Legal Ethics of Interference

Robert R. Kuehn & Peter A. Joy

An Ethics Critique of Interference in Law School Clinics

71 Fordham L. Rev. 1971 (2003), https://ssrn.com/abstract=407060

I. Introduction

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Working as lawyers on behalf of clients, student-lawyers and law clinic faculty experience the legal ethics issues lawyers face every day, such as client confidentiality, conflict of interest, and competency issues. In addition, the work of student-lawyers and faculty in clinical programs sometimes brings them in contact with ethical issues often faced by lawyers representing poor and unpopular clients – interference in case and client selection and restrictions on the means of representing a client. The interests of politicians and of university alumni and donors add an additional level of outside interest and potential interference in law school clinic activities.

Although there is a history of outside interference in law school clinic case and client decisions, there is a dearth of scholarship examining these matters. This Article fills that gap by exploring the ethical considerations, as defined by accepted norms of professional conduct,⁸ raised by interference in law school clinic case and client selection or limitations on the means of representation clinic lawyers may employ in representing their clients.⁹ Some of the analysis of the ethical issues implicated by interference in law school clinical programs also serves as a useful framework for analyzing restrictions on or interference with legal services lawyers and private practitioners representing poor or unpopular clients and causes. This Article does not address case and client representation issues once a case has been accepted, except to discuss how limitations on how an attorney may represent a client influence decisions concerning whether or not to proceed with the representation.¹⁰

Part II of this Article discusses political interference in law school clinic case and client selection, tracing the history and types of interference. It also explores the ethical underpinnings of the right of clinic lawyers to choose clients and cases, and their obligations to represent unpopular or controversial clients and causes. Further, it analyzes a clinic lawyer’s ethical obligations to act independently of third-party interests, and how interference by other lawyers is contrary to the interfering lawyer’s pro bono responsibilities, duty not to prejudice the administration of justice, and prohibition on using means that have no substantial purpose other than to embarrass, harass, or delay a third person.

Part III explores restrictions imposed by third parties on how a law school clinic may represent a client, such as prohibitions on attorney’s fees or seeking class action status. It addresses both the legality of these practice restrictions and whether they may breach rules of professional conduct.

Part IV concludes that the identification of the ethical concerns raised by such interference and a discussion of the consequences for those who seek to meddle in a clinic lawyer’s case and client decisions provide a framework for discouraging such interference. This framework may be utilized not only by law school clinics but by any lawyer facing interference with client and case decisions, particularly when seeking to provide access to the courts for poor or unpopular clients.

II. Outside Interference in Law School Clinic Case and Client Selection

An initial ethics consideration in law clinic case and client selection is the independence of the law clinic supervising attorney to choose cases and clients that meet the clinic’s educational and public service goals.¹¹ Scarce clinical program resources and pedagogical objectives require some limits on whom may be represented or what cases may be handled. A recurring ethical issue is the propriety of politically, economically, or ideologically-motivated efforts by persons and organizations outside the law school clinic to limit the clinic’s choice of clients and cases. While rules of professional responsibility strictly prohibit interference with an attorney’s exercise of professional judgment once a case has been accepted, the independence of a law clinic attorney’s choice of clients and cases is less clearly safeguarded.¹²

A. History and Types of Interference in Clinic Case and Client Selection

Since at least the late 1960s, politicians, attorneys, business interests, and university officials have attacked law school clinics for their choices of clients and cases.¹³ In the early 1970s, Governor Meskill of Connecticut and members of the local bar objected to the University of Connecticut’s law school clinic representing war protestors and other unpopular clients.¹⁸ This resulted in a threat to cut off state funding as well as a proposal that the dean and a law school faculty committee screen law clinic cases.¹⁹ In response, the clinic professor requested and received ABA Informal Ethics Opinion 1208, which found that case-by-case prior approval by the dean or a faculty committee would violate the professional ethics of the dean and clinic director.²⁰ Soon after the ABA opinion was issued, the law school abandoned the oversight process.

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As a result of these multifaceted public attacks on law school clinics, some clinics have refused to represent certain controversial cases or clients because of fears that taking such cases could result in threats to their continued operation.⁸⁷ Many other clinics have had to respond to phone calls and letters, or to defend their case and client selection decisions before meetings with law school and university officials, because of complaints from legislators, alumni, opposing counsel, and university donors.⁸⁸ Although the frequency and severity of such informal and indirect pressure is not documented, such efforts also have the potential to influence a law clinic supervisor’s professional decisions.

This history of outside interference in law school clinic decisions reveals a number of patterns. While early attacks were often defended on the unfounded ground that clinics were interfering with the ability of members of the bar to compete for paying clients,⁸⁹ or motivated by a desire to prevent lawsuits against the state, more recent attacks, such as those on environmental law clinics, appear to be motivated by a desire to protect the financial interests of clients, alumni, and university donors. As one observer argued, the true concern of law clinic critics is that clinics are “bringing suits that wouldn’t be brought at all if the clinic didn’t do it.”⁹⁰

State-funded law schools have been the predominant target for such interference. This is due to their vulnerability to the political views of elected officials, the perceived impropriety of a state-funded school suing to require another state agency to spend taxpayer moneys, concerns that law clinic lawsuits against important industries might undermine the economic base of the state, disagreement with the use of taxpayer money to fund legal services for the poor, or a desire to avoid “taking sides” on controversial social or political issues.⁹¹ Nonetheless, the attacks on Tulane Law School demonstrate that private law schools are not immune from such attacks.

Attorneys often play a prominent, and sometimes dominant, role in interfering in law school clinics. Lawyers prodded the University of Mississippi to take action against its law clinic professors and were active in the attacks on the Connecticut, Tennessee, Oregon, Tulane, and Pittsburgh clinics.⁹² Interference in clinic activities by university administrators have often, as in the case of Mississippi, Pittsburgh and St. Mary’s, come from officials who are themselves attorneys. Among the justifications given by these attorneys for such interference are the alleged inappropriateness of a clinic opposing the interests of law school alumni or their clients and the alleged desire to protect the school from the financial harm and loss of public good will that the clinic’s involvement in controversial cases might bring.⁹³

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B. A Lawyer’s Freedom to Choose Clients and Cases . . . and Even Solicit

Clinic lawyers, like all lawyers, are customarily free to choose clients and cases, but rules of professional conduct and anti-discrimination laws may impose limits on this traditional freedom.

1. The Traditional Freedom to Choose

Custom holds that lawyers would be better advocates if they had the freedom to choose clients and cases.⁹⁸ Thus, although English lore describes the barrister as ethically bound to accept any case or client upon the tendering of a proper fee, in the United States lawyers have been free to refuse their services to any client for any reason.⁹⁹ Ethics rules reflect this freedom, observing that “[a] lawyer is under no obligation to act as advisor or advocate for every person who may wish to become his client.”¹⁰⁰ As Professor Charles Wolfram stated the traditional rule: “[A] lawyer may refuse to represent a client for any reason at all – because the client cannot pay the lawyer’s demanded fee; because the client is not of the lawyer’s race or socioeconomic status; because the client is weird or not, tall or short, thin or fat, moral or immoral.^“101

Although this dogma supports the right of the law school clinic professor to choose cases and clients, two exceptions may constrain the clinic lawyer’s discretion: court appointments and anti-discrimination rules and laws. Courts often find it necessary to appoint law clinics to represent clients with unpopular causes or without the ability to pay for an attorney. The ABA Model Rules of Professional Conduct (Model Rules) provides that a lawyer shall not seek to avoid a court appointment except for good cause.¹⁰² Examples of good cause arise when an appointment is likely to result in violation of the rules of professional conduct or other law, when the appointment is likely to result in an unreasonable financial burden on the lawyer, or when the lawyer finds the client or cause so repugnant as likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.¹⁰³ The ABA Model Code of Professional Responsibility (Model Code) likewise instructs lawyers not to seek to be excused from undertaking appointed representation except for compelling reasons, which do not include the repugnance of the subject matter of the proceeding or the identity or position of the person involved unless the intensity of the lawyer’s personal feelings, as distinguished from community attitude, may impair effective representation of the client.¹⁰⁴

