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A Typology of Interference

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

 

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I. A Typology of Interference

Efforts to interfere in law clinic operations can be generally classified by the types of limitations attempted: case and client selection restrictions, funding restrictions, and practice restrictions. The abbreviated discussion below illustrates each of these categories of interference over the past four decades, with a longer history of publicized efforts to interfere in clinical education cataloged in [a table in the next chapter].

Case and Client Selection Restrictions

The willingness of law clinics to represent unpopular clients, for whom clinics often are the only available legal assistance, has led to numerous attempts by public officials to impose case and client selection restrictions on clinics. The first reported instance occurred at the University of Mississippi School of Law in 1968 where two untenured law professors, with the assistance of students in a new clinical program, worked part-time with the local legal services program on a lawsuit to desegregate public schools.5 Under pressure from the legislature and state bar and at the direction of the University’s chancellor, the dean of the law school, relying on a policy that permitted outside employment provided “it does not bring the employee into antagonism with his colleagues, community, or the State of Mississippi,” prohibited the clinic professors from working with the program.6

The professors filed suit in federal court, alleging they had been denied equal protection of the law by being singled out for restrictions different from and more onerous than those imposed upon other professors who were not working with students on desegregation lawsuits.7 In Trister v. University of Mississippi, the United States Court of Appeals held that the University had unlawfully discriminated against the professors as “the only reason for making a decision adverse to [the professors] was that they wished to continue to represent clients who tended to be unpopular. This is a distinction that can not [sic] be constitutionally upheld.”8

The American Association of Law Schools (AALS) and the American Association of University Professors (AAUP) also responded with great effect. The AALS Committee on Academic Freedom and Tenure found that the violations of academic freedom were so serious that, in the absence of corrective action, the law school would be expelled from membership in the AALS—apparently the only reported time the AALS has found that a member school violated the academic freedom rights of a law clinic teacher.9 Similarly, an investigating committee of the AAUP found it was likely that the University’s action violated the professors’ academic freedom since the terminations occurred because the professors were engaged in civil rights activities.10 In response, the University rescinded its policy and offered re-employment to the professors.11

A few years later, the law clinic at the University of Connecticut came under attack when it helped defend an antiwar protester, prompting complaints from local lawyers and a directive from the governor to rein in the clinic.12 In response, the dean proposed that clinic professors be required to seek the approval of the dean or a faculty committee before accepting a case against a government official.13 This effort resulted in American Bar Association (ABA) Informal Ethics Opinion 1208, which held that requiring clinic lawyers to seek the prior approval of the dean or a faculty committee “makes it likely that the independent judgment of the five clinic lawyers and their loyalty to their clients will be impaired. Thus the proposed limitations . . . violate the professional ethics and responsibilities of the dean and of the lawyer-directors of the clinic.”14 Instead, the governing body of a law clinic (the law school faculty, dean, university administration, and university board of trustees) “should seek to avoid establishing guidelines (even though they state only broad policies . . .) that prohibit acceptance of controversial clients and cases or that prohibit acceptance of cases aligning the legal aid clinic against public officials, governmental agencies or influential members of the community.”15 After the opinion was issued, the dean abandoned the oversight process.16

A number of state legislatures have also sought to restrict clinic representation. For example, in response to a civil rights suit brought by a law professor, a 1975 Arkansas appropriations bill made it unlawful for professors at the University of Arkansas School of Law “to handle or assist in the handling of any law suit in any of the courts of this State or of the federal courts.”17 The Arkansas Supreme Court held that the prohibition violated the Equal Protection Clause, as there was no reasonable basis for applying the restriction to some but not all faculty classifications or for restricting faculty at only one of the state’s two law schools.18

A similar bill introduced in Colorado in 1981 prohibited law professors at the University of Colorado from assisting in litigation against a governmental unit or political subdivision.19 The House of Representatives passed the bill but the Senate, after reporting it out of committee, postponed the bill indefinitely.20

A 1982 bill in Idaho sought to prohibit public universities from offering any course or clinical program in which a student assists or participates in suits or litigation against the state or its political subdivisions, unless the assistance is rendered on behalf of the state.21 The legislature reportedly acted in response to a lawsuit filed by the clinic at the University of Idaho against the state department of transportation challenging a plan to expand a scenic highway.22 The bill passed the House, but was defeated in a Senate committee.23

At the University of Tennessee, a clinic lawsuit against the state on behalf of prison inmates prompted the University’s Board of Trustees to mandate that “no suits of significance shall be brought by the UT Legal Clinic on behalf of any litigant against the State of Tennessee, its agencies or instrumentalities or any state official acting in his official capacity.”24 As a result, the clinic does not handle cases against the state where attorney’s fees would likely be available.25

The most dramatic restriction on a clinical program’s cases arose in Louisiana. When the Louisiana governor heard, in 1997, that Tulane Law School’s environmental law clinic was raising environmental justice concerns over the proposed siting of a petrochemical plant, he unsuccessfully tried to get the president of Tulane University to intervene.26 After Tulane refused to back down, three business groups, at the urging of the governor, sent letters to the elected members of the state supreme court complaining that the clinic’s representation had harmed their economic interests and asking the court to restrict the ability of the clinic to provide free legal assistance.27 In response, the Louisiana Supreme Court issued unprecedented restrictions to the state’s student practice rule that effectively prevent clinic students from representing community organizations, limit individual representation to persons living near the federal poverty level, and prohibit contact with prospective clients.28

A federal lawsuit challenging the restrictions was dismissed by the district court without allowing any discovery, although the court acknowledged that political pressure may well have played a role in the new restrictions.29 The Court of Appeals affirmed, holding that because the rule only prevented law students from assisting certain residents and did not restrict what licensed clinic attorneys may do or whom they may represent, the rule did not prohibit or punish speech.30 The court also refused to find viewpoint discrimination in “an across-the-board, wholly prospective and viewpoint neutral general rule,” regardless of the motivation or effect.31 After the action of the Louisiana Supreme Court, critics of the Tulane clinic unsuccessfully sought to get the U.S. Court of Appeals for the Fifth Circuit and a U.S. District Court in Louisiana to impose similar restrictions on the types of clients that law clinics may represent.32

Funding Restrictions

As direct attempts to prohibit law clinics from handling specific types of cases have been largely unsuccessful, legislators and university donors instead have sought to interfere in clinic lawyering by threatening or actually withholding funding from the university or law school.

