Joy, P A --- "The Ethics of Law School Clinic Students as Student-lawyers" [2005] LegEdDig 5; (2005) 13(3) Legal Education Digest 8

The Ethics of Law School Clinic Students as Student-Lawyers

P A Joy

[2005] LegEdDig 5; (2005) 13(3) Legal Education Digest 8

45 S Tex L Rev, Fall 2004, pp 815–841

Law school clinics have existed for more than one hundred years in the United States, but commentators have only recently begun to explore in some depth the ethical obligations and ramifications of law school clinic students representing clients under student practice rules. The greatest number of law students representing clients in role as lawyers through student practice rules participate in in-house clinical programs. However, some law students in externship or field placement programs may have primary responsibility for representing clients.

When law schools began to offer students clinical experiences in the late nineteenth and early twentieth centuries, only a handful of law schools had any type of clinical program. These initial clinics, called legal dispensaries or legal aid bureaus, usually involved students working with legal aid offices on a volunteer or low credit basis. As the casebook method of instruction became the dominant teaching methodology in the latter part of the nineteenth and early part of the twentieth century, some were calling for more practical skills training in U.S. law schools. Despite the acknowledged failings of legal education based solely on the casebook method, by the late 1950s only a handful of law schools had in-house clinical programs. The expansion of clinical programs and student practice rules solidified the value of clinical legal education in law schools. As clinical programs expanded, the faculty refined techniques for teaching lawyering skills and developed clinical teaching methodology. The impact of clinical legal education on law students is significant, with over 15,000 law students, or approximately thirty-five percent of law graduates from ABA-approved law schools, currently taking in-house clinical courses each year.

An increasing number of law students have become student-lawyers in law school clinics and most clinical students perform important legal work by providing access to the courts for clients otherwise unable to afford attorneys. Hence the ethical obligations of law school clinic students and the ethical environment of law school clinic practice deserve greater attention. Although most student practice rules include some aspect emphasising the ethical responsibilities of law students, the vast majority of rules do not explicitly require students to face professional discipline if they violate the applicable rules of professional conduct.

While law clinic students violating ethics rules as student-lawyers may face professional discipline in a small number of jurisdictions, the most common possible penalty for unprofessional conduct while practising as a student-lawyer is revocation of the right to practise law under the student practice rule. The clinic student also faces the possibility of professional discipline in the jurisdiction, that is the effect that ethical misconduct as clinic students may have on their application to the bar. Whether or not ethical violations by a clinic student trigger professional discipline or bar admission issues, they may trigger professional liability issues.

The language in most jurisdictions’ student practice rules explicitly or implicitly supports the conclusion that a student-lawyer should be treated as a lawyer for ethics purposes. First, each rule confers on student-lawyers the authority to represent clients directly, something non-lawyers may not do. Second, some rules expressly hold students accountable for ethical breaches, thereby regulating law students as lawyers. Finally, many student practice rules specifically characterise the right of a certified student as the right to the ‘limited practice’ of law or ‘limited license’ to practise law. Similarly, bar ethics committees have considered law students admitted under student practice rules as student-lawyers to be lawyers for ethics purposes.

There are at least three other important reasons for clinical faculty to structure clinic programs to reinforce the ethical obligations of clinic students. First, supervising clinical faculty have an ethical duty to ensure that all clinical students follow the rules of ethics. Second, holding clinic students to the same ethical standards as lawyers instills and reinforces professional values in law students. Third, clinical faculty are important role models and play an important part in teaching professional responsibility or legal ethics to clinic students. In addition to the supervisory obligations imposed under student practice rules, the ethics rules in each jurisdiction require clinical faculty to ensure that all clinic students, whether certified as student-lawyers or not, follow the jurisdiction’s ethics rules.

A major premise spurring the development of clinical legal education in the 1960s was the widely shared belief that conventional classroom methods are not very effective in inculcating professional standards, whether in the field of legal ethics or in the broader aspects of professional responsibility. Only by taking primary responsibility for clients may any law student fully experience the ‘professional pulls and choices’ and the ‘balancing of loyalties and professional responsibilities’ of being a lawyer. Clinic students certified as student-lawyers have the opportunity to practise law, something that law students working as law clerks in the summer or part-time during the school year cannot do. Representing real-life clients in role as lawyers, under the supervision of law faculty who focus on each student’s learning and development, makes the clinical experience unique.

In well-structured clinical experiences, law schools provide law students with the opportunity to confront ethical issues in role as lawyers and under the supervision of experienced teachers who are striving to create model ethical law offices. In model ethical law offices, clinic faculty also explicitly discuss ethical obligations as part of the clinic orientation and involve clinic students in the office procedures focusing on their ethical responsibilities.

Perhaps the greatest advantage of real client clinical legal education courses over traditional courses or simulation courses is the role socialisation law students undergo and the exposure to ethical issues in role as lawyers. Given the critical importance of clinical legal education to the ethical development of law students, and with an increasing number of law students becoming student-lawyers each year through in-house clinical programs, it may be difficult for clinical faculty to overemphasise the ethical obligations of clinic students and the need to structure law school clinics as model ethical law offices. Thus, clinic faculty should hold clinic students to the same ethical standards as lawyers, both to further the ethical representation of clinic clients and to maximise the ethical learning and professional acculturation of law students in law school clinics.