An ethics opinion by the Tennessee Board of Professional Responsibility illustrates the limited ability of an attorney to avoid a court appointment. An attorney who routinely practiced in juvenile court was appointed to represent minors who petitioned the court for waiver of the parental consent requirement to obtain abortions.¹⁰⁵ The attorney inquired whether he could decline to accept the appointment for moral or religious reasons, arguing that he was a devout Catholic and advocating a right to abortion would be contrary to his ethical and moral beliefs. While directing the attorney to address his request to withdraw to the court, the ethics committee noted that where there is a conflict between the moral and ethical beliefs of counsel and those of the client, the attorney’s moral belief’s must yield to the beliefs and rights of the client.¹⁰⁶ Thus, mere disagreement with the client’s cause or moral beliefs is insufficient for a lawyer or law school clinic to avoid a court appointment.¹⁰⁷ An attorney’s beliefs or repugnance towards the client or the cause must be so compelling that they will impair the attorney’s independent professional judgment and ability to represent the client.¹⁰⁸

Though most law school clinics welcome court appointments, and indeed some clinics obtain clients exclusively by court appointments, there is continuing uncertainty over the power of courts to assign counsel without compensation. Many federal district court rules require members of the district court bar to accept limited court appointments without compensation as part of the bar’s duty to provide representation to indigents.¹⁰⁹ In Mallard v. United States District Court for the Southern District of Iowa, the Supreme Court held that where a federal statute provides that a court may request an attorney to represent an indigent client, the statute did not authorize a court to compel an unwilling attorney to represent an indigent litigant in a civil case.¹¹⁰ The Court made clear that it was not expressing an opinion on whether federal courts possess inherent authority to require lawyers to assist those who are too poor to afford counsel.¹¹¹ In looking at how state courts have ruled on the inherent authority of a court to order uncompensated representation, one commentator reported:

Until recently, the vast majority of jurisdictions upheld court appointment of counsel, whether full compensation was provided or not, considering such service part of an attorney’s traditional duty as an ‘officer of the court.’ . . . Recently, however, many jurisdictions have struck down or significantly limited the court appointment of attorneys, unless adequate compensation is provided.¹¹²

Because law school clinics generally do not charge or expect compensation, objections to a court appointment on the ground that appointment without compensation is improper would not be well founded. Nonetheless, a clinic lawyer, like all lawyers, has a duty to decline a court appointment where the representation may result in a violation of ethical responsibilities (such as where the case has no substantial purpose other than to embarrass, delay, or burden a third person or would create a conflict of interest),¹¹³ where the claims are frivolous,¹¹⁴ where the clinic attorneys or their students lack, and will be unable to obtain, competence,¹¹⁵ or where the clinic’s limited budget would prevent it from adequately funding the extensive litigation needed to represent a client competently.¹¹⁶

There are two emerging exceptions to the lawyer’s traditional freedom to choose clients and cases — the application of anti-discrimination statutes to attorneys and state rules of professional responsibility that prohibit attorneys from discriminating in the practice of law. Many lawyers have established law firms to protect the rights of racial minorities, religious groups, women, or gays and lesbians. In the process, these lawyers choose to represent certain classes of people or certain points of view and refuse to represent others. When attorney Judith Nathanson advised a potential male client, Joseph Stropnicky, that she would only represent women in divorce proceedings, Stropnicky filed a complaint with the Massachusetts Commission Against Discrimination (Commission).¹¹⁷ Nathanson could have simply stated that she was too overworked to take the case or did not care for Stropnicky’s tone of speech or haircut, or perhaps argued that the representation would create a conflict of interest with the legal positions taken on behalf of other present or past clients.¹¹⁸ However, by rejecting him because he was a man, she exposed herself to a charge of sex discrimination. The Commission rejected Nathanson’s argument that a law office that selectively accepts clients is not a public place as defined by the Massachusetts discrimination statute and it fined her $5,000 for refusing to represent men in divorce proceedings.¹¹⁹ A 1996 New York case involving the refusal of a dentist to treat patients whom he believed to be HIV-positive similarly held that health care offices that provide services to the public are subject to the state’s anti-discrimination laws.¹²⁰ Thus, law school clinics, or at least those holding themselves out as open to the public, may be viewed as places of public accommodation and subject to various federal and state anti-discrimination laws.¹²¹

Some state rules of professional responsibility further restrict discrimination in case and client selection. An increasing number of states provide that a lawyer or law firm shall not unlawfully discriminate in the practice of law on the basis of age, race, national origin, sex, disability, religion, or sexual orientation.¹²² Some state ethics rules require a showing that the lawyer has violated a law prohibiting discrimination before the disciplinary rule is applicable.¹²³ Some rules even require a prior adjudication of the discrimination complaint by a tribunal other than the disciplinary committee.¹²⁴ However, other rules of professional responsibility impose an independent obligation not to discriminate.¹²⁵ A comment to Model Rule 8.4 states that a lawyer’s manifestation by words or conduct of bias or prejudice based on race, sex, religion, national origin, disability, sexual orientation, or socioeconomic status is professional misconduct when such behavior is prejudicial to the administration of justice, although this prohibition is not applicable to client selection since it only applies where the discrimination was manifest “in the course of representing a client.”¹²⁶

These anti-discrimination statutes and ethics rules may be of particular relevance where a law school clinic, either because of the clinical teacher’s choice or because of restrictions imposed by a funder or other third party, chooses to represent only certain classes of clients. Thus, a domestic violence clinic that represents only battered women and refuses to represent any male clients must consider whether that limitation is proscribed by anti-discrimination measures or whether there is a permissible basis for the denial of representation.¹²⁷

2. The Limited Right to Solicit Cases and Clients

In most instances, law school clinic attorneys not only have the freedom to choose cases and clients but also to solicit potential clients. Although a lawyer generally may not solicit professional employment from a prospective client by in-person, live telephone, or real-time electronic contact, the Model Rules permit such solicitation when the lawyer’s pecuniary gain is not a significant motive for the contact or when the lawyer has a family, close personal, or prior professional relationship with the potential client or the potential client is a lawyer.¹²⁸ The Model Code similarly permits a lawyer to solicit employment from a close friend, relative, or former client but states that a lawyer cannot initiate in-person contact with a non-client “for the purpose of being retained to represent the person for compensation.”¹²⁹ Because very few law school clinics obtain compensation from the client for the representation,¹³⁰ rules of professional responsibility authorize a clinic lawyer to solicit prospective clients.¹³¹

In addition to rules of professional responsibility, the First Amendment protects the right of a law school clinic to solicit certain kinds of cases. In NAACP v. Button,¹³² a Virginia law prohibited the NAACP from soliciting a prospective client to participate in a civil rights lawsuit. The Supreme Court held that the law infringed on the First Amendment right of the NAACP and its lawyers to associate for the purpose of assisting persons seeking redress for infringements of their constitutionally guaranteed rights.¹³³ In the context of the objectives of the clients, “litigation is not a form of resolving private differences . . . . It is thus a form of political expression.”¹³⁴ Later in In re Primus,¹³⁵ the Court reaffirmed that a state may not punish an attorney who, seeking to further political and ideological goals through litigation, advises a person of her legal rights and offers free legal assistance.¹³⁶ Subsequent cases by other courts hold that, provided the attorney is advancing associational interests, solicitation activities are protected even where the attorney’s primary motive is predominantly pecuniary, not ideological.¹³⁷ Thus, while a state may proscribe in-person solicitation for pecuniary gain under circumstances likely to result in harm to the prospective client,¹³⁸ “collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.”¹³⁹ Accordingly, where a law clinic offers free legal assistance to aid a client seeking to further political or ideological goals or to advance associational values, the First Amendment protects the clinic’s solicitation activities.¹⁴⁰

