Kuehn, R R; Joy, P A --- "Lawyering in the academy: the intersection of academic freedom and professional responsibility" [2010] LegEdDig 7; (2010) 18(1) Legal Education Digest 22

• Lawyering in the academy: the intersection of academic freedom and professional responsibility

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Lawyering in the academy: the intersection of academic freedom and professional responsibility

R Kuehn & P Joy

J Legal Educ, Vol 59, No. 1, 2009, pp97- 124

The professional standard for academic freedom traditionally guarantees teachers ‘freedom in the classroom in discussing their subject’ provided the teachers do not ‘introduce into their teaching controversial matter which has no relation to their subject’. Such freedom protects the learning process and promotes the common good, which ‘depends upon the free search for truth and its free exposition’.

Today, the American Bar Association (ABA) requires every accredited law school to offer substantial opportunities in live-client or other real-life practice experiences. In addition to lawyering in clinics, a number of law professors act as attorneys in cases handled as part of law school seminars, applied legal research and writing classes, or live-client components of related upper-level substantive courses.

The legal academy has given little thought to how practising law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.

Scholarship on interference in clinical programs has focused primarily on the impropriety of interference with the institutional autonomy of law schools by those outside the university, such as politicians or business interests attempting to pressure universities and law schools not to represent or to abandon the representation of some clients. Consequently, there is virtually no scholarly attention to the tension between the individual lawyer-professor’s academic freedom and professional responsibility to clients and the law school’s decision-making authority.

Because of the potential for internal influence on their teaching, law faculty teaching real-life experiential learning courses often experience a tension in carrying out their educational mission that classroom faculty do not.

Instead, our focus is on academic freedom as a professional norm and instrumental right promoting legal education as expressed by the American association of University Professors (AAUP) and recognised and protected by the Association of American Law Schools (AALS) and the ABA.

When a dean, the law faculty, or the university administration seeks to influence a professor acting as a lawyer in a law school course, a common response is to say that the professor enjoys the same academic freedom as other members of the legal academy. Some have compared a professor’s decisions about which legal matters to undertake to a classroom teacher’s choice of textbooks, and the professor’s decisions on handling cases similar to a classroom teacher’s decisions about what to teach in class. But not all underlying issues are comparable, and the shield of academic freedom may not be so obvious or impenetrable.

Additionally, professors practising law within the academy often argue that their professional responsibility obligation to exercise independent judgement in client representation should shield them from attempts to influence or interfere with their work.

Interference with law practice in the academy typically occurs after client representation has begun, through efforts to control or veto individual faculty decisions over which matters to undertake or which strategies to employ.

The AAUP, AALS, and ABA each promote academic freedom principles in law school teaching. The AAUP separates academic freedom into three elements: freedom of inquiry and research; freedom of teaching, including both what may be taught and how it shall be taught; and freedom of extramural utterance or action.

Giving the professor the ultimate choice about what and how to teach when the course’s influence reaches beyond the classroom also promotes the university’s neutrality by allowing the school to disavow responsibility for controversial materials or methods and avoid taking sides in a dispute.

AALS regulations explicitly state that academic freedom applies to all engaged in teaching, including in a clinical program, without regard to whether the professor is eligible for tenure.

Although they may not be perfect analogies, clinical professors and others have argued that courtrooms, administrative hearings, and other practice settings are the classrooms and that cases are the teaching materials.

However, academic freedom is not absolute. Not only must the professor refrain from introducing controversial material unrelated to the subject being taught, but a dean or department head usually decides which courses the faculty member will teach, in the process dictating the general subject matter the faculty member may pursue in the classroom. In addition, faculties usually approve new courses, and that approval generally involves review of a proposed coursebook and syllabus. Although that approval may occur long before a professor makes her choice about materials and assignments, the approval process underscores the fact that the individual faculty member does not have unfettered freedom to teach whatever she desires.

Complicating the analogies between legal matters and textbooks and lawyering courses and classrooms is the impact cases and other legal matters may have beyond the students in the classroom. Some cases may create difficulties, politically and economically, for the university, law school, or other law faculty.

Given the growing consensus of opinion that more experiential learning opportunities are needed and that law schools have the obligation to advance access to justice for those unable to secure private counsel, the legal academy should embrace academic freedom norms broad enough to recognise and defend the decisions that professors make in pursuing those experiences for students. At the same time, academic freedom should not be so broadly construed to permit the professor to disregard established educational guidelines for the types of cases appropriate for a particular course.

In addition to their academic role as professors, law teachers handling legal matters in their courses are lawyers. As such, they have professional responsibilities toward clients that other members of the legal academy do not. Also, like a lawyer in a law firm, the typical clinical professor usually has ethical duties and reporting obligations as a subordinate or supervising attorney.

