Thursday, October 14, 2010
Withhold any real job security to skills profs and then hammer them when they supervise clinical students who take on unpopular cases and see whether schools graduate the kind of fearless, justice-seeking advocates the public needs. The trouble started with a Tulane clinic that came under fire for seeking more stringent environmental regulation. But that may be only the beginning of a disturbing trend that includes legal clinics at several schools.
As the current issue of the ABA Journal Magazine reports:
The Rutgers case [in which the legal clinic sued a local developer to stop the building of a strip mall but was met with a public records request that sought otherwise attorney-client privileged materials] is one of several recent examples of law school clinics caught in a web of peeved alums, local businesses and angry legislators. The clinics are facing pressure to abandon clients, as well as threats to ban hiring of graduates and attempts to bankrupt their universities.
Maryland legislators, for example, considered a law to slash funds to the University of Maryland if the school’s environmental law clinic didn’t provide detailed information about its expenses and cases. The proposed legislation, later amended to drop the funding conditions, came after the Perdue poultry company was sued by clinic students for environmental violations in the Chesapeake Bay.
Similarly, in Michigan, a Detroit district attorney listed as prosecution witnesses University of Michigan law students representing the defendant through an innocence law clinic. Had the DA not subsequently dropped the case, the witness list would have required students to testify against their own client.
. . . .
Clinical legal education emerged in the 1960s as a way to prepare law students not just for legal analysis but for other aspects of lawyering. Handling their own cases with supervision from professors, students learn pretrial and trial procedures, negotiation, transactions and the nuances of the attorney-client relationship.
Clinics offer “an unmatched method of teaching professional skills and values to the next generation of lawyers,” Kuehn [president of the Clinical Legal Education Association - CLEA] explains. “The consensus is that the best way to learn to practice law is not from a book or lecture but by putting students in the role of lawyer in a controlled situation.”
. . . .
Yet clinical education raises questions about who controls the casework, especially at publicly funded schools. This hands-on teaching affects not just the law students but also clients and opposing parties, triggering debates about professional responsibility and academic freedom.
. . . .
But proponents of lawyering in the academy argue that to be effective, clinics must be treated less as a student program and more as a law office, with the full protections of the attorney-client relationship and the accompanying obligations of ethical rules. For example, model rules of professional responsibility as well as ABA ethics opinions provide that lawyers should accept their fair share of unpopular clients or matters and, at the same time, resist outside pressure or influence on their lawyering.