For example, in 1981, Iowa legislators filed a bill prohibiting the use of funds available for state educational institutions for legal assistance to any person bringing a civil action against the state or a political subdivision or for programs providing civil legal assistance to state correctional system inmates.33 The proposed legislation, which was filed in retaliation for the University of Iowa law clinic’s successful representation of prisoners in lawsuits against the state, was defeated.34

In 1987, the governor of Maryland conditioned receipt of funding for civil legal services providers, such as the law clinics at the University of Maryland, on an agreement not to sue state agencies.35 The governor dropped the restriction in response to public criticism but did insist on a requirement that recipients provide the state with an opportunity to resolve any disagreement prior to the filing of a lawsuit.36

In 2010, in reaction to a lawsuit filed by the environmental law clinic at the University of Maryland against one of the state’s largest employers, the Maryland legislature threatened to withhold $750,000 in funding for the University until it provided details on law clinic clients, cases, expenditures, and funding.37 After significant pressure from legal educators and the ABA, the legislature backed down, removing the funding restriction and narrowing the scope of the required report to non-privileged information about filed environmental law clinic cases.38

In Arizona, legislators repeatedly attacked funding for Arizona State University’s law clinics after a clinic lawsuit over lack of access to prison law libraries led to a major victory and a sizeable attorney’s fee award.39 Resentment over the litigation prompted a proposed rider in the 1995 state budget that would have dropped all funding for the school’s clinics, but the rider was eventually limited to prohibit the expenditure of state funds for litigation on behalf of prisoners.40

An environmental law clinic at the University of Pittsburgh encountered similar attacks shortly after it opened in 2001. Upset over the law school’s involvement in an earlier lawsuit that had stopped a timber sale, state legislators inserted language in the state’s budget that prohibited the use of any taxpayer funds to support the new clinic. The provision was not expected to harm the clinic since it was funded solely from private sources.41 A few months later, however, the clinic came under new attacks from business interests and politicians for representing citizens challenging a major highway project. In response to this pressure, the University decided to interpret the budget provision to require the clinic to pay the University’s sizeable overhead costs, something that had never been charged to any other University unit and an amount that would bankrupt the clinic.42 In the midst of the controversy, the University Chancellor, a former dean of the law school, prohibited the clinic from seeking additional private funding until it agreed not to take on controversial cases and proposed that the clinic reorganize as a public interest law firm and move off campus.43 After criticism by the faculty senate, however, the University changed course and announced that the clinic would stay in the law school and be funded privately with the University’s help.44

On a number of occasions, clinic opponents have argued that it is illegal for clinics to use taxpayer funds to represent private parties or to sue public entities. Beginning in the early 1980s, timber interests and their attorneys attacked the University of Oregon’s environmental law clinic and were successful in getting the University president to sever the clinic’s two-year joint operating agreement with the National Wildlife Federation on the rationale that the Federation’s financial sponsorship of the clinic violated the University’s policy of institutional neutrality.45

Even with this action, criticism continued, including a request by a legislator that the state attorney general determine whether the involvement of the clinic on behalf of private parties constituted an improper use of state funds.46 The Oregon attorney general issued an opinion holding that “it is well established that a substantial public benefit [such as clinical legal education] is not defeated just because a private purpose also is served.”47 The ABA’s Council of the Section of Legal Education and Admissions to the Bar also released a statement opining that attempts to interfere in law school clinical programs “have an adverse impact on the quality of the educational mission of affected law schools and jeopardize principles of law school self-governance, academic freedom, and ethical independence under the ABA Code of Professional Responsibility.”48

These opinions, and the report of a University committee that the clinic did not violate the University’s policy of institutional neutrality, did not appease critics, however.49 Facing a legislative threat to defund the entire law school over the environmental law clinic’s activities, the clinic’s directors decided to move its operations off campus and to reorganize in 1993 as a nonprofit public interest law firm.50

When the law clinic at the University of North Dakota filed suit challenging a Ten Commandments monument outside city hall, a state legislator requested an opinion from the state’s attorney general on whether it was legal to expend taxpayer funds to sue another state-supported entity.51 As in the opinion issued earlier in Oregon, the North Dakota Attorney General explained that the clinic operated like a law firm representing individual plaintiffs, not the University, and that nothing in state law prohibited law students or faculty from representing individuals with claims against the state or its political subdivisions.52 Similarly, opponents in a case brought by the environmental law clinic at Rutgers School of Law–Newark tried to get the clinic dismissed by arguing that its free representation of a nonprofit organization constituted an illegal gift of money by the state to a private entity.53 The court rejected the motion, noting that the clinic served two valid public purposes: to assist in enforcing environmental laws, and to provide hands-on training in the practice of law.54

Funding pressure also has been a common tactic of critics of the Tulane Environmental Law Clinic. The first attack on Tulane’s clinic occurred in 1993 after the clinic’s director made a statement critical of the governor’s plan to reduce the state tax on hazardous waste disposal. The governor quickly called the president of Tulane University and demanded that he “shut [the director] up or get rid of him” or else Tulane would lose state financial support for a new downtown arena for the University’s basketball team, state financial assistance to Louisiana students attending Tulane, and the ability of Tulane medical students to gain access to state hospitals.55 The University’s president refused to get involved.56

Tulane’s president also refused to get involved when some petrochemical companies decided to withhold donations to the University and not hire any Tulane graduates until it closed the environmental law clinic.57 Nor did the University get involved when a later governor urged business leaders to withhold their financial support of the University and threatened to revoke Tulane University’s tax-exempt status over the clinic’s activities.58

Most recently, the petrochemical industry sponsored legislation in Louisiana that would require a university to forfeit all state funding for that fiscal year if any of its law clinics brought or defended a lawsuit against a government agency, represented any person seeking monetary damages, or raised state constitutional claims (subject to limited exceptions).59 The bill was part of an eleven-point Louisiana Chemical Association plan to financially “kneecap” Tulane University into dropping its environmental law clinic. The plan included urging association members to cease donations to the University, curtailing recruitment of Tulane University graduates, contacting Tulane donors to urge them to cease their support, and enlisting the help of the state’s Congressional delegation.60 The bill was defeated in committee, after criticism that it would harm legal education and cut off access to environmental representation at the very time the state was suffering the consequences of BP’s oil spill in the Gulf of Mexico.61

