"

Interference Lessons

Robert R. Kuehn & Bridget M. McCormack
Lessons From Forty Years of Interference in Law School Clinics
24 Geo. J. Legal Ethics 59 (2011), https://ssrn.com/abstract=1756908

 

* * *

III. Lessons From Forty Years of Interference

Although incomplete, the examples of interference and resulting faculty perceptions of interference chronicled here are representative and provide a basis for some important lessons. First, it is interesting to note apparent changes in the motivation for such interference over time. The earliest attacks, as evidenced at the Universities of Arkansas, Connecticut, Iowa, and Mississippi, were based largely on objections to law clinics taking sides in what were viewed as political disputes. Not surprisingly, these early critics, usually state politicians, focused their complaints on clinic lawsuits against the state and its political subdivisions, rather than clinic actions against the federal government or private parties.

The typology suggests that fewer objections are heard today against clinics taking action against a state or political subdivision. It is not clear whether this trend can be explained by a culture shift as politicians, the bar, and university officials have come to accept the role of law clinics in disputes with the state, or whether clinic attorneys have retreated from many of the large, public policy disputes they were involved in the 1970s and 1980s, in part because some clinics have chosen to limit their involvement in controversial lawsuits against the state or have been forced to do so. The recent attack on the University of North Dakota law clinic demonstrates that if the underlying legal matter is politically controversial, the backlash against the school can still be significant.

Meanwhile, there has plainly been increased interference in law clinics driven by financial concerns since the 1970s. As Professor Peter Joy observed, money has driven most attacks on law clinics since the 1980s.117 The highly-publicized attacks on law clinics at Maryland, Oregon, Pittsburgh, and Tulane were fueled by companies and their sympathetic political allies who stood to lose significant profits if the clinic cases were successful. The latest effort to use the public records act as a weapon against the Rutgers clinics also has a substantial financial motive.

Yet the financial motive for attacking law clinics does not have to be the millions of dollars at stake in those clinic cases. The efforts at Denver and Iowa to get clinic attorneys to mollify their litigation positions illustrate that the loss of even a few thousand dollars by a client or law school alumnus can trigger an attack on a law school clinical program.

A second pattern that emerges from the examples chronicled herein is that state-funded law schools are the predominant target, especially of “external” interference from outside the university.118 This is likely due to the belief of some that it is inappropriate for one taxpayer-funded entity to sue another or for a publicly-funded entity to appear to take sides in a policy or legal dispute, especially if its position could be viewed as contrary to that of the state or its political subdivisions. As the legislator who introduced the recent bill in Louisiana to revoke state funding to any university whose law clinic brought suit against any government entity stated: “Philosophically, I’m opposed to taking taxpayer money and then turning around and suing taxpayers. If you’re going to take money from the taxpayers and the government, you ought not be able to sue the taxpayers and the government.”119

The control that governors and state legislators have over the budgets of state universities makes publicly-funded law schools particularly vulnerable to outside interference. Although the early, heavy-handed efforts of politicians in Arkansas, Colorado, and Mississippi to restrict clinic program representation were unsuccessful, more indirect efforts through the use of budget riders were imposed on Arizona State and Pittsburgh, yet failed in Louisiana and Maryland once the proposed budget restrictions were publicized.

Clearly, clinics at publicly-funded law schools must be alert to the potential for outside interference by state politicians.120 In fact, based on the survey responses, clinic attorneys have taken note. As the 2005 survey showed, clinic attorneys at public law schools were significantly more likely to worry about the reaction of administrators to their casework than attorneys at private law schools.121

Yet, the problems at Denver, St. Mary’s, and Tulane demonstrate that private law schools are vulnerable to interference too. In the case of Tulane, the inability to pressure the private university through the state legislative process led to a concerted effort of university donors and alumni to financially boycott Tulane and to enlist the Louisiana Supreme Court in their fight. The internal disputes at Denver and St. Mary’s illustrate that regardless of whether a law school is public or private, university or law school officials may be motivated to interfere if they believe that the clinic’s actions threaten the institution’s other important interests, particularly those that are financial in nature.