In-person contacts do not become proscribed solicitation for pecuniary gain simply because the clinic requests an award of attorney’s fees in the case. Because such fees are generally awarded in the discretion of the court, are not drawn from the plaintiff’s recovery, are usually premised on a successful outcome, and often do not correspond to the fees generally obtainable in private litigation, fee awards in cases seeking to advance the ideological and political goals of the clients are not comparable with the work of lawyers whose primary purpose for taking a case is financial.¹⁴¹ In addition, attorney’s fees recovered by law clinics generally do not go to the clinic lawyer but instead are used to support the clinic attorney’s salary or are deposited into a fund that supports the clinic’s activities.¹⁴²

Although allowed by rules of professional responsibility and protected by the First Amendment, some non-pecuniary solicitation of clients by law school clinics may be prohibited by other authorities. For example, Legal Services Corporation (LSC) guidelines prohibit LSC-funded entities, or organizations operating without LSC funds that are not separate from the LSC recipient,¹⁴³ from representing a client as a result of in-person unsolicited advice.¹⁴⁴ Further, the Louisiana Supreme Court, in response to complaints by business interests, amended its student practice rule in 1999 to prohibit any student from appearing in a representative capacity if any law school clinical program lawyer, staff person, or student practitioner initiated contact for the purpose of representing the contacted person or community organization.¹⁴⁵ The court argued that the ban was necessary to ensure that law students are not encouraged to engage in solicitation,¹⁴⁶ even though such solicitation by members of the bar is allowed under applicable rules of professional conduct and the First Amendment.

C. Obligation Not to Refuse Unpopular or Controversial Clients or Causes

A lawyer’s freedom to choose clients and cases, and right to solicit certain clients and cases, are tempered by ethical proscriptions on a lawyer’s refusal to handle controversial clients or cases. These proscriptions provide powerful ethical arguments against efforts to prevent clinics from representing unpopular clients or causes, but do not make such efforts by attorneys grounds for disciplinary action.

A comment to Model Rule 1.2 states that “legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval.”¹⁴⁷ Indeed, a lawyer has a professional responsibility to accept a fair share of unpopular matters or indigent or unpopular clients.¹⁴⁸ The Model Code also provides that a lawyer “should not decline representation because a client or cause is unpopular or community reaction is adverse,” nor does the lawyer’s preference to avoid adversary alignment against judges, other lawyers, public officials, or influential members of the community justify refusing to represent a client.¹⁴⁹

This obligation flows from the legal profession’s responsibility to provide legal services to all in need and from the principle of professional detachment or nonaccountability – that representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”¹⁵⁰ Likewise, the participation of law school clinical faculty in a lawsuit does not make the university a party to the proceeding nor constitute the university’s position on the underlying subject matter.¹⁵¹

Further, where an attorney is appointed to provide representation, the lawyer shall not decline to represent an unpopular client or refuse to accept representation of an unpopular matter because of the identity of the person or cause involved or anticipated adverse community reaction.¹⁵² A lawyer should only seek to be excused from such representation where the attorney finds the client or cause so repugnant as likely to impair the lawyer-client relationship or the lawyer’s ability to represent the client.¹⁵³

ABA ethics opinions reinforce this responsibility not to deny legal services to unpopular clients or causes. The ABA ethics committee ruled in Formal Opinion 324 that:

[A]n attorney member of a legal aid society’s board of directors is under a similar obligation not to reject certain types of clients or particular kinds of cases merely because of their controversial nature, anticipated adverse community reaction, or because of a desire to avoid alignment against public officials, governmental agencies, or influential members of the community.¹⁵⁴

A later ABA ethics opinion addressed the propriety of law school clinic case selection guidelines that sought to avoid lawsuits against government agencies or officials. Informal Opinion 1208 equated a law school clinic with a legal aid office and defined the governing body of a clinic as a hierarchy consisting of the law school faculty and its committees, the law school dean, the university administration, and the university board of trustees.¹⁵⁵ The opinion admonishes the lawyer-members of the governing body of a law school clinic to avoid establishing guidelines that prohibit acceptance of controversial clients or cases or that prohibit aligning the clinic against public officials, governmental agencies, or influential members of the community.¹⁵⁶ Instead, the lawyer-members “should seek to establish guidelines that encourage, not restrict, acceptance of controversial clients and cases, and this is particularly true if laymen may be unable otherwise to obtain legal services.”¹⁵⁷ Thus, subject matter priorities adopted by lawyers for a law clinic “must be based on a consideration of the needs of the client community and the resources available to the program. They may not be based on considerations such as the identity of the prospective adverse parties.”¹⁵⁸ According to the ABA committee on ethics, all lawyers, not just those considered part of the governing body of a law clinic, should use their best efforts to avoid the imposition of any unreasonable and unjustified restraints upon the rendition of legal services and should seek to remove such restraints where they exist.¹⁵⁹

While these ethical precepts prohibit any lawyer from imposing limitations on the representation of unpopular clients or causes, their utility in preventing such restrictions is limited. First, ABA ethics opinions are not binding on courts or disciplinary committees, although some state ethics opinions are binding.¹⁶⁰ Nevertheless, ABA opinions have significant influence on federal and state courts and disciplinary committees and provide an important source of ethics authority.¹⁶¹

In addition, the legal profession’s rules of professional conduct only apply to lawyers.¹⁶² Lay members of the university administration or state government are not bound by the rules.

Moreover, the relevant provisions in the Model Rules and Model Code are couched in permissive terms such as “should” rather than imperatives such as “shall” or “shall not,” and are found in the comments to the Model Rules and ethical considerations of the Model Code. Only imperatives define conduct for purposes of professional discipline, and comments and ethical considerations do not impose obligations but provide guidance and aspirations.¹⁶³ Thus, a lawyer’s participation in the establishment of case or client selection guidelines that limit the representation of unpopular cases or causes, according to one ABA ethics opinion, is “not a matter involving the possibility of disciplinary action.”¹⁶⁴

Although actions to limit the availability of legal assistance to unpopular clients or matters may not subject an attorney to professional discipline, this does not mean that the behavior is ethical under rules of professional responsibility.¹⁶⁵ At most, particularly where the language and intent of the ethical rules is clear, as in the case of case of deterring legal representation for unpopular clients, the absence of an imperative rule simply provides the offending attorney a safe harbor from disciplinary action.

A source of attorney professional obligations where noncompliance can result in disciplinary action is the oath given upon admission to the bar. In a number of states, the oath contains the affirmation that “I will never reject, from any consideration personal to myself, the cause of the defenseless or the oppressed.”¹⁶⁶ Any violation of the oath constitutes grounds for disciplinary action.¹⁶⁷ It is also professional misconduct to knowingly assist or induce another to violate rules of professional conduct or to violate the rules through the acts of another.¹⁶⁸ Thus, efforts by lawyers, or by nonlawyers who have been assisted or induced by the lawyer, to get law school clinic attorneys to reject defenseless or oppressed clients could be viewed as an attempt to induce a violation of a clinic attorney’s ethical responsibilities.¹⁶⁹

There is no reported case of an attorney being sanctioned for failing to uphold the aspect of the attorney oath that prohibits a lawyer from rejecting the representation of an oppressed or defenseless client or for seeking to induce another attorney to do so. However, where the motive for denying representation is apparent, such professional misconduct could form the basis for an ethics complaint and disciplinary action.¹⁷⁰

One further limit on the utility of ethical precepts prohibiting an attorney from refusing to represent an unpopular client or cause is the argument that the prescription only forbids the attorney from refusing to represent someone who requests that particular attorney’s assistance and does not prohibit an attorney from seeking to impose restrictions on the ability of another attorney to provide such assistance. Thus, lawyers outside the governing body of a clinic who seek to impose restrictions on the clinic’s representation of unpopular cases and clients could argue that they have not rejected the client but only required that of other lawyers.