Many other unsuccessful efforts by alumni, donors, and politicians to intervene in law clinic matters have come with explicit or implicit threats to withhold funding. For example, in the early 1980s, an alumnus called the dean of Columbia University School of Law to complain about a lawsuit filed against his company by the school’s housing discrimination clinic.62 The dean responded that there was nothing he could or would do, explaining that clinic litigation decisions were made by the faculty running the clinic. When the clinic at Washburn University School of Law filed a class action challenging a City of Topeka towing ordinance, a city official called the University to complain.63 In response, the law school’s dean explained that it would be unethical for the clinic not to sue the city just because it was a governmental entity and a funder of the law school. An alumnus of the Northwestern University School of Law threatened that he would hold the University accountable for damages unless it made the law clinic withdraw from representing the attorney’s former client in a lawsuit against that attorney.64 While a 1996 age discrimination lawsuit brought by the law clinic at the University of Iowa was awaiting a decision by the jury, counsel for the opposing party called the University’s general counsel and threatened to withdraw the company’s funding to the engineering department if the case could not be resolved before the jury’s verdict.65 The general counsel said he would not do anything other than simply inquire into the status of the case, which the clinic subsequently lost and which did result in the company’s termination of funding to the engineering department. The dean of the University of Illinois School of Law also refused to get involved in a 1997 clinic case after a law school alumnus and member of the school’s advisory board called to complain about a class action filed by the clinic against the state agency represented by the alumnus.66 Likewise, the president of the University of Michigan refused to intervene in a law clinic class action against the Michigan Department of Corrections after the chair of the Michigan Senate’s appropriations subcommittee on higher education sent an e-mail questioning the appropriateness of the clinic’s lawsuit against the state and warning that such suits could interfere with the University’s legislative funding.67 Recently, a Hofstra University trustee and $1 million donor complained when the clinic sued his company over housing discrimination claims.68 The University’s president rebuffed the donor, stating that the clinic must exercise independent judgment in the case without considering the gift or any threat to withdraw it.69

Practice Restrictions

The third type of interference seeks to control or influence the decisions or conduct of law clinic lawyers while they are representing a client. The intended effect of such restrictions is to burden clinic lawyers with obstacles that are not faced by opposing attorneys, in order to render clinic representation less effective or to drive the clinic to abandon the client or case.

A stark example of this approach occurred after the law clinic at the University of Denver received a directed verdict in a housing discrimination case and was authorized to submit an attorney fee petition. The opposing attorneys, both graduates of the law school, complained to the dean about the clinic’s handling of the case and were given a private meeting with the clinical program’s co-directors without the knowledge of the supervising clinic attorneys on the case.70 Based on concerns raised at the meeting and on an alleged clinical program attorney’s fee policy, the program co-directors directed the clinic attorneys not to request fees.71 The supervising attorney responded that the client had a right to and had been promised the fees and that no policy against fee petitions had ever been communicated to the attorney.72 The attorney asserted that he had a professional responsibility to the client and no choice but to file the fee petition, which he did.73 The program co-directors subsequently wrote to the clinic attorney that his filing of the petition over their objections would have “clear consequences.”74 It did. The attorney had to leave the school at the end of the year when it failed to renew his contract.75

In Michigan, a prosecutor listed law students in the University of Michigan’s Innocence Clinic as prosecution witnesses in an attempt to force the students to testify against their client.76 The prosecutor offered no justification for disregarding rules of professional conduct that generally bar a prosecutor from forcing a lawyer to testify about a client, other than to claim that the student attorneys had interviewed a person who might exonerate the defendant.77 The prosecutor ultimately dropped the case before the clinic’s motion to strike the students from the prosecution’s witness list could be heard.78

Currently, a real estate development company, frustrated by its inability to gain access to internal clinic documents about a clinic case involving the company through normal discovery means, is seeking to force the Rutgers School of Law–Newark law clinics to comply with a request under the state’s Open Public Records Act.79 The trial court rejected that effort, holding that the law school was outside the scope of the act and that clinic clients should not be disadvantaged by the nature of the entity that represents them.80 An appellate court reversed the trial court [but the New Jersey Supreme Court upheld the trial court’s exemption, holding that record relating to cases at public law school clinics are not subject to the act, including requests for information about the development and management of litigation.]81

Another approach to limiting clinic attorneys aims to impose special ethics restrictions on clinic attorneys. In 1986, Rutgers School of Law–Newark confronted claims by clinic opponents that its representation of clients before state agencies violated a state conflict law which provides that no “state employee” may represent, appear for, or negotiate on behalf of any person or party other than the state in connection with any matter pending before a state agency.82 The New Jersey Supreme Court held that applying the phrase “state employee” to clinic attorneys when the representation of a client brings them before a state administrative agency would misperceive the history of the conflict law and would violate its legislative purpose.83

After the unsuccessful effort in 1993 by the governor of Louisiana to pressure Tulane University’s president to fire its environmental law clinic director, the attorney who ran the governor’s department of environmental quality filed a complaint with the Louisiana Supreme Court alleging that the clinic had engaged in “political conduct” and overstepped its authority under the state’s student practice rule.84 The court quickly rejected the complaint, finding no basis to get involved.85 The Oregon State Bar likewise dismissed an ethics complaint filed against two Oregon Law School environmental law clinic attorneys by an opposing attorney who claimed the clinic attorneys had selectively presented scientific studies to a judge and failed to report contradictory information.86

A unique effort to control the decision making of clinic attorneys occurred at the University of North Dakota School of Law. In 2002, its clinic filed suit on behalf of residents challenging a government display of a Ten Commandments monument.87 A vocal critic of the law clinic then wrote a letter to the clinic stating that the “pagan religious” statute of the Greek goddess Themis on top of a courthouse offended him as a Christian and requesting that the clinic develop a lawsuit on the same basis as the clinic’s suit challenging the Ten Commandments monument.88 The clinic declined the request for assistance, explaining that it was not taking any new cases at the time and that the critic’s persistent and antagonistic actions against the clinic would “adversely affect our ability to establish an effective client-attorney relationship with you and would consequently impair our ability to provide legal representation to you.”89

The critic then filed a pro se complaint in federal court against the clinic director, alleging that her refusal to provide legal representation violated his constitutional rights to free speech and equal protection.90 The district court granted judgment on the pleadings for the defendant, holding that an attorney should not be compelled to represent a client where the attorney believes it would violate the attorney’s ethical obligations.91 The U.S. Court of Appeals, however, reversed the dismissal on the pleadings, explaining that because the plaintiff alleged that the basis for denying representation was pretextual, he should be given an opportunity to prove his claim against the clinic director.92