Third, although most interference in law clinics is from external sources, university and even law school officials can be a problem, even before any outside interference has taken place. The 2005 survey found that the faculty or administration had interfered in the casework of a significant number of clinic attorneys and that over one third were worried about the reaction of the faculty or administration to their casework. The 2008 survey found that the deans of 9% of respondents had “suggested” that the clinic attorney avoid a particular case, and over 10% of attorneys had avoided a case because they suspected the dean or clinical program director would prefer the faculty member not handle the matter.

In the Denver, Mississippi, and Pittsburgh law clinic examples, although driven by external pressure from alumni, politicians, or business interests, clinic attorneys had to battle with law school officials for the right to continue their cases without interference. In those situations, university officials gave in to external pressures and believed that sacrificing certain values of the legal profession and legal education were justified in order to prevent a perceived loss to the university. Thus, both the concern about and the reality of “internal” interference in law clinic case decisions are substantial.

In the cases of Denver and St. Mary’s, the internal interference appears to have been fueled, in part, by a disagreement over the proper role of law school officials in clinic case decisions. At these schools, the clinic attorneys and law school officials both believed they were acting within their appropriately-defined professional roles. Apparently, the role of law school officials in ongoing clinic cases at those schools was not spelled out in advance, resulting in actions not in accordance with an attorney’s professional responsibilities and the duties that an attorney owes a client. A clear statement of the limited role of the law school dean and clinical program director in an individual clinic attorney’s professional decisions could help avoid this internal interference, as one of us has argued elsewhere.122

A fourth observation is that appeals to principles of academic freedom have not often been effective or respected, either outside or within the university setting. Externally, those involved in the attacks on the Maryland, North Dakota, Pittsburgh, and Tulane law clinics did not agree that academic freedom gave a law professor or law school the right to pick and choose clients and cases for the good of the clinic’s approved educational mission. It is often argued by law clinic faculty that their choice of clients and cases is the equivalent of a non-clinic law professor’s protected choice of textbooks or other teaching materials and should be accorded the same academic freedom protections.123 However, this view has not seemed to resonate with those outside the legal academy. To many, academic freedom, if it is respected at all, simply does not extend beyond what one may say in the classroom or write in a professional publication.124

Even within law schools, administrators and faculty have not always understood the academic freedom concerns of law clinic attorneys. This has been especially true when that freedom to choose and manage cases conflicts with a dean or faculty’s concerns about the best interest of the law school. At these crossroads, even law school faculties may be unwilling to support the clinical professor. For example, some members of the Oregon law school faculty proposed that the best way to deal with attacks on its environmental law clinic was to shut down the clinic.125 The dean of the law school at Pittsburgh initially supported the idea of drafting a policy to avoid cases that might upset state legislators.126

Although those outside academe have often ignored appeals to academic freedom, courts and attorneys general reviewing restrictions on clinics have observed the important role of law clinics in contemporary legal education. In rejecting a claim that Rutgers law clinics could not represent parties before state boards, the New Jersey Supreme Court observed that “[c]linical training is one of the most significant developments in legal education” and refused to believe that the state legislature “ever would have intended to disable a clinical program at our State University.”127 Similarly, the Oregon attorney general wrote that “[t]he virtues of clinical legal education are now universally accepted, both in its service and pedagogical settings,” noting that law clinics had been endorsed not only by the president of the ABA but also by the Chief Justice of the United States Supreme Court.128 In turn, the attorney general concluded that the decision about what balance or mix of cases or projects a clinic should handle to educate students “is a policy choice left to the faculty.”129

Supreme courts in all fifty states and the District of Columbia, as well as most federal courts, have indicated their support for the role clinics play in legal education by adopting law student practice rules as a means to “encourage law schools to provide clinical instruction.”130 A recent Carnegie Foundation Report on legal education concluded “that the best available knowledge points toward context-based education [i.e., clinical education] as the most effective setting in which to develop professional knowledge and skills.”131 The ABA’s law school accreditation standards now mandate that each law school offer substantial opportunities for live-client or other real-life practice experiences.132 Legislators defending law clinics from legislative restrictions have taken note of the importance of law clinics in training future lawyers.133