However, ABA Formal Opinion 334 states that “all lawyers” should seek to avoid imposing restraints on the availability of legal services for indigents. Furthermore, an attorney’s responsibility to ensure that those unable to afford an attorney have access to legal representation implies a corresponding duty not to interfere in pro bono representation provided by others, especially when that attorney’s donated services may be the client’s sole opportunity for legal representation. Nevertheless, the ethical rules do not explicitly impose an obligation of non-interference.¹⁷¹ But, the failure of rules of professional responsibility to make attorney conduct subject to discipline does not mean that the attorney’s actions are ethical under the rules.¹⁷²

As a final matter, lawyer-members of the governing body of a law clinic, as well as those outside of the law school, should keep in mind the ethical standards of the law school teaching profession. As the ABA reported, “the law school experience provides a student’s first exposure to the profession, and . . . professors inevitably serve as important role models for students. Therefore, the highest standards of ethics and professionalism should be adhered to within law schools.”¹⁷³ “Professionalism ideals can either be enhanced or undermined by the behavior of faculty in and out of the classroom.”¹⁷⁴

The ABA’s MacCrate Report on legal education and professional development identified “Striving to Promote Justice, Fairness, and Morality,” which includes ensuring that adequate legal services are provided to those who cannot afford to pay for them, as one of the four fundamental values of the legal profession.¹⁷⁵ “Law school deans, professors, administrators and staff should be concerned to convey to students that the professional value of the need to ‘promote justice, fairness and morality’ is an essential ingredient of the legal profession . . . .^“176

The AALS’s statement of good practices similarly states: “Because of their inevitable function as role models, professors should be guided by the most sensitive ethical and professional standards.”¹⁷⁷ These heightened responsibilities include “an enhanced obligation to pursue individual and social justice.”¹⁷⁸ Considering the importance of role modeling as a clinical teaching technique and of law professors adhering to the very highest standards of professional responsibility, lawyers involved in law clinic case and client selection decisions have a heightened duty to ensure that they do not discourage the acceptance of unpopular or controversial clients or causes.¹⁷⁹

D. Obligation to Act Independently of Third-Party Interests

Efforts to influence law clinic case and client selection decisions also threaten the ethical duty of a clinic attorney to exercise independent professional judgment on behalf of the client.

1. Third-Party Interference in a Lawyer’s Professional Judgment

A fundamental value of the legal profession is an attorney’s fiduciary duty of undivided loyalty to the client. This duty manifests itself in the requirement that the lawyer act with commitment and dedication to the client’s cause and to assert zealously the client’s position under the rules of the adversary system.¹⁸⁰ As the client’s representative, the lawyer “has a duty to use legal procedure for the fullest benefit of the client’s cause” and to urge, provided the position is not frivolous, any permissible construction of the law favorable to the client, regardless of the attorney’s professional opinion of the likelihood of success.¹⁸¹

Under rules of professional responsibility, the client has the ultimate authority to determine the objectives of the representation and shall be consulted as to the means to be employed by the attorney.¹⁸² Even as to means, while the lawyer may exercise professional discretion regarding technical and legal tactical issues, the attorney should provide the client with sufficient information to participate in decisions concerning both objectives and means and should usually defer to the client on questions of expenses and concerns for third persons.¹⁸³ A client may agree to limit the scope of the lawyer’s services, although any such agreement must comply with rules of professional conduct and other laws.¹⁸⁴ Accordingly, a client can agree that the lawyer will handle only certain claims, only represent the client at the trial level, or only seek certain remedies.¹⁸⁵

As part of the duty of loyalty, a lawyer “shall exercise independent professional judgment and render candid advice.”¹⁸⁶ Thus, an attorney may not represent a client if there is a significant risk that the representation will be materially limited by the lawyer’s personal interests or responsibilities to a third party, unless the lawyer reasonably believes that she will be able to provide competent and diligent representation and the client gives informed consent.¹⁸⁷ One way rules of professional responsibility guard against any interference with the lawyer’s judgment is through rules addressing possible conflicts of interest.¹⁸⁸

Another is by prohibiting third parties from interfering in the attorney-client relationship. Where an attorney’s services are paid for by a person or organization rather than by the client, there is a heightened concern that the attorney may feel accountable to the third-party or that the third-party may seek to exert economic, political, or social pressure on the attorney’s professional judgment.¹⁸⁹ Model Rule 5.4(c) provides that a lawyer “shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.”¹⁹⁰ Rule 1.8(f) similarly prohibits a lawyer from accepting compensation from one other than the client unless there is no interference with the lawyer’s independence of professional judgment or the attorney-client relationship.¹⁹¹

The Model Code contains the same restriction – a lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services to another to direct or regulate the lawyer’s professional judgment.¹⁹² The Model Code explicitly allows a lawyer to be employed by a legal aid or public defender office operated or sponsored by a duly accredited law school, provided there is no interference with the exercise of independent professional judgment on behalf of the lawyer’s client.¹⁹³ Where the potential for such third-party pressures may be present, the lawyer should make full disclosure to the client, obtain the client’s informed consent to representation, and only proceed if the lawyer believes that her independent professional judgment will not be impaired by the existence of the relationship with the third party.¹⁹⁴

The ABA’s ethics committee has cautioned against the influence of third parties on a lawyer’s independent professional judgment, particularly where that influence may be motivated by an attempt to avoid the handling of controversial clients or cases. ABA Formal Opinion 324 held that the governing board of a legal aid organization has an obligation to set priorities in the allocation of limited resources and to determine the types or kinds of cases staff attorneys may undertake and the types of clients they may represent.¹⁹⁵ However, there is a fear that in making case or client selection decisions, the governing body may seek to avoid cases that are unpopular or that would align the organization against influential members of the community. Thus, in determining which clients or cases its attorneys may undertake, the governing board should set broad guidelines regarding client eligibility, suitable case matters, and program priorities, rather than acting on a case-by-case or client-by-client basis.¹⁹⁶ Those broad guidelines must be based on the needs of the client community, the resources of the program, and, in the case of law clinics, pedagogical goals, not on the identity of prospective adverse parties or anticipated adverse community reaction.¹⁹⁷

Ethics committees have repeatedly held that case selection procedures that require prior approval of clients and cases on a case-by-case basis by boards of directors or non-lawyer executive directors of legal aid organizations are improper under the rules of professional responsibility.¹⁹⁸ This does not mean that staff lawyers cannot be required to consult with and follow the case selection directives of senior staff attorneys or even the executive director (if a lawyer), just as the associates in a firm are subject to the direction and control of partners.¹⁹⁹ However, according to the ABA ethics committee, external control on a case-by-case basis of a staff attorney’s case selection judgment is improper.

Regarding law school clinics, the ABA ethics panel held that requiring a clinic lawyer to seek case-by-case basis prior approval of the dean or a law faculty committee before accepting a case against a government officer would violate the ethical responsibilities of the dean, faculty committee members, and clinic lawyers “because the case-by-case review makes it likely that the independent judgment of the five clinic lawyers and their loyalty to their clients will be impaired.”²⁰⁰ Provided they do not act on a case-by-case basis and the selection guidelines do not seek to avoid controversial cases or clients, the governing board of a law school clinic²⁰¹ may “legitimately exercise control by establishing priorities as to the categories or kinds of cases which the office will undertake” without running afoul of rules of professional responsibility.²⁰² Similarly, a former comment to the Model Rules explained that representation provided by a legal aid agency may be subject to limitations on the types of cases the agency handles.²⁰³ By extension, a financial donor to a law clinic could condition receipt of the funds on representing certain categories of clients, provided the conditions do not violate rules of professional responsibility or other laws.²⁰⁴ But within the policies and conditions set by the governing board or funding source, the clinic lawyer retains the discretion to make case and client selection decisions on a case-by-case basis.²⁰⁵

The rationale for allowing those outside of the law clinic to impose case and client selection policies is that, prior to initiation of the representation, the lawyer is not rendering legal services to the client.²⁰⁶ Hence, restricting the attorney’s freedom to select clients and cases does not direct or regulate the attorney’s professional judgment in rendering legal services or interfere with the attorney-client relationship.²⁰⁷ Nevertheless, even though such restrictions prior to formation of the attorney-client relationship may not illegally impinge on the clinic attorney’s professional judgment, such interference still may significantly intrude on the academic freedom of the law school and law clinic professor²⁰⁸ and on other professional responsibilities.²⁰⁹

Once the representation of a law clinic client begins, there can be no interference by the governing body of a clinic or advisory committee, or by any other outside entity or person, in the attorney-client relationship.²¹⁰ An ABA ethics opinion noted, “a lawyer’s obligation to remain professionally independent forbids a lawyer to drop an existing client merely because a funding source does not like that client.”²¹¹ As discussed in Part III, policies and guidelines by a governing body or other outside entity that restrict how a lawyer may represent a client after a clinic case has been selected raise significant ethical concerns.