When analysing lawyering in the academy, the roles and responsibilities of law school administrators, especially the clinical program director, in relation to the individual professor are important. To understand this relationship, it is necessary to define the law office within which the professor practices. If no one else is involved in the client representation and sufficient measures are taken to avoid inadvertently creating a program-wide law firm through shared office space, the law firm could be the individual law clinic or course the professor teaches. Where professors work together on cases or share office space and personnel, the entire clinic program may be defined as a law firm.

Hence, as a general rule, school administrators not working in the clinic are not part of the law clinic firm, do not have an attorney-client relationship with clinic clients, and are not entitled to confidential client information unless the client has consented to the disclosures.

Whenever a clinical program operates as a law firm, the clinical program director takes on managerial authority over the work of the clinic and may also have direct supervisory authority over some or all of the other faculty lawyering in the clinic law office.

By operating within a law firm and not as sole practitioners, clinic professors may have to yield some professional autonomy to the firm’s supervising attorney – the clinic director – just as lawyers in a firm or a legal services office do.

Professional responsibility rules require attorneys with managerial authority to establish internal policies and procedures to provide reasonable assurance that all lawyers in the firm conform to ethics rules. Therefore, where a clinical program director assumes authority comparable to that of a partner in a law firm, that director is at least indirectly responsible for all the work done in the law clinic and generally would be expected to prohibit actions by a subordinate clinic attorney or students that would violate rules of professional conduct.

The law school’s hierarchy also may be a complicating factor in resolving issues of professional responsibility. A clinical program director who holds a faculty rank equal to or less than another faculty member in the program may encounter difficulty in presuming to supervise the professional judgements of other faculty.

Attempts to influence case decisions of faculty lawyering in the academy also may present conflict of interest issues. A professor practising law cannot permit a person who provides compensation or employment, be it a dean, university president or trustee, to interfere with, direct, or regulate that lawyer’s independent professional judgement or otherwise interfere with the client-lawyer relationship.

One way clinical programs may avoid potential conflicts of interest between a client and a law professor’s obligations to the law school or university is by implementing policies that prohibit representing clients in disputes with the university or law school.

Another area for potential conflicts arises when a professor represents a client in a controversy with a member of the governing body of or a major donor to the university or law school. To represent a client in such a matter, the faculty member must reasonably believe that her professional judgement would not be adversely affected by her personal interests – that the donor does not have control or influence over the faculty member’s salary, contract renewal, or tenure. No matter how mundane the legal matter, clinical faculty can become unwittingly embroiled in a controversial matter that threatens their job security if the opposing party, opposing counsel, or someone else interested in the matter believes that outside pressure will cause a university administrator or the law school dean to intervene. Whenever there is an attempt to influence how a faculty member represents a client, a potential conflict of interest is present.

The allocation of authority between the client and attorney may become an ethical issue particular to lawyering in the academy where a faculty member seeks to limit the scope of services to a client due to law school or university restrictions on client representation, such as a restriction on suing the state or seeking certain types of relief, like attorney’s fees. Ethics rules require a lawyer to abide by the client’s decisions concerning the objectives of representation and consult with the client as to the means.

Once representation has begun, ethical norms permit the lawyer-professor to withdraw from the representation only if there is a fundamental disagreement with the client, the representation may result in an unreasonable financial burden on the lawyer, or other good cause exists.

With this overview of academic freedom principles and professional responsibility rules in mind, in this section we consider the three most prevalent types of internal influences on case or legal matter decisions: 1) university policies limiting case selection or means of representation; 2) administration control over individual case selection; and 3) intervention in ongoing cases and legal matters.

Policies limiting case selection or means of representation: The first type of internal influence occurs when university officials establish policies that limit client representation decisions. These restrictions typically prohibit even cases that clearly fall within the mission and types of matters handled by the clinic and do not apply to lawsuits against other parties.

The motive usually is not related to the educational mission of the university or a concern about the allocation of scarce resources. Instead, the policies seek to protect certain parties or avoid potentially controversial cases in order to shield the university from criticism by politicians and possible threats to state funding.

Thus, in our view, such efforts to avoid controversy or appease certain influential persons or groups infringe on both the faculty’s collective right to establish educational policies and undermine the academic freedom of the individual professor to choose the most appropriate and effective means to educate students.

As for professional responsibility considerations, ethical norms disfavour, but do not preclude, such prior restrictions. Rather, case intake policies should encourage, not restrict, acceptance of unpopular clients and cases, particularly where the clients may not otherwise be able to obtain legal assistance.

Thus, while both academic freedom and professional responsibility norms argue against broad case restrictions, university officials have so far been able to adopt such prohibitions without challenges to their authority.

Control over individual case selection: A few law schools have adopted policies that vest pre-approval in school officials of certain types of law clinic cases that might bring the school into conflict with politicians, donors, or alumni.