A final example of interference with clinic lawyering involves St. Mary’s University. In 2002, its human rights clinic filed a complaint with the U.S. Department of Labor against the Mexican government alleging violations of the North American Free Trade Act, after first following what the clinic director believed was the school’s pre-filing notification policy and receiving the approval of the clinical program director.93 A few days later, the clinic director learned from one of the clients that the school’s dean and associate dean had called to tell the client that the school was immediately withdrawing from the representation.94 The dean’s letter to the Department of Labor stated that the clinic would not be participating in the case and that the clinic director, in her individual capacity and not on behalf of the school, would represent the complainants, something which had never been discussed with the director.95 At the same time, the school’s associate dean came to the clinic’s file room and began looking through the case files, over the objection of the clinic director.96 The dean later stated that he withdrew the clinic from the case without discussing it in advance with the client or clinic director because the University had not authorized the filing and for budgetary concerns.97

 

II. The Effects of Interference on Law Clinic Attorneys

Although extensive, the dozens of publicized instances of interference categorized above provide an incomplete record. Similar instances are often handled quietly by schools and go unreported. The Executive Director of the AALS recently opined, drawing on her many years as a law school dean, that for each formal reported case of interference in a clinical program, “there are many dozens of criticisms voiced less formally.”98 Given the number of law schools that are known to have been subject to interference of some kind, it is likely that there are few law schools where the dean has not, at some point, been called on the telephone or approached with a complaint about a law clinic’s actions and a request, sometimes implicit, that the dean intervene.

And even in circumstances where there has been significant interference in law clinic activities, clinic lawyers may be afraid to expose those actions for fear of antagonizing legislators, alumni, or university officials. In addition, self-restraint by clinic attorneys with regard to their case activities may skew the degree to which outside interference occurs or influences law clinic operations. That is, for fear of encountering the very same interference documented here, clinic attorneys may impose their own restrictions on whom they represent or sue and on whether they seek attorneys’ fees or other types of legal relief.99  As one clinic attorney explained: “There is no question that we worry constantly that our willingness to represent unpopular clients and our success in suing governmental bodies will cost us our chances to provide high-quality clinical training to our students.”100 Another noted that she was careful to avoid high-profile cases.101 Even attacks that fail can intimidate clinic attorneys and law school officials. The sponsor of the recent legislative effort to withhold funds from the University of Maryland boasted that, even in defeat, the University had gotten the message that “we’ll be watching” if its clinics take legal action against other interests favored by legislators.102

In an effort to document the degree to which law clinic attorneys are either receiving or perceiving pressure to avoid taking on controversial matters or requesting certain relief, we conducted two surveys of clinical faculty on this topic. The survey results illustrate the effects of interference on clinic attorneys.

December 2005 Survey

By and large, law school administrators do not participate in the case selection decisions of their clinic attorneys. In 2002, the Political Interference Group of the AALS Section on Clinical Legal Education surveyed clinical law programs to find out how law clinics made case selection decisions. The survey found that only clinic attorneys and students participate in case selection decisions at 87% of the schools; the other 13% use advisory boards, but final decisions are made by the clinic’s attorneys and students. However, at least two schools, in reaction to attacks on Tulane’s environmental law clinic, have given the dean a role in pre-approving potentially controversial clinic cases.

The simple survey conducted by the Political Interference Group failed to provide information on the effects of interference episodes on clinic attorney case decisions. So, as preparation for the 2006 AALS annual meeting on “Practicing Law in the Academy, Clinics, Clinical Faculty and the Principles of Academic Freedom,” a more extensive survey was sent to law clinic attorneys asking basic questions about the freedom they had in case and class material selection. Approximately 300 surveys were sent by email in December 2005 to clinic attorneys at every AALS member law school. Between one and three members at each school were randomly selected. The clinics represented by those surveyed were varied, and no single type of clinic was singled out for participation. The survey questions asked about the attorney’s status within the institution and perceptions about faculty and administrative influence on clinic casework and course materials.

One hundred forty-seven clinic attorneys, nearly half of those contacted to participate, completed and returned the survey. Their responses were revealing. A high number of those who completed the survey reported experiencing interference or worrying about interference from the law school’s administration or other faculty. Specifically, 12% reported interference from faculty or administration in their casework. A far greater number, over 36%, answered that they have worried about the faculty or administration’s reaction to their casework, even if they had not experienced actual interference. Perhaps not surprisingly, clinic attorneys at public law schools showed greater concern about the reactions of faculty and administrators than at private schools: 44% of clinic attorneys at public schools were worried about reactions to their casework, whereas 29% of attorneys at private schools expressed such worries.

Moreover, such worries had concrete effects. Almost one in six clinic attorneys reported self-censoring their choices about case selection as a result of their concerns about potential reactions to their casework.

May – October 2008 Survey

The results of the 2005 survey convinced us to conduct a more extensive survey in 2008 to test some of the same interference issues in a format that would allow more meaningful analysis. The 2008 survey was sent to 947 law clinic attorneys who were listed in the AALS Section on Clinical Legal Education or Clinical Legal Education Association (CLEA) membership databases, and they were given three months within which to respond. Three hundred thirty-two clinical faculty responded, a 35% response rate.

The responses regarding questions about interference from administrators were revealing. When asked whether the dean or clinical program director (the faculty member with oversight responsibility for the various clinics at the school) ever suggested that the clinic attorney avoid a particular case, over one in five (22%) answered “yes”, with 9% answering yes with respect to at least the dean and 15% answering yes with respect to at least the clinical program director. Respondents were asked to explain their answers and reported that deans had expressed concerns over suing a major donor to the law school, representing a defendant who was convicted of killing a university student, and filing lawsuits against attorneys, class actions, or impact litigation. The fact that deans have sought to influence or control the case selection decisions of 9% of clinic attorneys is particularly revealing, since at the time of the survey only one school was known to have a formalized role for the dean in such decisions and no school had identified its dean as being a member, with appropriate state bar licensing, of its clinical program legal office.

Aside from direction by the dean or clinical director, clinic attorneys often avoided a case on their own initiative because they believed school administrators would rather that they not take the case. Over 10% of respondents engaged in this form of self-censorship by avoiding a case because they suspected the clinical program director or the dean would prefer that the clinic attorney not handle the matter. One respondent commented that the clinical director wanted to avoid politically-charged cases.

When respondents were then asked if they had ever witnessed or been informed of direct interference in the work of a colleague, 30% indicated they had. Seventeen percent responded that they had witnessed or been informed about such direct involvement by the dean, and 16% answered that they had witnessed or been informed about such actions with respect to the clinical program director.