2. The Propriety of Law Clinic Advisory Committees

The role of advisory committees in law school clinic case and client selection is also circumscribed.²¹² A requirement for a law clinic attorney to consult with an attorney advisory committee prior to making a case or client selection decision does not violate ethics rules, provided the advisory committee does not exercise any decision-making authority.²¹³ Where a law clinic is organized as a tax-exempt public interest law firm under section 501(c)(3) of the Internal Revenue Code, the clinic must establish a board or committee, not controlled by employees or persons who litigate on behalf of the organization, to determine the clinic’s policies and programs.²¹⁴ To comply with rules of professional responsibility, a law clinic committee’s role must be strictly advisory and must not directly or indirectly impinge on the attorney’s independent professional judgment or discourage the handling of controversial clients or cases.²¹⁵

Although an advisory or oversight committee could at times be created as a vehicle for directing the clinic away from certain cases or clients, it could also provide outside expertise on legal issues and serve as a buffer to politically-motivated attacks on the clinic.²¹⁶ However, where creation of the advisory committee is motivated by hostility to the law clinic’s case and client selection activities, service on the committee by a member of the bar would be contrary to the ethical precept that legal services should be fully available to those in need and not denied because the client or cause is unpopular or controversial.²¹⁷

Ethics opinions countenancing a limited role for attorney advisory committees appear to support a similar consulting role for a law school dean, faculty, university administration, or university board of trustees. Nevertheless, because those in the governing body of a law clinic have the ability to hire and terminate clinic staff, regulate clinic staff salaries, benefits and promotions, and otherwise significantly influence the professional judgment of clinic attorneys, in practice such a limited, non-interfering role by law school and university representatives is doubtful. Even where those in the governing body of a clinic have no intent to sway a clinic attorney’s decisions, a requirement to consult on case selection decisions may inhibit the clinic attorney from handling certain controversial matters.²¹⁸ This is especially the case if the motivation for or effect of the advisory role is not pedagogical or resource related but instead the avoidance of controversial cases.

Case-by-case review or consultation by a law clinic governing body or attorney advisory committee also raises confidentiality concerns. As the ABA’s committee on ethics observed, “[i]t is difficult to see how the preservation of confidences and secrets of a client can be held inviolate prior to filing an action when the proposed action is described to those outside of the legal services office.”²¹⁹ Although a client impliedly consents to disclosure of confidences to other attorneys or staff in the law clinic in order to carry out the representation,²²⁰ there is no attorney-client relationship between the client and the governing body of a clinic or advisory committee and no such implied consent.²²¹ Any information sought by the oversight entity “must be reasonably required by the immediate governing board for a legitimate purpose and not used to restrict the office’s activities.”²²²Thus, unless the client has consented, prior consultation by law clinic attorneys with a law clinic’s governing hierarchy or outside committee must not result in disclosure of client confidences.²²³ Where client confidences are sought by the governing hierarchy or outside committee, the clinic attorney must fully disclose and discuss with the client the consequences of consenting to such disclosure,²²⁴ and the client’s consent must be completely voluntary, without a sense of pressure, guilt, or embarrassment.²²⁵ Receipt of services from the clinic cannot be conditioned on consenting to the disclosure.²²⁶

E. Interference as Contrary to Pro Bono Responsibilities

The obligation of attorneys to aid the legal profession in ensuring that legal services are fully available to the public presents an additional ethical constraint on interference in law school clinic case and client selection.

Under the Model Rules, “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay” for an attorney by providing direct pro bono services or, when direct pro bono service is not feasible, financial support to those providing free legal services.²²⁷ Because of the severe crisis in delivering legal services to those of limited means, the Model Rules were amended in 1993 to add the expectation that every lawyer make an additional financial contribution, beyond the individual attorney’s direct pro bono service obligation, “to support financially the very important work that is carried out by legal services programs throughout the country.”²²⁸ The preamble to the Model Rules further directs attorneys not just to devote professional time and resources but also “use civic influence” to ensure equal access to justice for all those who cannot afford or secure adequate legal assistance.²²⁹

The Model Code similarly directs that every lawyer has a responsibility to provide legal services to those unable to pay and should assist the legal profession in fulfilling its duty to make legal services fully available.²³⁰ Not only should lawyers donate their legal services to those unable to pay but “[e]very lawyer should support all proper efforts to meet this need for legal services.”²³¹

In response to cutbacks in federal funding for legal services offices and to an increasing number of restrictions on the clients and cases that are eligible for federally-funded legal services, the ABA’s ethics committee declared that it is the ethical responsibility of lawyers “to do the best we can to provide appropriate and competent legal representation for indigent persons who will no longer be able to avail themselves of this source of legal assistance.”²³² Lawyers in every jurisdiction “should take all necessary actions to prevent the abandonment of indigent clients,”²³³ including supporting organizations providing free legal services offices where they exist and establishing them where they do not.²³⁴ According to the ethics committee, there is “no doubt” as to the ethical responsibility of an individual lawyer to assist in providing legal services to those in need.²³⁵

Thus, under rules of professional conduct, all members of the legal profession bear two pro bono service responsibilities: to render pro bono services and to support, financially and otherwise, the efforts of organizations to provide such services. Despite ethics rules and advisory ethics opinions urging the legal profession to make legal services available to all in need, lawyers have in many instances lead attacks on law school clinical programs in an effort to deny access to the courts for those who are often the most in need of legal services.²³⁶ For these lawyers, their strategy focuses on denying clinic clients access to the courts, rather than letting courts decide legal disputes on the merits. Unfortunately for the clients affected, the ethics rules discussing pro bono obligations do not include mandatory language, but rather are hortatory and speak in terms of what a lawyer should do. Thus, failure to comply with these pro bono publico ethical precepts will not result in disciplinary action.²³⁷

In contrast, law schools, and their faculties, who also bear this pro bono professional responsibility, address it by providing free legal services through law clinics, school-supported voluntary pro bono programs, and pro bono requirements for graduation.²³⁸ The huge numbers of low and moderate-income persons with unmet civil legal needs led one commentator to argue that the need for law school clinic programs has rarely been greater.²³⁹ Law school clinics are the last and only lawyer in town for most of the clients they serve. Thus, restrictions imposed on clinic case or client selection do not simply drive the needy client to another lawyer outside the law school but deny legal assistance altogether.²⁴⁰

In many cases, this denial of access to all legal representation is precisely the result sought by those advancing the law clinic restrictions.²⁴¹ For a lawyer who is part of the governing body of a law school clinic to assist or accede to these efforts to deny legal assistance is contrary to the attorney’s public service responsibilities under the rules of professional responsibility, which include the obligation to support efforts of others to provide pro bono services. Acquiescence to restrictions that are motivated by a desire to deny legal assistance also contravenes the “most sensitive ethical and professional standards” expected by the ABA and AALS of all law professors.²⁴²

Lawyers not part of a law school governing body similarly breach their pro bono ethical responsibilities when their interference in law clinic case and client selection is motivated by politics, economics, or ideology and results in a denial of legal assistance to needy clinic clients. The history of attacks on law clinics reveals that attorneys attacking law school representation of certain clients or cases have not explained how the potential clients would be able to find an alternative source of representation, nor stepped forward to volunteer their time or financial resources for such representation.²⁴³ Absent such efforts to provide alternative legal representation, these attorneys have violated their “clear responsibility” to respond to funding cuts and restrictions on free legal services by providing alternative legal services or financial funding.²⁴⁴

Thus, efforts of lawyers to impose law clinic case and client selection restrictions in order to deny access to legal representation, while not illegal, are both unprofessional and contrary to long-standing ethics rules.

