On Avoiding and Responding

The list below for avoiding or responding to interference is drawn from the authors’ over thirty years of experience with efforts to interfere in law clinics. Note that these are merely ideas, not suggestions from the authors on what a particular clinic should implement.

Avoiding or Minimizing Interference
• Recognize potential risky or controversial issues, clients, opposing parties, etc., to be cautious in handling
• Consider informing the dean once a matter is filed or submitted if it is likely the clinic’s action may trigger an inquiry or complaint, subject to rules of confidentiality
• Create case selection guidelines in order to show particular matter was handled appropriately
• If the clinic is subject-mater specific, be careful handling cases or maters that may be viewed as outside the clinic’s approved subject area
• Represent a client, not a cause or the clinic’s own interests, as a way to trigger the heightened professional responsibilities and confidentiality obligations owed by the clinic to the client and heightened independence the school owes the clinic attorney
• Put clinic students in role as student attorneys (in the “1st chair” where appropriate) to stress the educational role of clinic representation
• Consider an advisory committee of lawyers supportive of the clinic’s mission that can reinforce the merits of the clinic’s decisions
• Advocate for your school’s academic freedom policy to include an explicit protection for law clinic case selection and client representation
• Clarify the dean’s role, if any, in case selection because they are not a member of the clinic law firm and shall not direct or regulate the clinic lawyer’s professional judgment in rendering legal services nor have access to confidential clinic information or material
• Clarify any experiential or clinical program director or associate dean’s role, limited if any at all, in cases handled by another clinic attorney
• Educate and gain the support of the non-clinical faculty and school administration on the clinic’s educational and professional missions and its duties to clients and the legal profession
• Cultivate legislative allies and alumni ties for later support when under attack
• Train staff and students on confidentiality and public records policies and practices, keeping an eye on what is written and creating privilege/work product protection where possible
• Train staff and students on communication and data security policies and practices and consider the security of your email, file storage/case management systems, messaging systems, and conferencing tools for communications
• In filing amicus briefs or making statements, consider using a disclaimer to prevent any misconception that the clinic’s or a clinic faculty member’s statements or actions reflect the position of the university (e.g., “The views expressed herein do not necessarily represent the position or policies of the law school or university.” or “The views expressed by the clinic or its representatives are not statements by or on behalf of the law school or university.”)
• Beware that non-client actions (e.g., statements to the media on a policy issue) can draw unwanted attention to the clinic and ignite interference
• Consider avoiding the use of university resources/equipment when working on a non-clinic legal matter, even when there are not policies requiring faculty to do so
• Consider avoiding or minimizing publicity about certain legal matters
• Publicize the good works of the clinic, especially where not controversial
• Beware that attorney fee requests can trigger a backlash, especially when made against a governmental entity
• Beware of possible conditions attached to gifts or grants that might interfere with the clinic’s case or client selection
• Recognize the importance of employment status, and the security of position attached to it, for law clinic faculty

Responding to Interference
• When first aware that someone may complain or attempt to interfere with the clinic, notify the associate dean or director of the clinical program to coordinate notice to the dean
• Where the source of the interference is external, get the dean, faculty, and university onboard by explaining the clinic’s educational and service missions and responsibilities to clients
• Where possible, publicize the interference so that those seeking to interfere have to justify their actions and so that the university has to confront its attitude on academic freedom and the professional responsibilities of clinic lawyers
• Reach out to established organizations for support (e.g., ABA; AALS; CLEA; SALT; AAUP), starting with the AALS Clinical Section and CLEA
• Argue rules of professional conduct and duties of clinic lawyers to clients and to the legal profession
• Stress the need for access to legal representation, and hence access to justice, and the clinic’s responsibility, like other lawyers, to address that need
• Raise the academic freedom of clinic faculty to choose clients and cases to handle but understand it may have limited impact outside the university
• Circulate, or better to have clients and supporters circulate, sympathetic clinic case/client stories
• Publicize the work of the school’s clinics and the pro bono hours donated by clinics to the local community
• Enlist supporters for letters, lobbying, press (e.g., clients; professional organizations), deciding what will be most appropriate given the type of interference
• Do not read, and surely do not engage with, negative comments and online trolls
• Explain your position to the media once the interference becomes public, though it is often better to keep a lower profile and let supporters speak for the clinic’s work