Clinic attorneys are plainly aware of their law school administration’s mindfulness of opinions by outsiders about their work. In response to questions about how mindful the dean is to various groups’ opinions, 66% said that the dean was mindful of potential donors, 61% stated the dean was mindful of alumni opinions, 37% as to the state legislature, 36% as to state courts, 33% as to the state bar and 31% as to businesses. Thus, clinic attorneys believe that deans are most likely to be sympathetic or respond to concerns or complaints about clinical program activity expressed by potential donors and alumni.

The responses to a survey question about law school governance were striking. This question asked clinic attorneys to describe their ability to contribute to matters of law school governance and asked them to choose from among three possible answers: “I feel I can express dissenting views on controversial law school governance issues without fear of reprisal”; “I feel I cannot express dissenting views on controversial law school governance issues without reprisal”; or “I avoid expressing dissenting views on controversial issues because I am not confident there will be no reprisal.”

The answers reveal that the extent to which clinic attorneys feel they can contribute to matters of law school governance is plainly tied to the attorney’s security of position within the school. First, there was an overall sense of alienation by law clinic attorneys and lack of ability to participate fully in law school decisions—over 29% of clinical faculty reported either not being able to express dissenting views or avoiding expressing dissenting views on matters of school governance. Seven percent replied that they could not express dissenting views at all without reprisal, and 22% avoided expressing dissenting views on their own because they feared possible reprisal.

Even more striking was the direct correlation between security of position or “status” within the law faculty and the freedom a clinic attorney feels to speak up on matters of governance. Respondents were asked to identify their employment status among various categories: short-term contract (three years or less); long-term contract; clinical tenure or clinical tenure track; tenure or tenure-track; or adjunct.112 Those on short-term employment contracts were most likely to feel unable to contribute when compared to long-term contract faculty or tenured faculty. Forty-four percent of short-term contract attorneys responded that they either could not express or avoid expressing dissenting views, while 18% of long-term contract attorneys and 13% of tenured clinic attorneys expressed these views. Since clinic attorneys on long-term contracts were more likely to feel unable to contribute to governance than tenured attorneys, the common perception that law faculty with tenure feel most able to express dissenting views on law school governance was borne out by the survey results. Also, not unexpectedly, clinic attorneys on tenure track (whether regular tenure track or clinical tenure track) and soon subject to a vote on their long-term employment status within the legal academy expressed almost as much fear of speaking out as short-term contract attorneys.

The finding that those with less security of position are unable to express dissenting views is especially significant given the high number of law clinic attorneys in lower-status positions within law schools. Based on a 2007-08 survey of clinic attorneys at ABA accredited law schools, a majority of law schools, over 56%, rely on at least one clinic attorney on a short-term contract. Specifically, over one-fourth of all clinic attorneys are employed on short-term contracts of less than five years. This number increases to over 40% when adjuncts and clinic staff attorneys are included. Attorneys on long-term contracts represent 18% of full-time clinic faculty, with 11% holding clinical tenure or on clinical tenure track and 23% holding a tenured or tenure-track position. As the employment status of clinic attorneys is plainly tied to their ability to dissent, employment status is also likely tied to the degree of concern attorneys have about handling controversial cases that was revealed in the 2005 and 2008 surveys. That is, with so many clinic attorneys in lower status employment positions within their institutions, there is reason to believe that the same fear of speaking up on law school governance matters manifests itself in significant self-censorship (or fear) of controversial or unpopular clients or cases by attorneys with less secure positions.

Even with more attention paid to drafting the 2008 survey questions, there were still imperfections that confound the results. For example, the survey includes responses from field placement (externship) teachers who, by the nature of their appointment, rarely struggle with interference issues and always answered “no” (or “N/A”) to survey questions about such interference. Hence, the problems faced by clinical faculty that work in live-client law clinics are understated in the survey results.

A second problem stems from the question that sought to record the length of time a person has taught in a law clinic. Length of service, of course, can often be a proxy for security of position. Moreover, the longer one has been teaching in a law clinic setting, the more likely she is to have encountered some interference. However, because the survey did not ask for the status of the respondent at the time of the interference, but rather only for the status at the time the person completed the survey, it was not possible to draw out the relationship between security of position and the prevalence of interference.

One other imperfection related to a question asking if either the dean or clinical director was mindful of various groups outside the law school. The question was aimed at determining whether law clinic attorneys were conscious of the extent to which deans or clinical directors were attentive to the concerns or complaints of certain groups and whether this resulted in clinic attorneys making decisions differently as a result. Most comments to this question suggest, however, that when respondents replied that deans or clinical directors were mindful, they believed that the mindfulness was positive. For instance, most respondents explained that administrators were interested in pleasing external groups as a way to generate publicity for their clinical programs or schools or to receive funding for the law school or clinics. Yet, if deans and clinical program directors are most interested in pleasing certain external groups, then it is also likely that they would be quite interested in appeasing those groups should they register a concern or complaint about a law clinic or clinic attorney’s activities.

As a final observation, while the response rate was more than adequate for an online survey and useful for drawing out some themes, a significant number of faculty did not respond to either survey. Although confidentiality was promised, some of the respondents with the greatest expressions of concern about interference also expressed the most concern with the confidentiality of their responses. This raises the question whether many clinic faculty chose not to respond to the survey out of similar and perhaps even greater concerns about their responses remaining confidential and not getting back to their school administrators. As expected, a review of the comments to the questions suggests that those who articulated the least concern about interference generally were from schools which provide clinic attorneys with the greatest security of position and have well-known cultures of valuing clinical faculty and protecting them from interference.