F. Duty Not to Prejudice the Administration of Justice ²⁴⁵

Attacks intended to deter or deny a law clinic from providing legal representation to certain clients or causes, or to impede the independent judgment of a law clinic attorney, threaten the accomplishment of justice. For, as the Model Code states, “[t]he fair administration of justice requires the availability of competent lawyers.”²⁴⁶

Both the Model Rules and Model Code state that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”²⁴⁷ Case law generally holds that this phrase does not require that the attorney’s conduct take place in court or in the presence of the judge, nor must it affect an ongoing proceeding or arise out of the attorney’s representation of a particular client.²⁴⁸ Further, words alone can be deemed “prejudicial to the administration of justice.”²⁴⁹ A lawyer’s role as a zealous advocate for a client does not excuse violations of the rule.²⁵⁰ “A showing of actual prejudice to the administration of justice is not required to establish a violation . . . . Rather, it must only be shown that the act had a reasonable likelihood of prejudicing the administration of justice.”²⁵¹ Thus, attacks on law clinics with the effect or reasonable likelihood of preventing certain persons or causes from obtaining legal representation or of interfering with a clinic lawyer’s independent professional judgment, even if done at the request of a client, may constitute actions “prejudicial to the administration of justice.”²⁵²

A number of problems may prevent the application of this rule to attacks on clinics. The Model Rules and some state rules of professional conduct require that for bias or discrimination to prejudice justice, it must be manifested in the course of representing a client.²⁵³ A number of court decisions also require a showing that the conduct or words adversely affected the administration of justice in a particular legal proceeding.²⁵⁴ On the other hand, a number of states prohibit bias or prejudice in the practice of law, operation of a law practice, or professional capacity, language broad enough to cover actions of a lawyer that are not related to the representation of a particular client or to a particular proceeding.²⁵⁵

The “prejudicial to the administration of justice” prohibition in the Model Rules was recently extended by the ABA explicitly to prohibit bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status that is prejudicial to the administration of justice.²⁵⁶ As interpreted by the comment, this rule generally prohibits actions or speech that are also regulated by other laws, but it does not specifically address bias or prejudice toward the political or social views of a client or cause.²⁵⁷ Nevertheless, in prohibiting derogatory comments about a person’s socioeconomic status, the ABA has indicated that otherwise protected speech can merit disciplinary action when a lawyer, acting in a professional capacity, knowingly uses words or conduct for the purpose of interfering with the ability of the judicial system to administer justice.²⁵⁸

Application of the administration of justice rule to punish lawyers for what they say, as opposed to what they do, to restrict the ability of an attorney to provide legal representation raises significant First Amendment problems.²⁵⁹ Public criticism of an opposing attorney or law clinic program would generally be protected speech.²⁶⁰ On the other hand, false statements, or those made with reckless disregard as to their truth or falsity, and statements intended to harass, threaten, or ridicule other attorneys or parties may not be protected.²⁶¹

Application of the rule to attacks on law clinics also is susceptible to arguments that it is unconstitutionally vague or overbroad. Generally, courts have held that the “prejudicial to the administration of justice” standard is not unconstitutionally vague because the standard is considered in light of the traditions of the legal profession and its established practices, and as a rule written by and for members of the bar, it need not meet the precise standards of clarity that might be required for rules of conduct for laymen.²⁶² This justification depends, in part, on the argument that lawyers “have the benefit of guidance [as to the term’s scope] provided by case law, court rules and the ‘lore of the profession’.”²⁶³

Ethics rules’ longstanding position that unpopular clients and causes should not be denied legal representation and clear proscription against efforts to interfere with an ongoing attorney-client relationship should provide attorneys with fair notice that attacks on law clinic representation may subject the attacking attorney to discipline. However, it could also be argued that in the absence of previous court or ethics decisions finding attacks on other attorneys to be improper, application of the “prejudicial to the administration of justice” standard is unfair.²⁶⁴

Consequently, where the words or conduct are aimed at preventing a law clinic from providing controversial clients with access to the judicial system or at interfering with an ongoing legal relationship, attacks by an attorney that are intended to deny or deter a law clinic from providing independent legal assistance could be considered prejudicial to the administration of justice and might survive a constitutional challenge. Nonetheless, a review of reported cases and state ethics opinions did not uncover any instance where an attorney’s attempt to induce another attorney to reject or diminish the representation of a defenseless or controversial client was alleged to be prejudicial to the administration of justice, an absence that is not surprising given the lack of a specific ethics rule condemning such attacks and the First Amendment concerns mentioned above.

G. Prohibition on the Use of Means That Have No Substantial Purpose

Other Than to Embarrass, Harass or Delay a Third Person

Where an attorney is engaging in attacks on law clinic representation in the course of representing a client a final ethical prescription also may apply.²⁶⁵ The Model Rules provide that in the course of representing a client “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.”²⁶⁶ Similarly, the Model Code prohibits a lawyer from taking action on behalf of a client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.²⁶⁷ These prohibitions, intended to temper the zeal with which a lawyer is permitted to represent a client,²⁶⁸ are not limited to activities in litigation or the courtroom,²⁶⁹ and include conduct directed at opposing counsel and opposing parties.²⁷⁰

Extra-judicial attacks on law clinics intended to deny or delay clients access to clinic representation or to induce a clinic attorney to render less than independent professional representation would lack a substantial purpose other than to embarrass, delay, or burden the clinic attorney or her client.²⁷¹ Because such efforts are prohibited by imperative rules of professional conduct, they could constitute misconduct under the Model Rules or Model Code. For instance, lawyers prompting or participating in an audit or other investigation of a law school clinic that seeks to intimidate or interfere with the clinic’s legal representation could be viewed as violating, or assisting or inducing another to violate, the ethical prohibition on use of means that have no substantial purpose other than to embarrass, delay, or burden a third person.²⁷² Similarly, filing or threatening to file an ethics complaint against a law school clinic attorney to gain an advantage in a pending case or to intimidate the attorney from providing legal representation would lack a substantial legitimate purpose.²⁷³ However, the attorney engaging in such tactics may argue under the Model Rules’ language that the action had some other “substantial purpose” and, therefore, does not subject the attorney to discipline or, in some instances, that it is otherwise protected speech under the First Amendment.²⁷⁴

III. Limitations on Means of Representation

Law school clinic programs may face interference not just with whom they may represent or what kinds of cases they may handle, but also limitations on how they may represent a client. These practice restrictions on what can be done for a client may be imposed as a condition of receiving public funds, imposed by the law school or university to avoid political or funding controversies, or voluntarily imposed by the law clinic as ways to avoid possible controversies, allocate scarce clinic resources, or advance educational goals. Regardless of the source or motivation, limitations on the means of representation a law clinic provides the client raise case and client selection ethical concerns.

A. Types and Effects of Practice Restrictions

Some law student practice rules prohibit law clinics from seeking statutory attorney’s fees.²⁷⁵ At least one state student practice rule prevents student attorneys from lobbying on behalf of clients before state or federal legislatures.²⁷⁶ Both of these court-imposed student practice rule restrictions may limit the legal representation that a clinic client would otherwise receive from an attorney.