A fifth observation is that arguments based on legal ethics and professional responsibility are appropriate to deflect outside interference and can be successful. The ethical responsibilities of all attorneys to provide legal representation to those who cannot afford assistance and to not deny representation to unpopular or controversial clients are relevant to many of the instances of outside interference since the purpose, or at the very least the practical effect, of that interference is to deny certain clients or causes any legal assistance.134 Attacks on these important professional responsibilities should motivate the legal profession and law faculties to recognize that clinic attorneys, in taking on such cases and clients, are simply fulfilling their ethical obligations. In the case of the attack on the Pittsburgh clinic, these important professional values, and the duty of the law school to teach and model these values, ultimately persuaded the university chancellor to abandon his efforts to force the clinic out of the law school. At North Dakota, the attorney general relied on these principles in determining that state law did not prohibit the actions of the law clinic in suing political subdivisions of the state. The ABA too has relied on these professional responsibilities in urging legislatures not to impose restrictions on clinics.135

Ethical prohibitions against interference in the professional relationship between an attorney and client and respect for the independent professional judgment of the clinic attorney also make interference in ongoing cases improper.136 The efforts to restrict the Connecticut clinic were successfully defeated after the ABA issued an ethics opinion holding that efforts of the law dean and faculty to control the independent judgment of the clinic lawyers were improper. At Columbia, Hofstra, Illinois, and Iowa law schools, school officials were able to deflect criticism of clinic activities by appealing to the uncontroversial principle that it is ethically improper for the dean to attempt to control the professional decisions of a clinic attorney in an ongoing case.

History shows, surprisingly, that many law school alumni have little respect for these ethical restrictions. Time after time, attorneys, not just government or business officials, have sought the law school dean’s intervention in ongoing clinic cases. Those attorneys sometimes defend their requests as simply an allegedly unselfish concern that clinic actions were harming the law school or that clinic attorneys were acting unprofessionally. However, their efforts appear to be motivated by the interests of that attorney or her client. Whatever the real reason, some attorneys are willing to use their own or their client’s special status as an alumnus or university donor to cross ethical lines. At best, a number of attorneys mistakenly view the dean as simply the senior partner in the law clinic firm who retains ultimate control over the litigation decisions of clinic attorneys, even where the dean is not an attorney of record or even licensed in the state.

This incorrect perception that law school officials can and should control the professional independence of clinic attorney creates a dilemma for law deans. If the dean seeks to exercise some control over whom the clinic may represent, then the dean can be perceived as answerable for unpopular clinic clients and cases. As the 2002 Political Interference Group survey found, there was no school at which the dean participated in law clinic case selection decisions at that time, although a very few schools have granted the dean a role in pre-approving potentially controversial clinic cases.137 Yet, even when the dean is not specifically given that role, the most recent survey of law clinic attorneys indicated that the dean of almost one in ten clinic attorneys has told or suggested to the attorney that she avoid a particular case.138

Unfortunately for deans, if the dean does appropriately steer clear of clinic case selection decisions, then the dean may end up having to defend clinic activities over which she has no control, and with which she may well disagree, to alumni, university officials, or legislators. In the end, law school administrators must understand that even though they may be able to exercise some general control as part of the design of the clinic over which clients the clinic may ultimately represent, once an attorney-client relationship is established with a clinic client, ethics rules do not allow the dean to direct or regulate the clinic lawyer’s professional judgment.139 Communicating this very limited role in plain terms to those outside the law school should help avoid some efforts of opposing attorneys and others to influence ongoing clinic cases.

Clinical program directors generally respect the professional independence of individual clinic attorneys and avoid involvement in ongoing cases. At the same time, however, clinical program directors may appropriately intervene in some complaints against clinic attorneys. Usually, a law clinic client enters into an attorney-client relationship with the clinic, not just with the particular clinic attorney who may be handling the case and supervising the students.140 Thus, where the clinic program director has supervisory authority over the attorneys in the clinical program, the program director does have a role to play in case decisions and should, in particular, be prepared to intervene in the case to mitigate or avoid any unethical conduct.141 Where the clinical program director is part of a team of lawyers in a particular clinic, that director has an appropriate role to play in clinic case decisions, regardless of whether there is a concern about unethical conduct.