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Abridged Endnotes (numbering in original)
5. Trister v. Univ. of Miss., 420 F.2d 499, 500-01 (5th Cir. 1969); Francis B. Stevens & John L. Maxey, II, Representing the Unrepresented: A Decennial Report on Public-Interest Litigation in Mississippi, 44 Miss. L.J. 333, 345 (1973); The Univ. of Mississippi, Am. Ass’n U. Professors Bull. 75, 79, 84 (Spring 1970) [hereinafter AAUP Bulletin].
6. Trister, 420 F.2d at 501-02; AAUP Bulletin, supra note 5, at 76-78.
7. Trister, 420 F.2d at 502.
8. Id. at 504.
9. AAUP Bulletin, supra note 5, at 84-85.
10. Id. at 83-84.
11. Id. at 85; see also John Egerton, Shake-up at Ole Miss, Change, Winter 1972-73, at 24, 28.
12. Elizabeth M. Schneider, Political Interference in Law School Clinical Programs: Reflections on Outside Interference and Academic Freedom, 11 J.C. & U.L. 179, 184 (1984).
13. ABA Comm. on Ethics and Prof’l Responsibility, Informal Op. 1208 (1972) [hereinafter ABA Informal Op. 1208]; see also Pa. Bar Ass’n Comm. on Legal Ethics and Prof’l Responsibility, Informal Op. 99-10 (1999) (stating that a law clinic attorney is “ethically obligated to take measures to protect your clients’ interests in any area in which those interests might be somehow impaired by the contrary interests of the school as your employer”).
14. ABA Informal Op. 1208.
15. Id.; see also ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 334 (1974). For an extended analysis of the ethics of interference in law clinics, see Robert R. Kuehn & Peter A. Joy, An Ethics Critique of Interference in Law School Clinics, 71 Fordham L. Rev. 1971 (2003).
16. [E-mail from Joseph D. Harbaugh, Dean, Shepard Broad Law Ctr., Nova Se. Univ., to Robert Kuehn (Mar. 20, 2001, 06:20 EST)].
17. Atkinson v. Bd. of Trs. of Univ. of Ark., 559 S.W.2d 473, 474 (Ark. 1977); Schneider, supra note 12, at 184.
18. Atkinson, 559 S.W.2d at 474-77.
19. Schneider, supra note 12, at 185-86.
20. Id. at 186 n.32. Later, Texas enacted similar measures to prohibit state employees from assisting parties opposing the state in litigation. See Hoover v. Morales, 164 F.3d 221, 223 (5th Cir. 1998). In a challenge to the state policies, the U.S. Court of Appeals for the Fifth Circuit held that the state had failed to meet its burden of showing how the involvement of faculty members in the cases would “adversely affect the efficient delivery of educational services.” Id. at 226.  In addition, the court noted that the restrictions drew a distinction based on the content of the employee’s speech—the measures protected employees who acted as witnesses or consultants on behalf of the state, yet punished employees who assisted those who oppose the state in litigation. Id. at 227.
21. Schneider, supra note 12, at 186; Helen Chenoweth, U of I Institute Questioned, Statesman (Boise, Idaho), Aug. 15, 1981, at 6A.
22. Telephone Interview with Neil Franklin, Univ. of Idaho Coll. of Law (Apr. 26, 2002).
23. Schneider, supra note 12, at 186.
24. Minutes of Meeting of Bd. of Trs., Univ. of Tenn. 6-7 (Sept. 25, 1981); Douglas A. Blaze, Deja Vu All Over Again: Reflections on Fifty Years of Clinical Education, 64 Tenn. L. Rev. 939, 960 (1997).
25. E-mail from Douglas A. Blaze, Univ. of Tenn. Coll. of Law, to Robert Kuehn (Aug. 13, 2010, 10:13 CST).
26. See Robert R. Kuehn, Denying Access to Legal Representation: The Attack on the Tulane Environmental Law Clinic, 4 Wash. U. J.L. & Pol’y 33, 55-58 (2000).
27. Id. at 65-69; Christi Daugherty, Target: Tulane, Gambit Wkly. (New Orleans, La.), Oct. 13, 1997, at 9.
28. See La. Sup. Ct. R. 20; see also Peter A. Joy, Political Interference with Clinical Legal Education: Denying Access to Justice, 74 Tul. L. Rev. 235, 238-40 (1999).
29. S. Christian Leadership Conf. v. Supreme Court of La., 61 F. Supp. 2d 499, 513-14 (E.D. La. 1999), aff’d, 252 F.3d 781 (5th Cir. 2001).
30. S. Christian Leadership Conf. v. Supreme Court of La., 252 F.3d 781, 789-792 (5th Cir. 2001).
31. Id. at 795. The court did note that the motivation of the state can be a primary factor in judging the constitutionality of state action in some areas of First Amendment law. Id. at 792-93.
32. Kuehn & Joy, supra note 15, at 1985.
33. Schneider, supra note 12, at 185.
34. Id. at 185 & n.30. The bill explained that it “prohibits educational programs for [sic] providing any civil legal assistance to prisoners, thereby eliminating the legal assistance clinic at the university of Iowa law school.” H.F. 374 (Iowa 1981).
35. Retha Hill, Md. Moves to Head Off Suits by Poor; State to Withhold Legal Aid Funding, Wash. Post, June 25, 1987, at D1.
36. See Robert Barnes, Gov. Schaefer Patches Spat with Lawyers; Legal Aid Dispute Ends with Accord, Wash. Post, July 23, 1987, at B5.
37. Annie Linskey & Timothy B. Wheeler, Lawmakers Decry UM Law Clinic’s Farmer Lawsuit, Balt. Sun, Mar. 27, 2010, at 1A; Ian Urbina, School Law Clinics Face a Backlash, N.Y. Times, Apr. 4, 2010, at 12.
38. See Annie Linskey, Funding Restored to Law Clinic; Lawmakers Reverse Decision Targeting School that Launched Suit; General Assembly, Balt. Sun, Apr. 7, 2010, at 2A.
39. See E-mail from Gary Lowenthal, Ariz. State Univ. Coll. of Law, to Robert Kuehn (Apr. 2, 2001, 17:13 MST).
40. See E-mail from Catherine O’Grady, Ariz. State Univ. Coll. of Law, to Robert Kuehn (Feb. 1, 2010, 16:24 MST).
41. See State Senator Gets Symbolic Rebuke of Pitt Professor, Associated Press Newswires (Pa.), June 23, 2001; see also Univ. of Pittsburgh Senate, Report of the Tenure and Academic Freedom Comm. on the Envtl. Law Clinic 2 (Jan. 28, 2002).