Clinic funding sources may also impose restrictions. In the past, the Legal Services Corporation (LSC) provided grants for law clinic programs, which often served as the chief source of government-funded civil legal assistance in the state.²⁷⁷ Over time, local legal services offices separated from law schools.²⁷⁸ Consequently, at present, LSC does not provide any direct grants to law clinic programs.²⁷⁹ However, some law clinic programs work closely with local legal services offices and are even subgrantees of legal services offices that receive LSC funds.²⁸⁰

* * *

Interest on Lawyer Trust Account (IOLTA) programs, which exist in all states and the District of Columbia as a vehicle for generating moneys for civil legal services for the poor,²⁹¹ provide funding for many law school clinical programs.²⁹² A number of IOLTA programs restrict the legal services that grant recipients may provide eligible clients, with some mirroring the restrictions on LSC funding. For instance, many IOLTA programs prohibit legal assistance with respect to any fee-generating case.²⁹³ Others prohibit the use of IOLTA funds for lobbying to influence an executive or administrative order, regulation or legislation, although some programs, like the pre-1996 LSC restrictions, allow such activity if the lobbying is part of needed representation on a client’s particular case or claim.²⁹⁴ Some states forbid the use of IOLTA funds for class action lawsuits.²⁹⁵

State legislatures also have imposed practice restrictions on the activities of lawyers working for state-funded legal assistance programs.²⁹⁶ At least one state grant program restricting the remedies available in suits against a government entity to declaratory and injunctive relief;²⁹⁷ and prohibiting claims for actual or punitive damages.²⁹⁸ The extent to which law school clinical programs receive state funds from budget allocations or court fees and fines with such practice restrictions is not known, although at least two law clinic programs receive funds subject to such restrictions.²⁹⁹

Further practice restrictions may be self imposed by the law clinics or by law school or university administrators. For example, a number of clinics at state-funded law schools have decided to forgo requests for attorney’s fees when a state entity or official is an opposing party.³⁰⁰

In limiting the way an attorney can represent a client, the client may be losing an important advantage in a case. For example, where an attorney is prevented from seeking statutory attorney’s fees from the opposing party, the opposing party may be more inclined to drag out the lawsuit and less inclined to settle.³⁰¹ By increasing the costs of noncompliance with the law, the availability of attorney’s fees to prevailing parties also serves to deter future law breaking and may deter meritless lawsuits against clinic clients.³⁰² By not requesting fees, the attorney may also be giving up the opportunity to structure a settlement whereby the client would receive a higher monetary payment or greater equitable relief from the defendant in exchange for the attorney waiving some part of her statutory attorney’s fees.³⁰³

Prohibiting a lawyer from pursuing a claim as a class action makes it easier for the defendant to defeat the claim of the individual client and, because it avoids the additional class action costs to the defendant, results in less deterrence from future violations of the law.³⁰⁴ Moreover, the mere threat of a class action, rather than just an individual suit on behalf of the client, often results in swifter and more extensive relief for the individual client.³⁰⁵ The Supreme Court recognized that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.”³⁰⁶ For less politically and economically powerful groups, “association for litigation may be the most effective form of political association.”³⁰⁷

Harm may also result to the client by prohibiting a lawyer from lobbying. In some circumstances, lobbying a legislature or an executive branch agency for a change in the law or regulations may be the lawyer’s most effective, or only, way to address the client’s need.³⁰⁸

The result, therefore, of limitations on the legal methods that a law clinic attorney may employ is that the client may receive less representation, and less effective representation, than the client would receive from an attorney not encumbered by such practice restrictions.

B. Legality of Practice Limitations

The legality of restrictions on the manner in which a law school clinic can represent a client are in doubt after the Supreme Court’s recent decision in Legal Services Corporation v. Velazquez.³⁰⁹ In that case, lawyers employed by LSC grantees, along with their clients and others who provide financial assistance to LSC grantees, challenged the constitutionality of the Congressional prohibition on legal representation by recipients of LSC moneys if the representation involved an effort to amend or otherwise challenge an existing welfare law.³¹⁰

The Court found that the restriction violated the First Amendment, expressing four primary reasons. First, the Court found that because the LSC program was designed to facilitate the private speech of LSC clients, and not promote a governmental message, Congress could not engage in viewpoint-based funding decisions that prevent certain speech.³¹¹ Second, restricting an attorney’s ability to present certain arguments to a court and to advise fully the client distorts the legal system by altering the traditional role of attorneys.³¹² Third, by prohibiting certain advice or argumentation, the restriction had the effect of insulating welfare laws from judicial scrutiny, threatening severe impairment of the judicial function and creating a scheme inconsistent with accepted separation-of-powers principles.³¹³ Finally, because LSC clients are unlikely to find other counsel if the LSC lawyers refuse to represent the clients or withdraw from the cases once a constitutional issue arises, there is no alternative channel of expression of the advocacy Congress sought to restrict.³¹⁴

The Court noted that Congress was not required to fund attorneys for indigent clients and, when it did so, was not required to fund the whole range of legal representations.³¹⁵ However, where Congress does fund representation, it may not “define the scope of the litigation it funds to exclude certain vital theories and ideas” as a means to suppress ideas thought inimical to the government’s own interests.³¹⁶ Courts must be especially vigilant when “Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge.”³¹⁷

In response to the Court’s decision, the LSC announced that clients seeking relief from a welfare agency may be represented by a LSC grant recipient without regard to whether the relief involves an effort to amend or otherwise challenge existing welfare reform law.³¹⁸ Similar restrictions on welfare advocacy in IOLTA programs or state appropriations for civil legal assistance would likewise no longer be valid.³¹⁹

Due to the recency of the decision, the impact of Velazquez on other limitations on lawyer advocacy is unclear. Government funding for a law school clinic that is conditioned on agreeing not to pursue class actions, attorneys fees, or lobbying can be interpreted as restrictions that interfere with a clinic client’s ability to advance certain points of view, especially where the effect of the restrictions is to deter the clinic attorney from presenting all available legal arguments to the court or to insulate or deter allegedly illegal state activities from judicial review.³²⁰

On remand to the U.S. District Court, the plaintiffs in Velazquez have argued that, based on the Court’s decision, six additional restrictions on the activities of LSC grant recipients are unconstitutional, including the ban on participating in class actions, the ban on claiming, collecting or retaining statutory attorney’s fee awards, and the ban on notifying prospective clients of their legal rights and then offering representation.³²¹

Regarding the legality of prohibitions on the award of attorney’s fees to legal services providers, the Third Circuit held in Shadis v. Beal that a contractual provision prohibiting state-funded legal services programs from requesting or accepting attorney’s fees in civil rights suits against the state violated the public policy behind the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988.³²² The court noted that it was well settled that Congress intended legal services programs to receive fees under the Fees Awards Act and held that the state could not attempt, by conditioning receipt of state funds, to vitiate the civil rights enforcement policies embodied in the Act.³²³ It should be noted that the Shadis case pre-dates Congress’ 1996 prohibition on the receipt of attorney’s fees by LSC grantees and the Supreme Court’s decision in Evans v. Jeff D., which held that the Fees Awards Act did not prohibit individual settlements conditioned on the waiver of attorney’s fees.³²⁴ However, the Court in Evans v. Jeff D., suggested, but did not decide, that two fee waiver practices could violate the Fees Awards Act: when a defendant adopts a uniform policy of insisting on fee waivers as part of settlement offers and when the waiver is a vindictive effort to teach counsel that they should not bring such suits.³²⁵

C. Ethical Constraints on Practice Limitations

As a general rule, a law clinic client may agree to certain limitations, such as those outlined above, on methods of legal representation. However, as the Velazquez and Shadis cases indicate, some limitations imposed by the government on the services that a law clinic might provide a client may violate the First Amendment or Fees Awards Act. In addition, other practice restrictions, whether imposed by the law clinic or by those outside the clinic, may breach rules of legal ethics.