Yet, in none of the publicized instances where clinical program directors or deans intervened in a clinic case was the clinic supervising attorney engaging in a violation of rules of professional conduct. More commonly, the clinic attorney’s judgment, rather than his ethical behavior, was subject to question. In those situations, notions of academic freedom and respect for the clinic attorney’s judgment regarding what is best for the clinic client and student dictate that the most appropriate way to avoid possible disputes over the handling of a particular case, and subsequent claims of improper interference, is for the clinical program to define the role of the clinic program director in ongoing cases in advance of any representation.142

Beyond instances of actual interference in ongoing clinic cases, clinic program directors and deans frequently do seek to influence the individual case selection decisions of clinic attorneys, with the survey showing that one-fifth of faculty have experienced case “suggestions” from school officials. The ABA ethics committee has warned that even broad guidelines that prohibit the acceptance of cases in order to avoid aligning the clinic against public officials or influential members of the community are improper.143 Again, while only a few schools explicitly limit their clinic cases to avoid possible controversy, a significant number act on an ad hoc basis to direct the clinic attorney’s case selection decisions.

The publicized instances of interference and survey data provide support for the belief that the status of a clinical teacher may be important in avoiding or successfully fending off interference, especially internal interference from law school and university administrators. Commentators have argued that clinical professors, even more so than non-clinic professors, need the enhanced job security that comes from tenure because they handle cases and clients that may be upsetting to some politicians, alumni, or influential members of the community.144 However, a majority of those who teach in law clinics do not enjoy the protections of tenure. A significant number are on contracts that may be terminated, often simply at the will of the dean, should their clinic case activities, or even comments on issues of law school governance, prove discomforting to law school or university administrators.145 The insecurity many clinic attorneys feel about their positions is enhanced by the fact that law clinics can be expensive to operate and are viewed by some non-clinic faculty as less academically legitimate than traditional law school courses.146 As shown by the 2008 survey, clinical faculty on short-term contracts are far less likely to express dissenting views within their institutions than their colleagues with long-term contracts and tenure, and those on long-term contracts and clinical tenure are less likely than those with the traditional tenure status bestowed on non-clinical “classroom” professors.

The review of publicized cases indicates that untenured clinical professors were the primary target of interference from university or law school administrators. Internal interference with clinic decisions at Connecticut, Denver, Mississippi, and Pittsburgh was directed toward untenured clinic attorneys in the first few years of their teaching careers and often serving at the will of the law school dean.147 This was likely not a coincidence. Undoubtedly, the strength of the law school and university’s commitment to academic freedom and to the ideals of the legal profession also play a significant role in the extent to which law school and university officials defend a clinic attorney from outside interference. It also is the case that tenured faculty, who have a more powerful voice on governance issues within their institutions, can be more effective in influencing their administrations to resolutely resist pressure than clinic attorneys appointed with less professional status.
        In addition, the lower status of clinic attorneys at many law schools may lead to a lack of respect for or appreciation of the attorney’s actions by the law faculty or dean or may simply create a certain alienation or distance that contributes to an inability of the faculty or dean to understand fully and defend the clinic’s actions. This combination of vulnerable employment status and weaker faculty support makes clinic attorneys generally, but untenured ones in particular, more vulnerable to internal interference and lack of institutional support when a clinic comes under external attack.