42. See Bill Schackner, Law Clinic Sparks Debate: Academic Freedom Under Fire, Some Say, Pittsburgh Post-Gazette, Nov. 18, 2001, at B1; Don Hopey, Law Clinic at Pitt Feeling Pressure; Controversy Swirls Over Environmental Clients, Pittsburgh Post-Gazette, Oct. 17, 2001, at B1.
43. See Elizabeth Amon, School Law Clinics Spark Hostility, Nat’l L.J., Apr. 1, 2002, at A5; Don Hopey & Bill Schackner, Faculty Rips Pitt, Defends Law Clinic, Pittsburgh Post-Gazette, Jan. 29, 2002, at B1.
44. Terry Carter, Law Clinics Face Critics: Business Interests Fire Up Challenges to Schools’ Environmental Law Projects, ABA J., July 2002, at 24, 26; Don Hopey & Bill Schackner, In Reversal, Pitt Decides to Keep Law Clinic Going, Pittsburgh Post-Gazette, Mar. 15, 2002, at A1; Bill Zlatos, Pitt Reaches Deal to Keep Clinic, Pittsburgh Trib. Rev., Mar. 15, 2002, at A3.
45. See Memorandum from John E. Bonine to the Faculty of Univ. of Or. Sch. of Law, (Dec. 18, 1987); Report of the Ad Hoc Study Comm. for the Envtl. Law Clinic, Univ. of Or. Sch. of Law 4 (Nov. 30, 1988). A wealthy timberman threatened to cancel a $250,000 gift for a new basketball arena unless the University disbanded the clinic.  Jerry Kirshenbaum, Tainted Gift, Sports Illustrated, Feb. 9, 1981, at 17.
46. 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) (responding to Opinion Request OP-5498).
47. Letter from Arnold, supra note 46, at 4. The opinion brushed aside claims that the actions of the clinic were improperly making the state a party to the environmental disputes, noting that the law clinic’s role as counsel for private parties did not make the university a party to the proceeding. Id. at 5.
48. Memorandum D8383-25 from James P. White, Consultant on Legal Educ., ABA, to Deans of ABA Approved Law Schools (Feb. 21, 1983).
49. Report of the Ad Hoc Study Comm. for the Envtl. Law Clinic, supra note 45, at 14.
50. See Alan Pittman, UO Environmental Law Clinic Funding Axed, What’s Happening (Eugene, Or.), Sept. 2, 1993, at 1; Peter A. Joy & Charles D. Weisselberg, Access to Justice, Academic Freedom, and Political Interference: A Clinical Program Under Siege, 4 Clinical L. Rev. 531, 534 (1998).
51. Letter from Representative Jim Kasper, N.D. House of Representatives, to Wayne Stenehjem, N.D. Attorney Gen. (Aug. 27, 2003); see also David Dodds, Law School Won’t Stop Involvement in Federal Case: UND Dean Stands by Clinic in Face of Possible Attorney General Opinion, Grand Forks Herald (Grand Forks, N.D.), Aug. 27, 2003, at A1; Chuck Haga, City is Sued to Remove Religious Monument Fargo’s 10 Commandments Plaque is at Issue, Star Trib. (Minneapolis, Minn.), Oct. 30, 2003, at 1A.
52. Letter Op. 2003-L-42 from Wayne Stenehjem, N.D. Attorney Gen., to Representative Jim Kasper, N.D. House of Representatives, at 1 (Sept. 26, 2003).
53. See 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).
54. Transcript of Motion, supra note 53, at 23, 36.
55. See Michael Dehncke, Life in Louisiana, Dicta (Tulane Law Sch.), Oct. 25, 1993; see also Josh Landis, State and Industries Pressure Environmental Law Clinic, Hullabaloo (Tulane Univ.), Nov. 19, 1993, at 1.
56. The president explained in Eamon M. Kelly, Kelly: Faculty Views are Their Own, Not Tulane’s, Times-Picayune (New Orleans, La.), Sept. 30, 1993, at B6.
57. Kuehn, supra note 26, at 61-62.
58. Marcia Coyle, Governor v. Students in $700M Plant Case: Tulane Law School Clinic Threatens Construction of a Chemical Complex, Nat’l L.J., Sept. 8, 1997, at A1; Susan Hansen, Backlash on the Bayou, Am. Law., Jan.-Feb. 1998, at 50.
59. Katherine Mangan, Louisiana Bill Would “Cripple” Law School Clinics, Deans Say, Chron. Higher Educ., May 11, 2010.
60. See Karen Sloan, Chemical Association Escalates Attack on Tulane Over Law Clinic, Nat’l L.J., May 12, 2010.
61. Jordan Blum, Panel Derails Law Clinic Bill, Baton Rouge Advoc., May 20, 2010, at 1A.
62. E-mail from Lawrence M. Grosberg, Clinical Professor, N.Y. Univ. Law Sch., to Robert Kuehn (Nov. 14, 2001, 10:03 EST).
63. E-mail from Carl Monk, formerly Dean, Washburn Univ. Sch. of Law, to Robert Kuehn (Feb. 23, 2006, 10:47 EST).
64. Doe v. Roe, 958 F.2d 763, 766-67 (7th Cir. 1992).
65. Telephone Interview with John Allen, Clinical Professor, Univ. of Iowa Coll. of Law (Dec. 11, 2001).
66. Telephone Interview with George Bell, Associate Clinical Professor, Univ. of Ill. Coll. of Law (Apr. 11, 2006).
67. E-mail from Paul D. Reingold, Clinical Professor, Univ. of Mich. Law Sch., to Robert Kuehn (May 8, 2006, 07:45 GMT).
68. See Rick Brand, Suit Puts Hofstra Donor on the Fence, Newsday, Oct. 8, 2006, at A39.
69. Valerie Cotsalas, A Pledge to Hofstra Is Caught in Controversy, N.Y. Times, Oct. 7, 2006, at B3.
70. See Memorandum from Julie Field, Clinical Professor, Univ. of Denver Coll. of Law (undated memo to file titled “Meeting on October 9, 2002 with Heather Salg and Mary Gibbons”); E-mail from Doug Smith, formerly Univ. of Denver Coll. of Law, to Robert Kuehn (Sept. 8, 2004, 10:43 CST).
71. Letter from Amy F. Robertson, Attorney for Doug Smith, to Paul Chan, Gen. Counsel, Univ. of Denver 2 (Nov. 12, 2002); E-mail from Smith, supra note 70.
72 . Letter from Robertson, supra note 71, at 3.
73 . Id.; E-mail from Doug Smith, Professor, Univ. of Denver, to Julie Field, Clinic Co-Director, Univ. of Denver Sch. of Law (Oct. 11, 2002, 13:31 MST); E-mail from Doug Smith, Professor, Univ. of Denver, to Dean Robert Yegge, Clinic Co-Director, Univ. of Denver Sch. of Law (Oct. 18, 2002, 10:16 MST).