Model Rule 1.2 provides that “a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”³²⁶ Comments to the Model Rules explain that, with the client’s consent, a lawyer may limit the scope of services provided to the client but any such agreement does not exempt the lawyer from the duty to provide competent representation.³²⁷ Although decisions as to means are often viewed as resting with the lawyer, “[t]o the extent that decisions within the lawyer’s province may affect any substantial right or interest of the client, however, the lawyer may not proceed without the client’s consent.”³²⁸

The Model Code similarly provides that in certain areas not affecting the merits of the cause or substantially prejudicing the rights of a client, a lawyer may make decisions on her own.³²⁹ However, “the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client,” not for the lawyer.³³⁰

These rules of professional conduct indicate that a law clinic may limit the means of representation if the client is properly advised of the limitation and of its potential impact. An ABA ethics opinion on the ethical implications of the LSC’s practice restrictions suggests that all future clients be told of the limitations “even if the possibility of a statutory violation seems remote at best.”³³¹ However, commentators argue that an attorney need not advise a client of a restriction unless the attorney reasonably believes that the restriction could negatively impact the representation.³³²

Although an attorney would be in compliance with the rules of professional conduct if she chose not to advise a potential client of restrictions that were not reasonably likely to affect the potential client’s rights or interests,³³³ the most prudent course for law school clinics subject to practice restrictions is to include information on restrictions in every retainer agreement with a new law clinic client. Ethics aside, erring on the side of giving advance notice to all potential clients, while imposing some additional burdens on a clinical program, is both consistent with the widespread client-centered approach to clinic attorney-client relationships and helps avoid misunderstandings or ill will should the client later learn about the practice restrictions.³³⁴

Where consent to the practice limitations is sought, the clinic attorney should not only advise the client of precisely what methods of representation will not be provided and how those limits could negatively impact the client’s interests, but also of the fact that another attorney, not operating under the same limitations, might be able to obtain a quicker or more favorable result.³³⁵ Only by being informed of both the potential impact of the limits and of the fact that other lawyers do not operate under such restrictions can it be said that the client gave informed consent to proceed even with the potentially negative restrictions on representation.³³⁶

Some legal commentators question whether, even with a client’s informed consent, an attorney can agree to accept funding that includes limitations on the actions a lawyer might otherwise take in the exercise of the attorney’s independent professional judgment. Model Rule 1.8(f) prohibits an attorney from accepting compensation from a third party unless the client consents after consultation and there is no interference with the lawyer’s independent professional judgment or with the attorney-client relationship.³³⁷ Model Rule 5.4(c) provides that a lawyer shall not permit a person who employs or pays the lawyer to render legal services to another to direct or regulate the lawyer’s professional judgment in rendering such services.³³⁸ The Model Code contains similar prohibitions on interference by third-parties in the lawyer’s independent professional judgment.³³⁹

Under these rules of professional conduct, a limitation imposed by a third party on the means by which an attorney may represent a client is not ethical unless the client consents and the limitation does not interfere with the attorney’s independent professional judgment. Professor Stephen Ellmann explains:

When, however, the lawyer is told by the person who pays or employs her that she cannot use her independent professional judgment on a case she is now handling, then 5.4(c) has been breached. Moreover, I would argue that the constraint on the lawyer’s judgment need not be so intense as to make her work incompetent or a violation of Rule 1.1. The lawyer may be doing the best she can, and her best may be competent – but if she has been forbidden to consider possibilities that she otherwise might have chosen, in the exercise of her independent professional judgment, then Rule 5.4(c), read according to its terms, has been violated.³⁴⁰

The prohibitions on third-party influence, however, only apply towards a “client.” Thus, Ellmann concludes, “[a]lthough clients cannot consent to third-party limitations on their lawyers once the representation is underway, they apparently can agree to such limitations at the onset of the matter,” unless the limitations are not in accord with other rules of professional conduct.³⁴¹ Professor Stephen Gillers and Alan Houseman likewise argue that Model Rules 1.8(f) and 5.4(c) do not prevent a lawyer and client from agreeing at the onset to limit the objectives and means of the representation.³⁴² But, where limitations are imposed by third persons on the means by which a law clinic attorney may represent an existing client, thereby interfering with the lawyer’s independent professional judgment, the clinic attorney cannot agree to the limitations and must withdraw from the representation.³⁴³

ABA Formal Opinion 399 addressed the ethical obligations of lawyers when their funding is subject to the LSC’s practice restrictions. Regarding existing clients, the opinion concluded that the Model Rules preclude a lawyer from even asking for the client’s consent to a practice restriction “unless the lawyer reasonably believes that the representation will not be adversely affected.”³⁴⁴ This conclusion reflects the requirements of Model Rule 1.7(a)(2), which prevents a lawyer from representing a client if there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to a third person, unless the lawyer reasonably believes that she will be able to provide competent and diligent representation and the client gives informed consent.³⁴⁵ According to the ABA’s ethics committee, future clients may be represented under the practice restrictions, provided an agreement identifying the legal options that will not be pursued is signed with each new client.³⁴⁶

In some situations, the informed consent of even a future client to a limitation on the means of representation may not avoid an ethics violation by the attorney. Any agreement to limit the means of representation must comply with the rules of professional conduct and other law.³⁴⁷ Thus, “an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation.”³⁴⁸

For example, if competent representation would require the attorney to proceed with a class action on behalf of the client, an attorney cannot seek the client’s consent to representation that prohibits the attorney from pursuing that means.³⁴⁹ As for asking a prospective client to agree to forego the ability to obtain attorney’s fees, the Rules of Professional Conduct Committee for Washington state explained:

[A legal services attorney] may condition representation of the client on waiver or relinquishment of State or Federal claims for attorneys’ fees if, and only if, in the reasonable opinion of the attorney, such a waiver or relinquishment will not effectively preclude the lawyer from providing competent representation, the attorney has consulted with the client about the limitations of the representation and has obtained consent to that representation. If the opinion is to the contrary or consent is not obtained, [the attorney] must decline representation of the client.³⁵⁰

Although it may sometimes be difficult to predict the effect of failing to utilize certain tools of legal representation, a law clinic attorney operating under practice restrictions must, nonetheless, make a reasonable judgment as to whether that failure could result in services to the client that are less than competent representation.³⁵¹

A number of ABA and state ethics opinions also address the ethical obligations of a legal services attorney to potential new clients where there is a reasonable possibility that there may be a loss of funding to continue the program. These opinions generally hold that the attorney must provide potential new clients with sufficient information about the funding dilemma and its possible future effect on any representation for the client to make an informed decision about whether or not to use the office’s services.³⁵² Thus, law clinics with a well-founded concern that they may lose funding and have to shut down or restrict services likewise should inform potential new clients of this financing dilemma and how it could impact the client’s case, including the possibility that the clinic may have to withdraw from the representation.³⁵³

A final ethical consideration raised by practice restrictions is whether most clients or potential clients of a law clinic could in fact freely consent to restrictions on the legal services they will receive. The Court in Velazquez recognized that for clients of LSC grantees, often there will be no alternate source of legal representation.³⁵⁴ As Ellmann observed: “These clients, or would-be-clients, not only have little hope of finding other counsel, but they also frequently have acute legal needs. When the only possible source of aid in dealing with those needs comes complete with burdensome restrictions, consent to those restrictions hardly seems fully voluntary.”³⁵⁵

Nevertheless, as ABA ethics opinions have held, although the clients may have no alternative source of legal representation, rules of professional conduct do not prohibit legal aid offices or law school clinics from establishing limits on their services, subject to the constitutional and ethical restraints described above, even if the result is to leave potential clients without legal representation.³⁵⁶

IV. Conclusion

Identifying the ethical concerns raised by interference in law school clinic case and client selection and discussing the consequences of such actions are essential to discouraging such interference. Although any lawyer may potentially face interference in client or case selection and representation, interference is most often an issue for lawyers representing poor or unpopular clients or causes as other lawyers, opposing parties, or individuals seek to limit access to the courts, and thereby access to justice, for poor and disadvantaged people.³⁵⁷

Vindicating the rights of individuals and groups often depends upon the availability of a lawyer. Without an attorney, most individuals and groups are denied their right to be heard or are excluded from legal proceedings.³⁵⁸ Given the importance of ensuring that all persons have access to legal representation to protect their rights, and the importance that law school clinics play in providing legal representation to persons and causes who would otherwise go unrepresented and in modeling ethical behavior, it is crucial for law schools to resist interference. Indeed, all members of the legal profession must be sensitive to these issues and fulfill their ethical obligations both by refusing to interfere with other lawyers’ case and client representation decisions and by working to dissuade others from engaging in such actions.

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The AALS has stated: “[I]t is clear that clinical teachers . . . have a First Amendment right to select cases as their course materials for their clinics. . . . law faculty case and client selection decisions are protected by the First Amendment.” Submission of the Association of American Law Schools to the Supreme Court of the State of Louisiana Concerning the Review of the Supreme Court’s Student Practice Rule, reprinted in 4 Clinical L. Rev. 539, 557-58 (1998).