquesne Law School" on the old Library. I certainly will suggest it to Father Duchene, the Treasurer. It might stand a s a sign of hope ... in hope of waiting for the new facility . The projected date for your moving into the new facility would be the Fall of 1982.

I tried to outline my philosophical approach in my inaugural speech. By the way , that's going to be printed . It will be printed and sent out to all the Alumni . I tried to make it as clear as possible - the philosophical and theological basis upon which I would base my administration at the University. We are a University and because of that fact, we will strive for academic excellence, and my emphasis will be on academics and the academic quality of the University. We are not only a University. We are also a Catholic University.

And I think I've outlined that very well in my talk - what that means. It doesn't mean something which is provincial, it doesn't mean something which is isolated, it doesn't mean something which is reactionary . It means that in this context, in this University, the great lines of Catholic tradition and Catholic thought and Christian thought - I might add Christian thought, will have a forum in which to dialogue with all kinds of areas of knowledge and that there should be

l

responses. This implies that we also hold certain values to be sacred . Persons are sacred, and life is important to us.

Responsible freedom that should not only be developed but cherished and fostered; that in this context we are at once concerned, not only by achieving things monetarily or materialIy, but that we are also concerned about the values of truth and honesty and relationships. So that if in the context of this University, our education is not person-oriented and community-centered and we don't value relation ships and everything that relationship involves, then we've missed the mark . And finally, that in this University, it is a Universityfounded and staffed by the Holy Ghost Fathers . It 's expanded over the years and many, many more people have been invited in, and particiate in this large community which we call Duquesne University. But nonetheless, as a congregation, we bring something specific - which is a world-wide vision. We are moving into a new world order and whether we contribute to that or whether we try to stop it, no matter what kind of attitude we take, the new world order's going to come about. Now we can ta ke a very positivc stance and say that we want to be in the middle of forming that, dcveloping and shaping that new world order, or we can sit back pass iveIy , or we can sa y that we want to obstruct. You know , we have those kinds of choices . I hope that at Duquesne University, this University is going to make every effort to contribute to the shaping of the new world order and taking the concerns of humanity into consideration; that we would be concerned about the international ramifications of law; various legal systems. You know, I think there' s as mu ch coming on the scene and perhaps as great a differenti a tion about what we're going to see in the future in the lega l area s of our existence as we would see between a Roman approac h to law and an Anglo-Saxon approach to law. What do we do with that? How do we move and how do we change with it?

What kind of an impact can we have on bringing values to the kind of legal system that should be forming for world concerns? Every time we turn around, we're bumping into that kind of a situation, whether it's the oil situation in the Mid-East, or whether it's a Khomeini, or whether it's the African Socialism that's on the scene in Africa, whether we have some of the regimes in South America that we're familiar with and so forth . How do you reconcile all thi s?

Because law is meant to protect and it's meant to improve relationships - relationships which are based on rights and obligations. But ultimately, which I will hope would go deeper, and call us to something more in the sen se that beyond the rights a nd obligations, if we aim at serving people, we will come to a better understanding of what the la w is all about.

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15

PRACTICUM

continued the practicum course requirement is attendance during the minimum number of hours. Thus, no Practicum Panel will be allowed to require an examination as evidence of completion. Additionally, the practicum requirement may be fulfilled at any time after taking the bar examination. Therefore, a person who takes the bar examination in July can conceivably complete a local practicum course during July, August or September, prior to announcement of the bar examination results. Further, the proposed committee report provides that the practicum requirement may be fulfilled in any Practicum District.

The practicum course is to be a practical, hands-on series of tours, orientations and observation. It is not intended that substantive law will be covered. Rather, the course will concentrate On the " how-to" and "where" and "what" of practice.

In addition to proposing the creation of a mandatory practicum course requirement, the present form of the committee's report suggests that each Practicum Panel shall have the duty to form an Advisory Committee consisting of members of the bar who practice within the Practicum District. The purpose of the advisory committee will be to make available, on a voluntary basis, experienced practitioners for consultation and assistance to newly admitted attorneys.

The report of the Committee to Study the Problems Related to Entry Into the Practice of Law is currently in draft form and is being circulated among the members of the committee. The concepts embodied in the current version of the committee's report were unanimously endorsed by the Young Lawyers Section at the annual summer meeting at Toftrees.

