Teaching Transactional Skills and Lawyering Values to First-Year Students Through an Affordable-Housing Deal DOWNLOAD PDF

With the anticipated launch of the NextGen bar exam next year, transactional lawyering skills are enjoying increased attention in first-year law school curricular development. At the same time, recent amendments to ABA Rule 303 have made it essential for new law students to learn about the profession’s core values and responsibilities. While these evolving priorities open the door to pedagogical innovation, incorporating two distinct topics into an already packed curriculum can be challenging. This article explores how a simulated affordable-housing financing deal has served as a cohesive foundation for introducing first-year students to transactional skills and core professional values.^[1]

1. Reimagining the Transactional Simulation Paradigm 

For faculty looking to incorporate transactional skills into the first-year curriculum, upper-level transactional law clinics can serve as excellent models. For years, transactional clinics have been successfully introducing law students to transactional skills and practice, primarily through business deals involving two for-profit companies.^[2] While this paradigm certainly works well for teaching transactional skills, not all transactional work occurs in a corporate setting. Indeed, transactions can cover a wide range of subjects, including real estate, employment, and estate planning, and can involve all kinds of parties, including government bodies, academic institutions, healthcare providers, and nonprofit organizations pursuing social goals.^[3] In developing a transactional simulation for first-year law students, many of whom are encountering transactional skills for the first time, there are compelling reasons to think outside the corporate box and focus on transactions that serve the public interest. 

One advantage is that a public-interest simulation has the potential to engage a broader range of students, particularly those who might not initially see themselves enjoying transactional work.^[4] Additionally, using a problem that raises broader economic issues provides a well-rounded learning experience and highlights the role transactional lawyers can play in creating social change.^[5] Moreover, as discussed in more detail below, framing a transactional simulation in a public-interest context encourages client-centered, collaborative lawyering. 

2. Designing a Real-World Affordable-Housing Simulation 

In identifying a subject for a public-interest transactional simulation, the affordable-housing crisis quickly stood out as both timely and compelling. As recent media reports have highlighted, the longstanding shortage of affordable housing in the United States has hit critical levels in many cities and towns.^[6] In Massachusetts, the focus has been on the Commonwealth’s unique Right-to-Shelter law, which guarantees shelter to families experiencing homelessness.^[7] The growing number of families seeking shelter in recent years has strained the Commonwealth’s capacity to meet its legal obligations.^[8] In response, the Commonwealth has enacted a series of emergency legislative and budgetary measures to relieve the immediate burden on the shelter system, including imposing limits on the Right-to-Shelter law.^[9] Many longer-term initiatives are also underway in Massachusetts and around the country to address the systemic challenges contributing to the shortage.^[10]

One distinctive approach involves the use of social-innovation financing in the form of pay-for-success contracts. This outcomes-based financing mechanism typically partners government agencies with non-profit organizations and private investors to tackle a pressing social need.^[11] Over the past fifteen years, these public-private partnerships have been used at the national, state, and local levels to address a range of social problems.^[12] They remain in use across the country today, including in response to the housing crisis.^[13]

With a decade of successful projects to draw from, social-innovation financing provides an excellent framework for a public-interest transactional simulation. Our simulation—loosely based on an actual transaction—involves a partnership between a state government and a coalition of non-profit organizations dedicated to expanding affordable housing for families experiencing homelessness. Fundamentally a financing transaction, the simulation includes the essential elements of a successful transactional exercise while providing many opportunities for students to reflect on what it means to be a responsible and ethical lawyer. 

3. Integrating Transactional Skills and Lawyering Values

Through their engagement with the legal and business terms of the deal, students develop core competencies in key NextGen bar exam topics, including client counseling and advising, negotiation, and contract drafting. Additionally, in helping clients tackle the affordable-housing shortage, students are introduced to foundational lawyering values, such as client-centered counseling, collaborative negotiation, and ethically responsible representation. 

3.1 Client-Centered Counseling

The simulation begins with teams of two or three student-attorneys advising their clients—either the government or the affordable-housing non-profits—about the various financing options available to them.^[14] Before the client meeting, students review background information about the client’s goals and priorities in pursuing the financing deal, as well as details about various financing options, including a pay-for-success contract. During the meeting, students explain each option and recommend the one that best aligns with the client’s objectives. Students then summarize their advice and the client’s decision in writing, typically in the form of a client letter, but an email would also work.^[15]

This phase of the transaction corresponds with Topics 13, 14, and 23 of the Next Gen Bar Exam, which collectively require exam takers to determine and explain the best strategy for achieving a client’s goals.^[16] Moreover, the complex fiscal and social issues surrounding the housing crisis facilitate discussions about the importance of cultural competence and the use of respectful language, as required by ABA Rule 303(c).^[17] Students read articles on these topics and discuss key takeaways in class, including how judging people through our own “cultural lens” may lead to errors and assumptions.^[18] Students also learn to take a client-centered approach to counseling, which prioritizes the client’s own goals and interests, rather than what the lawyer believes the client needs.^[19] Thus, as they develop their counseling and advising skills, students learn how to engage with clients in a collaborative, respectful, and culturally aware manner. 