Finally, the survey data underscore the obvious point that status for clinic attorneys also is important to ensure that the voices of those who teach in law clinics are heard on law school governance issues. The data demonstrate that the current ABA law school accreditation norm of separate but relatively equal status between law clinic and non-clinical faculty, or, in the parlance of the ABA, separate but “reasonably similar,” is not equal and is not working.148  Even with the protections of ABA Accreditation Standard 405(c), clinic attorneys on long-term contracts and clinical tenure do not participate in governance discussions to the same degree as their tenured colleagues by a noticeable margin. Their “lesser” status makes them much less able to speak up or dissent about law school governance than comparable faculty with tenure.  These results argue not only for retaining Accreditation Standard 405(c), since the survey shows that it does result in greater ability to participate than those who do not have this level of security of position, but also for strengthening the language or better enforcing the provisions regarding governance to make sure that the ABA’s goal of “reasonably similar” participation in law school governance by clinic attorneys is actually realized, not just stated in an accreditation interpretation.149

*  *  *

———————————————
Abridged Endnotes (numbering in original)

117. “Since the late 1980s or early ’90s, I can’t think of any instances of clinics coming under fire that, when analyzed, you don’t find money behind it in some fashion.” Terry Carter, Law Clinics Face Critics: Business Interests Fire Up Challenges to Schools’ Environmental Law Projects, A.B.A. J., July 2002, at 24.
118. Although sixty percent of ABA accredited law schools are private, only five of the twenty different law schools with publicized instances of clinic interference identified in Appendix 1 are private schools.
119. Karen Sloan, Battleground Over Law School Clinics Moves to Louisiana, Nat’l L.J., May 3, 2010.
120. See Frank Askin, A Law School Where Students Don’t Just Learn the Law; They HelpMake the Law, 51 Rutgers L. Rev. 855, 857 (1999) (cautioning public law schools about the experience of the Tulane environmental law clinic); see also Jerome B. Falk, Jr. & Stuart R. Pollak, Political Interference with Publicly Funded Lawyers: The CRLA Controversy and the Future of Legal Services, 24 Hastings L.J. 599, 600 (1972-73) (observing that the controversy over the actions of a California legal services office demonstrates “[t]he vulnerability of publicly funded legal services programs to political interference – increasing in proportion to the effectiveness of the lawyers’ work”).
121. The 2008 survey, however, did not find any statistically significant difference in the prevalence of actual interference from the dean or clinical program director between public and private law schools. Id.
122. See Robert R. Kuehn & Peter A. Joy, Lawyering in the Academy: The Intersection of Academic Freedom and Professional Responsibility, 59 J. Legal Educ. 97 (2009) (noting the appropriate roles for law school faculty and administrators in decisions about law clinic cases).
123. See Report of the Committee on the Future of the In-House Clinic, 42 J. Legal Educ. 508, 554 (1992).
124. Robert R. Kuehn & Peter A. Joy, “Kneecapping” Academic Freedom, 96 Academe 8 (Nov.-Dec. 2010) (arguing that “academic freedom is not well respected or understood when student learning bumps up against real world disputes”).
125. See Alan Pittman, UO Environmental Law Clinic Funding Axed, What’s Happening (Eugene, Or.), Sept. 2, 1993, at 2.
126. Bruce Steele, Controversy Threatens Funding of Pitt Environmental Law Clinic, U. Times (Pittsburgh, Pa.), Oct. 25, 2001, at 1.
127. In re Determination of Executive Comm’n on Ethical Standards Re: Appearance of Rutgers Attorneys Before the Council on Affordable Hous. on Behalf of the Civic League, 561 A.2d 542, 543 (N.J. 1989); see also Transcript of Motion at 5, 11, N.J. Dep’t of Envtl. Prot. v. City of Bayonne, No. C-118-97 (N.J. Super. Ct. Ch. Div. June 11, 1999) (noting the importance of clinical legal education in opinion and refusing to prohibit law clinics at Rutgers from providing free legal representation).
128. Letter from Donald C. Arnold, Chief Counsel, Or. Dep’t of Justice, to William E. Davis, Chancellor, Or. State Sys. of Higher Educ., and Max Simpson, Or. State Representative (July 11, 1983).
129. Id..
130. Proposed Model Rule Relative to Legal Assistance by Law Students, 94 Rep. A.B.A. 290 (1969).