Additionally, section Chairman Tim Carson has appointed a "Practicum Committee" of the Young Lawyers Section for the purpose of monitoring and providing input into the work of this senior bar committee.

(Reprinted with permission)

Callfor Independent Validation oj Bar Statistics In ads a nd posler!O publi shed all ove r the co unlr Y t he J os ephson Bar Review C Cnl e r (SH e ) ha s loudl y ('hull~nged il s ,'o mpclilors in the bar fcoview field (0 agn:c 10 a sysl em of inde pende nt compul a lion a nd public3 1io n o f compCj rali ve ba r p ass age ra les .

pagt.:' ads asserting Ihat il was Ih e " Iarge"i ( co ur se in Ih e 5131e, " when in fae l il had IOlNer enro llm e nt s Ih a n eilh er BRC o r th e

Th\.' BRC challenxe , a.1I they p ut iI, is th a t (,'-I ,h b.tr rev iew co ur se would ag ree t o ~ ub ­ mil the na mes of il " ('nr o llees to the law "hool s o r indcpt'ndenl p rofess ional a udito rs be/ure' the bar exam s arc grad ed and th t" resull s a rc p ubli shed . Tbc law sc hool o r audio lor ... wou ld 1hen verify g radu a l io n a nd d a.l!s 'ta nding a nd pu blbh the reillul ts "'0 th ai t he pe rforll1(IIKl' o f cClc h ,ou rsc is rnea led ill lerm , o f 4uarti le! (lhe sa me way the law sl·h ool-. l'o rn pu lc pcrccmage, fo r the ir OW I1

pub l i ~ hcd and offered to veri f y st a tistics '1 ho win g th a t BR C ~ tud enl~ ~ ub ) t a nl ia ll y o utperfor med ~ tu dcnt ~ usin g o t her ..:o urscs.

me ).

The n RC pro po., al I'o r indepenuent ...·a li da· lio n of ba r '\ Iali slil.:s is not new . In facl , il ha ~ bee n m ade in w riling b)' URC si nce 1974 but t he HA R/BRI (our .;;e h a~ i1l w3Y'i rc ru , cd 10 pu rt ki pal t . ARC ha s eS..: alalt:d il.\ effort .. 10 publici l.e the i~ ~u e Ihi. . year bcca us.e o f w ha l il t erm ~. " an un prl'l'cdcllI ed numbe r of cl io;;Ion ion.' " in rCl'en l )'(·ar ....

Al'l'o rdin g to Mil·h.u:1 Dev lin , Direc to r o f E.nro llm ent-. f or B KC. "U mk r the pre~(' nl 'y' tcm, ba r rl'v ic:w ('o ur'l'~ p u b li ~ h ~ I a ti , t il'''' o nl y wlH.'n il ,ui t.'i I hem a nd thcTL~ is no Uln,i'lcnl'Y in tht' wa y Ih e pcr( crllagc, a rc.'. com · PlIl l.'d . rh e BA R/ I3RI (o ur st', have , Wl' Ih ink, h('l' n parli ( ularl y adC' pl a1 jugglin g fi ~­ Ure, or avoi ding IhCOl t'lll ird y."

Mr . D t;~ \j lin t' il <.' ~ l'i gurt':-' II sc:d by Ih e BA R/ URI cour,,, in A la ha ma . Ca li forn ia, Fl o rida .

H awaii , Minrl e'iO la, New York , New Ja.;ey, and P ~n n 'y l v ani<l a!i t·xam p l e~. " 1\10.;1 ~)r Ih e ir d aim., a rt' o ra l and Iht'Y CCl ll't be pi nnt' d d ow n, b UI ' OIllc.'li lllC"> Ih <.'y will a bo publis h 1he mas I o ut I ag~o ll '" c la im s."

'W he n i1 sked

fo r Spt'c iFie exam ples. Mr. Dcv lin ~a jd : "The vt'ry be.,' exa m ph:. . I t'an th i nk o f 11 0W , bC'('a u:o.<.' il is ~o easy!O prove. i, wh a t I h t~ y art' say in g in A labam a . BA R/ · UKI h a~ l1 e\'~ r o rfered a n A laba m a ba r rt'vicw ( our'ie thou gh it is pl ann ing to do so for lil(' sum me r 198 1 l'xa m . Nevertheless, Ih e \ sc nl a l<.'lIe r 10 A lu ba ma sen ion c Xl o llin !! lh~~ vin lie " of t he nonex ist enl course an d c la inh.' d a pa:-..,i ng ralt~ o f 95 % o n Ihe A I.abHrna Bar

Exa m." (x.'v lin gave ot he r e.l( arnpk, of' wh a l he la" ~ I<U bo t it'a l m is t'o nd uc..' I." In Ma ssach usC(1 s, D(.'vlin dailJl t·o. BAK / BRI ra n full

SMH

co ur ~ c.