3.2 Collaborative Negotiation and Contract Drafting

After the clients choose the pay-for-success option, students prepare to negotiate the terms of the deal. To ensure the simulation is developmentally appropriate for first-year law students, the negotiation focuses on three straightforward deal terms that only involve the two main parties: funding amount, housing targets, and termination rights.[20] These carefully selected terms, which involve negotiating hard numbers as well as nuanced contract language, allow students to practice the foundational negotiation and contract-drafting skills contemplated by Topics 10, 11, 12, and 26 of the NextGen Bar Exam Content Scope Outlines.^[21] Negotiating these terms in the context of a public-interest transaction has the added benefit of encouraging students to bring a problem-solving rather than adversarial approach to the bargaining table.  

Students begin this phase of the simulation by preparing a negotiation plan. This involves identifying their client’s interests, rights, and powers going into the negotiation, as well as whether they plan to take a problem-solving, adversarial, or hybrid approach to the discussion.^[22] As part of the problem-solving approach, students brainstorm options that address both sides’ interest in expanding access to affordable housing instead of focusing on ways to leverage their own bargaining power.^[23] Students must also identify which “tricks of the trade” they will use during the negotiation, such as asking good questions, bargaining with packages, and finding common ground.^[24] 

During the negotiation itself, students often realize that things do not always go according to plan. Even with the best intentions and humanitarian goals, discussions can become tense, depending on team members’ personalities and communication styles. Students have used creative problem-solving to overcome these challenges. For example, some students have prepared detailed spreadsheets breaking down the per-unit cost of housing to help explain the reasoning behind their financial priorities. Others have “bargained with packages,” tying critical wraparound services for families receiving housing to overall funding commitments. And one group tapped into a member’s prior experience in non-profit procurement to highlight the mutual benefits of maximizing the government’s funding commitment.  

Although students are encouraged to get creative in their discussions, they are instructed to focus their efforts on the three key terms identified in the materials. Having an upper-level Lawyering Fellow act as a negotiation facilitator helps keep students on track and all groups ultimately reach agreement by the end of the three-hour session. After reaching agreement, students finish the simulation by drafting contract language to memorialize the agreed-upon terms. They then present those terms and describe how the negotiation went to the class. These presentations confirm that the experience enhances students’ understanding of transactional practice and fosters a positive view of collaborative lawyering.

3.3 Ethically Responsible Representation

As students build client-focused and collaborative transactional skills, they also learn about the formal ethical rules that govern their work through class discussions and exercises. These include the following ABA Model Rules of Professional Conduct: 

Rule 1.1 – Competence (emphasizing the importance of preparation in providing competent representation); 

Rule 1.2 – Scope of Representation (affirming duty to abide by the client’s decisions); 

Rule 1.4 – Communication (highlighting the duty to communicate clearly and effectively so that clients can make an informed decision); 

Rule 2.1 – Advisor (stressing the importance of offering candid, honest advice based on the lawyer’s professional judgment); and 

Rule 4.1 – Truthfulness in Statements to Others (prohibiting attorneys from making false statements of material fact or law).^[25] 

Given their central role in a lawyer’s ethical responsibilities, it is no surprise that most of these rules are included in the NexGen Content Scope Outlines, including as part of the planned client counseling and negotiation assessments.^[26]

Learning about the Rules of Professional Conduct within the context of a multifaceted housing deal allows students to engage with realistic ethical situations and dilemmas. For example, students must figure out how to explain complex financing models in plain language so the client can make an informed decision. They may also grapple with whether they are ethically required to disclose their client’s bottom-line (for example, the lowest amount the non-profits can accept to make the project work) if asked during negotiations, especially considering the contract’s public-interest focus. These scenarios spark lively simulations and thoughtful debrief discussions afterward, giving students the chance to reflect on their ethical and strategic choices. 

Conclusion

After two years of using an affordable-housing problem in my Lawyering Skills class, I am pleased to report that it has been an effective, engaging, and enriching way to teach both transactional skills and professional values. To put it in transactional terms–using a public-interest transactional problem is a win-win solution for integrating core NextGen Bar transactional skills and ABA Rule 303 lawyering values into the first-year curriculum.[27]