Monday, November 24, 2014

GUEST BLOG: The End of Cause-Lawyering and Community Education Clinics?

Marcy Karin runs the Work-Life Law and Policy Clinic at ASU’s Sandra Day O’Connor College of Law. The Work-Life Clinic is an integrated law clinic that works on administrative litigation, legislative and regulatory advocacy, and community education efforts on employment law and policy issues for low-income individuals and nonprofit organizations working on their behalf. This work includes cases and projects related to unemployment insurance, reasonable accommodations for people with disabilities, time off, flexible scheduling, unpaid wages, discrimination, reentry, and civil justice for military families.

Over the summer, the ABA changed the definition of what constitutes a clinic when it published Revised Standards for law school accreditation.  Specifically, Standard 304 now reads:

Simulation Courses and Law Clinics

(b) a law clinic provides substantial lawyering experience that (1) involves one or more actual clients, and (2) includes the following:  (i) advising or representing a client; (ii) direct supervision of the student’s performance by a faculty member; (iii) opportunities for performance, feedback from a faculty member, and self-evaluation; and (iv) a classroom instructional component.

This new rule explicitly requires at least one “actual client” for a course to be considered a clinic.  This may have (presumably unintended) consequences for programs that include policy advocacy, community lawyering, or other types of experiential training that may not include client representation, but otherwise meet the ABA’s requirements.

For example, some excellent clinics train students by taking matters and projects on behalf of causes, rather than clients.  Among other things, clinics have testified as experts in front of federal, state, local, and tribal legislatures; submitted comments to rulemaking as part of the regulated community; and worked as part of loose coalitions of people in community negotiations or mobilizations.  As Kevin Barry and I have written about in the past, this type of cause lawyering is a critical component in training students to meet the standards set forth in paragraph 6 of the Preamble to the ABA Model Rules of Professional Conduct, which states that all lawyers “should cultivate knowledge of the law beyond its use for clients [and] employ that knowledge in reform of the law.”

In striving to meet this ethical standard and fulfill a critical need for lawyering services in different communities, a growing number of faculty have incorporated non-client work into clinic dockets.  In addition to law reform, some clinics regularly work in conjunction with partner organizations to offer walk-in legal clinics.  These type of drop-in events are usually undertaken without any expectation of entering into a lawyer-client relationship with event partners or the members of the public that attend these sessions for counseling services.  Other clinics focus on public education either by participating in “know your rights” workshops, by teaching high school students about the law, or by highlighting a problem that had previously remained in the shadows.  Some clinics do this by documenting human rights violations, working on grassroots media campaigns, issuing educational white papers, or volunteering to answer voter questions about how to exercise their rights on election day.

Of course, even litigation-focused clinics may work without clients.  Clinics have been asked to serve as amicus by courts on issues within their substantive areas of expertise, train judicial personnel, advocate for best practices or changes in existing judicial procedures or any number of other litigation orientated, but non-client projects.

Many (but not all) of the clinics that participate in these activities are integrated law clinics, which means they likely also have at least “one client” on a docket at any given time.  Given this, they would still qualify as a clinic.  Nonetheless, the new clinic definition remains problematic:  neither the ABA nor the academy should be sending the message that this type of work is not important in my opinion.  Nor that this work is not as important as lawyering work performed on behalf of a client.  Rather, law schools should have the discretion to offer “clinics” with substantial lawyering opportunities that educate the community about the law, identify problems with it, and/or address how best to reform it.

For the past few months, my colleague Art Hinshaw and I have been having an internal discussion about the potential unintended consequences that this revised standard may have on our clinics.  In this September post on the ADR Prof Blog, Art took our conversation public and asked whether this interpretation would be the death knell for mediation clinics like his, where students do not have clients but rather serve as mediators at the behest of our local courts.

His post spurred the mediation community into action, and he is now the co-chair of an ABA Dispute Resolution Section Task Force created specifically to address this issue.  To start off their conversations, he has suggested the following revised language for 304(b) to the Task Force:

A law clinic provides a substantial lawyering experience that (1) involves acting in a problem solving role, and (2) includes the following:

  • Any of these lawyering activities:
    • Advising or representing a client, OR
    • Acting as a third party neutral in a dispute involving live disputants, OR
    • Others???
  • Direct supervision of the student’s performance by a faculty member
  • Opportunities for performance, feedback from a faculty member, and self-evaluation, and
  • A classroom instructional component

With this post, I hope to galvanize more clinicians to join the conversation.  There is no way that this new definition will be the death of cause lawyering or community education in law school clinics. That said, ABA Standards should reflect the reality that many clinics undertake important non-client based lawyering work and training.  The new standards became operational on August 12, 2014, and Standard 304 must be phased in to apply to students who are 1Ls in Fall 2016.  This gives us a window of opportunity to help our mediation colleagues improve this new standard. 

Given this, what else should be included in the list of proposed lawyering activities?  Educating the community about legal rights or processes?  Responding to requests for technical assistance from the government?  How can we best reflect the diversity in our community with respect to clinic structures and learning opportunities?  Share your ideas in the comments!

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