"' heir pass in g

BAR / SRI tried 10 blame (he low passage rau: in rCCCnI yea rs o n BRC ahhough BR C

"Fina ll y, " Dev li n admiw.."'<i , "wha t they arc t ryi ng 10 d o in C aliforn ia n o w is j ust the /3:-.1 , tr aw, " Wh a t BAR / SRI is "doin g in Ca li · fo rni a" is 10 run full pa ge ads a llacki ng a ' 1:lIi :-'l ica l slud Y of ba r passage rate" do m.' by a (h.'an a t a ma jo r C a lifor nia law "chool. Th e , Iu dy l'omp ared Ihe perfo rman,e or siuden is who I OO ~ t he UR C (.:'o ur' l· with Ihm e who look the BAR / lJRI , o ur" (in C ali fo rni a o vcr 95010 l a ke OI1C co ur sC' o r Ihe o lher). II , howed thallJR C'i ludell l ... had a hi gher pas o;; · ing rale al ca(:h leVt.'1 of cla,,:) ~ t a n d ing . Th e a dva nt age of li RC " udelll' ra nged from 6% ('o r ,Iud enl) g rati umi ng in I hl' lOP hoM of Ihl'ir cia" to a lm o~1 20% for Ih me ~ 1';:l d ll ~H i n g in Ih e bOllo m 4u <l n er.

Hll' HA R/ BRI ad ... Wggt''i lt'o it \\as "unpro fC'"io ll a l" ror AR C 10 rt'vc;tl t he ' lUdy alld thai I Ill' fig u re.; u~c d b y the dea11 were ina . . cu r;:u c.

I)t· ... lll1 rl"J1OnJ , Ihal "The who lc a ll ad 0 11 t ht' J t'<lIl" 'ilid y io;; ridi ( ul oll!'.. BAR / lJ RI n ro mi ~ed to pro\:id e him with ad d it iona l fig· un.'\ bUI Ih t'y l)(.'\·e r did. Fin a ll y, ni ne m on lh.., a ft t'r th e , tud y wa.\ ,e11l 10 u:s . th e dean rt'a fri nnt'd the "t'( UTat)' of Ihe repor l a lld hi !. pC'r,o nill r ("po n ~i b i liI Y fo r th e Figu res. " "W e would n ' t b(' 4uih bling abo ut Ih (" :-.Ia ti , · i it'~ al Olle ~ ch oo l if BAR / 13 RI wou ld l·ha n p<.' ii ' pol icy o f l'onc("a lm e lll a nd ag ree to :ttTo." -lh<."-boa rd '1 3Ii '\I it'a l va lidat io n. Th e fal'! i, Ih al \'-'1..' ar t' wil li ng 10 'put lip or ~ hu t liP' bel·au ., e \\'t' arc 10 lall y t'on fidenl in o ur "\'SI('111 and we k no\\' il prou uces be lle r rc,~lIt ~. If AA R/B RI Ih o ug.hl we were wro ng. dO l1 ' t YOll th ink they would ClCl'('PI Ih<.' l.: h:tllt·Jlgt· and provc il? Onl y th ey kn o w wha l I lll' ir fi g ur C'~ arc a nd Ihey don' l \\a nl a n yo ne ('1"l'l o k now. "

To eflco ur a ge a ll c o ur ,e ~ 10 ag rCt' 10 im.k'!'X' lldt~ 1l1 'Iati" li l' a l \'~l lida lio ll, Ihe BR C propos al ur ge" law ,t'h ooh 10 requ ire participa ti on ill :':o uch a prog ram ,h a cond it io n to allowi ng t he (ou r"l" t o -.o li l'it Sl uli elll' o n ca mpti '.

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[Wt' have ask,('d rhat /lu sorlld e be TlIII in rhi.~ wt' hflve paid lor if CIS 1m (1£1 IlIK ·1

paper ufld

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