74. Memorandum from Julie Field and Bob Yegge, Clinic Directors, Univ. of Denver Sch. of Law, to Doug Smith (Oct. 16, 2002).
75. E-mail from Smith, supra note 70.
76. Sandra Svoboda, Murder Case Curveball: Prosecutor Wants to Question Law Students Who Worked on Defense, Metro Times (Detroit, Mich.), Mar. 17, 2010.
77. Id.; see generally Model Rules of Prof’l Conduct R. 3.8(e) (2009).
78. See David Ashenfelter & Joe Swickard, Wayne County Won’t Retry Provience in Drug Killing, Detroit Free Press, Mar. 24, 2010.
79. Mary Pat Gallagher, Suit Tests If Rutgers Law Clinics’ Files Are Subject to Disclosure Under OPRA, N.J. L.J., May 5, 2008, at 1.
80. Sussex Commons Assocs. v. Rutgers Univ., No. MID-L-8465-06 (N.J. Super. Ct. Law Div. Oct. 7, 2008).
81. [Sussex Commons Assocs. v. Rutgers Univ., 46 A.3d 536 (N.J. 2012).] A similar public records request was filed against the domestic violence clinic at Rutgers School of Law – Camden. See E-mail from Ruth Anne Robbins, Clinical Professor of Law, Rutgers Sch. of Law—Camden, to Jon C. Dubin, Professor of Law, Rutgers Sch. of Law—Newark (Aug. 4, 2008, 18:41 EST).
82. 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 (N.J. 1989).
83. In re Determination of Executive Comm’n on Ethical Standards, 561 A.2d at 547-49; see also Michelle D. Carter, Comment, Conflict of Interest—State Employees—Rutgers Law Professors May Continue Representation before State Agencies in the Exercise of the University’s Clinical Education Program, 22 Rutgers L.J. 231 (1990).
84. Letter from Kai Midboe, Secretary, La. Dep’t of Envtl. Quality, to Pascal F. Calogero, Jr., Chief Justice, La. Supreme Court (Oct. 15, 1993); Bob Anderson, “Politics” Prompted Protest of TU Law Clinic, Official Says, Baton Rouge Advoc., Oct. 19, 1993, at B1.
85. Letter from Pascal F. Calogero, Jr., Chief Justice, La. Supreme Court, to Kai David Midboe, Secretary, La. Dep’t of Envtl. Quality (Nov. 18, 1993); Bob Anderson, High Court Rejects Midboe Request on Law Clinic Restraints, Baton Rouge Advoc., Feb. 4, 1994, at 12C.
86. Bill Bishop, Ethics Complaint Dismissed by Bar, Reg.-Guard (Eugene, Or.), May 22, 1990, at 1C.
87. Haga, supra note 51.
88. Letter from Martin Wishnatsky to Laura Rovner, Univ. of N.D. Sch. of Law (Oct. 29, 2003); see also Fargo Man Wants to Remove Goddess Statue, Bismarck Trib. (Bismark, N.D.), Nov. 1, 2003, at 8A; Lisa Davis, Grand Forks County Courthouse Statute: Law School to Treat Case Like Any Other, Grand Forks Herald (Grand Forks, N.D.), Nov. 1, 2003, at B1.
89. Letter from Laura Rovner, Univ. of N.D. Sch. of Law, to Martin Wishnatsky (Nov. 12, 2003).
90. See Wishnatsky v. Rovner, No. A2-04-01, 2004 WL 2236415 (D.N.D. Sep. 3, 2004).
91. Id. at *1.
92. Wishnatsky v. Rovner, 433 F.3d 608, 610-11 (8th Cir. 2005). The case was remanded for further proceedings and then voluntarily dismissed by the parties.
93. Memorandum from Monica Schurtman, St. Mary’s Univ. Sch. of Law, to the Clinical Comm., St. Mary’s Univ. Sch. of Law 4-5 (Aug. 8, 2000); Memorandum from Bill Piatt, Dean, St. Mary’s Univ. Sch. of Law, to Monica Schurtman, Co-Director, Institute on Int’l Human Rights, St. Mary’s Sch. of Law (Dec. 23, 1998); see also Gary MacEoin, Dissent Simmers at St. Mary’s Law School, Nat’l Cath. Rep., Feb. 16, 2001, at 6.
94. Memorandum from Schurtman, supra note 93, at 6.
95. Letter from Bill Piatt, Dean, St. Mary’s Univ. Sch. of Law, to Lewis Karesh, Acting Sec’y, Bureau of Int’l Labor Affairs, U.S. Dep’t of Labor (July 7, 2000).
96. Memorandum from Schurtman, supra note 93, at 6.
97. Id. at 7; Megan Kamerick, Law School Finds Itself in the Thick of International Dispute, San Antonio Bus. J., Aug. 11, 2000, at 16.
98. Letter from Susan Westerberg Prager, Exec. Dir., AALS, to Senator Ann Duplessis, Chair, Comm. on Commerce, Consumer Prot., & Int’l Affairs, La. State Senate (May 20, 2010).
99. Frank Askin, A Law School Where Students Don’t Just Learn the Law; They Help Make the Law, 51 Rutgers L. Rev. 855, 857 (1999) (warning that the experience of the Tulane environmental law clinic merits caution by clinics at public law schools); David E. Rovella, Law Students Urged to Take Death Cases, Nat’l L.J., Dec. 7, 1998, at A9 (referencing the attack on the Tulane clinic, the Dean of Northwestern University School of Law expresses concern if clinics handle appeals of death row inmates).
100. Beverly T. Watkins, Limits Urged on the Litigation that Law Schools May Undertake in Clinics, Chron. Higher Educ., Jan. 26, 1983, at 8.
101. Caille M. Millner, HLS Center Watches La. Court Case, Harvard Crimson, Mar. 9, 1999.
102. Nicholas Sohr, State Delegate to UMd. Law Clinic: “We’ll Be Watching,” Md. Daily Rec., Apr. 7, 2010. As Professor David Luban observed about the failure to shut some clinics down: “If the [clinic] attacks failed, they were near misses, and eventually some will succeed.  Indeed, they may already have succeeded in one of their aims, because clinic directors will undoubtedly hesitate before taking on volatile cases that may provoke dangerous backlash against the clinics or their law schools.  Obviously, the degree to which clinicians self-censor cannot be known, but everyone in clinical education with whom I have discussed the subject agrees that self-censorship exists.  In effect, the assaults on environmental-law clinics function like SLAPP [Strategic Lawsuits Against Public Participation] suits, intimidating law school administrators and clinic directors even when they fail.” David Luban, Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers, 91 Cal. L. Rev. 209, 240 (2003).

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