131. William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 125 (2007).
132. ABA, Standards and Rules of Procedure for Approval of Law Schools Std. 302(b)(1) (2009-10) [hereinafter ABA Standards].
133. See, e.g., Brian Witte, Md House Democrats Reject $830 Million in New Cuts, Associated Press, Apr. 2, 2010.
134. See Model Rules of Prof’l Conduct R. 1.2(b) & cmt. 5 [hereinafter Model Rules]; id., at R. 6.1.
135. Former ABA President Carolyn Lamm stated: “I call on lawyers in every state to remember their professional obligation to uphold the independence of their profession, and speak out against intimidation whenever they see it. Just as lawyers who represent unpopular clients are fulfilling the responsibilities of all lawyers, so too are law students who assist clients in clinical legal programs.” ABA, Statement of ABA President Lamm Re: Proposed Legislation Affecting Funding for University of Maryland School of Law (Apr. 1, 2010).
136. See Model Rules R. 1.8(f); Model Rules R. 5.4(c); see also Restatement (Third) of Law Governing Lawyers § 134 (2000).
137. Political Interference Grp. AALS Section on Clinical Legal Educ., Summary of Survey About Law Clinic Intake Guidelines and Decisionmaking (2002).
138. * * *
139. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 334 (1974) [hereinafter ABA Formal Op 334] (holding that “there should be no interference with the lawyer-client relationship by the directors of a legal aid society after a case has been assigned to a staff lawyer”); ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1208 (1972) [hereinafter ABA Informal Op 1208] (holding that the governing board of a law clinic, which includes the law school faculty, dean, university administration and board of trustees, “must be particularly careful not to interfere with the handling of a particular matter once it is accepted”).
140. See ABA Formal Op. 334 (“It must be recognized that an indigent person who seeks assistance from a legal services office has a lawyer-client relationship with its staff of lawyers which is the same as any other client who retains a law firm to represent him. It is the firm, not the individual lawyer, who is retained.”).
141. See Model Rules R. 5.1(c); Restatement, supra note 136, at § 11(3)(b).
142. See Kuehn & Joy, supra note 122, at 121-22; see generally Executive Committee, AALS, Statement of the Association of American Law Schools in Support of Academic Freedom for Clinical Faculty (Jan. 3, 2001) (“The Association reaffirms that academic freedom is critical to achieving the objectives of clinical legal education and that the principle of academic freedom applies equally to clinical law faculty.”).
143. ABA Informal Op. 1208. A 1982 report on political interference in law clinics by the AALS Section on Clinical Legal Education recommended that the ABA adopt a law school accreditation standard mirroring the ABA’s ethics opinion: “Law schools should seek to avoid establishing guidelines that prohibit acceptance of controversial clients or cases or that prohibit acceptance of cases aligning the clinical program against public officials, government agencies or influential members of the community.” Comm. on Political Interference, supra note 123, at 13, reprinted in Elizabeth M. Schneider, Political Interference in Law School Clinical Programs: Reflections on Outside Interference and Academic Freedom, 11 J.C. & U.L. 179, 197 n.88. The ABA has not adopted the proposed standard.
144. See, e.g., James J. Fishman, Tenure: Endangered or Evolutionary Species, 38 Akron L. Rev. 771, 786-87 (2005); Schneider, supra note 143, at 180-82.
145. * * *
146. See Schneider, supra note 143, at 181-82, 205; Sullivan et al., supra note 131, at 88, 198.
147. The new environmental law clinic director at Pittsburgh explained how he felt when his dean told him it was “incredibly stupid” for the clinic to take a controversial case: “I think it would be hard not to feel threatened by the dean of a law school telling you that when you’re on a one-year contract that he renews.” Tom Stabile, Conflict Envelops Pitt Clinic, Nat’l Jurist, Jan. 2002, at 15.
148. See ABA Standards, at Std. 405(c) (2009-10) (stating that a “law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure”).
149. Id. at Interpretation 405-08 (“A law school shall afford to full-time clinical faculty members participation in faculty meetings, committees, and other aspects of law school governance in a manner reasonably similar to other full-time faculty members.”).

License

An Anthology of Interference in Law School Clinics Copyright © by Peter A. Joy & Robert R. Kuehn. All Rights Reserved.

Share This Book