Decanal control over individual case selection is usually motivated by a desire to avoid bad publicity or outside attacks on the school. Unlike restrictions barring representation of certain categories of clients or suits against certain parties, the professor may initially evaluate whether the matter would be appropriate for representation rather than face a blanket prohibition against certain types of matters.

Unquestionably, pre-approval requirements run counter to the ethical norm that representation should not be denied to clients whose cause is controversial, especially where law clinics may be the ‘last lawyer in town’. But professional responsibility rules are ‘directed against interference with the exercise of the attorney’s independent professional judgment in those matters which they do undertake on behalf of a client’.

Intervention in ongoing cases and legal matters: Some law school officials have also attempted to override decisions by professors concerning ongoing legal matters.

Intervening officials have usually claimed that the faculty member violated a policy or pre-filing procedure, albeit unwritten and unannounced, which forfeited any claim of academic freedom to proceed as the professor so chose.

Such severe actions undermine the credibility of the teacher, prevent the students from completing their course project, and inhibit the professional judgement of the clinical teacher, all harms antithetical to academic freedom norms.

But, absent a gross breach of teaching standards or improper action that exposes the school to malpractice or other liability, school officials should wait until after the case is resolved to discuss the matter in detail and develop, with the faculty, appropriate prospective policies.

Professional responsibility rules clearly prohibit interference in an ongoing legal matter, stating repeatedly that those who employ a lawyer to render legal services to another cannot be permitted to direct or regulate the lawyer’s professional judgement.

Nevertheless, if the right to direct a subordinate lawyer resides with a clinical program director, that should be made clear in advance. Clarifying this relationship is especially important when the program director holds a faculty rank equal to or less than other faculty in the clinical program.

Having analysed three types of internal influences on case decisions, we offer the following framework for defining the boundaries of academic freedom and professional responsibility norms when a professor practices law in the academy.

First, there is no professional responsibility norm that prevents administrators or faculty from imposing prior restrictions on the types of cases or other legal matters that a professor may be undertake. Academic freedom norms recognise that the faculty acting collectively has the authority to impose limits on a course’s subject matter and methods of instruction. However, the limits the faculty as a group imposes on client representation courses should be consistent with limits it imposes on other types of courses. Academic freedom norms also allow intervention by a dean or other university official only in exceptional circumstances. In addition, limits based on grounds other than educational merit or ethical norms are contrary to the educational mission of the law school.

The faculty also should strive to avoid possible disputes and misunderstandings with individual faculty members by making explicit, in writing, the types of legal matters that may and may not be accepted for representation and the procedures for determining which particular matters to accept.

Second, once the faculty has approved the types of matters a clinic or seminar may handle, it should not vest case-by-case veto authority in the dean or other outside authority. Doing so infringes on the academic freedom traditionally vested in the teacher. Leaving case-by-case decision making with the professor also helps insulate the law school and dean from outside attacks, especially if there are clear case acceptance guidelines.

Each law school should also make explicit the role of the clinic director in the undertaking of new legal matters. In the absence of a prior policy granting the director supervisory authority over the professional legal work of the clinical professor, the director should respect the academic freedom of a particular professor to decide which legal matters are best for students, provided the faculty member’s decision is consistent with established case guidelines.

Third, with respect to ongoing cases, once the attorney-client relationship is formed, professional responsibility norms are paramount, generally granting the professor sole discretion, in consultation with the client, to make case decisions.

Even if the clinical program director has a case-by-case supervisory role, the director must always consider whether intervention in an ongoing matter is worth the potential damage to the director’s relationship with the other professor. Except in rare situations, disagreements about the handling of a case are best left for discussion and possible policy changes after the matter is resolved.

Fourth, but no less important, a faculty member lawyering in the academy should not face discharge, contract non-renewal, or other penalty over a case or client decision. Only actions that violate a clearly articulated law school policy or a significant ethical obligation to the client rise to the point of ‘good cause’ for personnel actions under academic freedom principles.

Unless the faculty member is free to pursue a client’s objectives without fear of retribution for displeasing a dean or others who control salary, promotion and perquisites, the faculty member will be placed in a personal conflict situation with the client that would require the client’s informed consent.

As a practical matter, we do not suggest that a professor’s academic freedom rights and professional responsibility obligations should govern all issues involving lawyering in the academy. Nevertheless, when the issue is not whether the legal matter handled by the professor-lawyer has appropriate educational merit but, instead, whether it might put the university or law school in an uncomfortable position, schools should respect the academic freedom of the professor and the professional responsibilities of the lawyer. If these higher ideals are kept in mind, then disputes over the proper role of professors in a particular case can be resolved in a way that does not harm students, clients, or the principles to which the legal profession and the legal academy aspire.