Defending Law School Clinics From Political Interference

Jeff Selbin, Los Angeles Daily Journal

Law school clinics are once again under political attack, and the legal community has a vested interest in the fight. Several important issues are at stake for lawyers and the legal system, including the training of law students, access to justice for underrepresented clients, and core values of the profession.

The latest controversy is unfolding in Maryland, where students in the flagship university’s Environmental Law Clinic sued poultry giant Perdue Farms and a local affiliate alleging illegal discharge of pollutants into regional rivers, which drain into the Chesapeake Bay. In response to the lawsuit, the Maryland Legislature has sought to force the clinic to divulge potentially confidential client information. In fact, the Senate version of the pending legislation — which has yet to be reconciled with the more temperate bill passed by the House of Delegates — would withhold significant state funding from the University of Maryland in an effort to compel such disclosures.

Law school clinics currently face similar challenges in courtrooms and legislatures in Michigan, New Jersey and Louisiana. Leading the charge on a bill to prohibit clinics which receive any public funds from suing individuals, corporations or government agencies for damages, the Louisiana Chemical Association president was recently quoted as saying “we should play hardball and kneecap them law school clinics with their state appropriations.”

Unfortunately, political and legislative attacks on law school clinics are not new. In the late 1960s and early 1970s, clinical faculty and their students at the University of Mississippi and the University of Connecticut were subjected to restrictions — later overturned or abandoned — on representing clients in desegregation and anti-war cases. During the 1980s and 1990s, legislatures and other public officials in Colorado, Iowa, Idaho, Arizona and New Jersey sought to limit funding and activities of law school clinics for bringing various forms of litigation against the states. Environmental clinics have been particular targets during the last few decades, with major efforts by business interests and their allies to cripple law student practice in Oregon, Pennsylvania and Louisiana.

But why should the practicing bar care about the vitality and independence of law school clinics? First, clinics are sites of effective law student training. Second, clinics provide critical legal assistance to underrepresented clients. Finally, these periodic assaults on clinics threaten fundamental values of the legal profession and the justice system itself.

Law school clinics have proliferated during the last four decades in response to student demand for more hands-on training in the classroom. Today, there may be as many as 1,200 distinct clinics located in almost all of the nation’s 200 law schools, a substantial expansion from the several dozen programs just a half century ago. The expansion of clinics has been accompanied by a spectacular growth in subject matter specialization and lawyering methods. To name just a few examples, clinic students represent small businesses, disabled veterans, asylum seekers, the elderly, and people at risk of losing their homes due to foreclosure. Students work in litigation clinics, ADR clinics, policy clinics and multidisciplinary partnerships.

The Carnegie Foundation for the Advancement of Teaching — the leading independent policy and research center dedicated to higher education and professional training — recently described “the most striking feature” of law school clinics as their “power...to engage and expand students’ expertise and professional identity through supervised responsibility for clients.” The teaching value of clinics is confirmed by young lawyers themselves. In “After the JD,” a national survey of early-career lawyers, respondents rate clinical training more highly for making the transition to the actual practice of law than any other aspect of the law school curriculum. Data from the same study suggest that participation in clinics fosters a commitment to public service among recent law school graduates.

Clinics also help to fill the substantial “justice gap” between the need for and access to legal services for the poor and other underrepresented individuals and groups. According to a report from the Center for the Study of Applied Legal Education (CSALE), a recent national survey finds that law students annually provide 2.4 million hours of legal services in civil (1.8 million hours) and criminal (600,000 hours) clinics. The CSALE report further estimates that each year students in law school clinics represent almost 90,000 clients in civil matters and more than 38,000 clients in criminal cases. For example, Berkeley Law’s community-based clinic, the East Bay Community Law Center, has become the largest provider of free civil legal services to the poor in Alameda County, assisting several thousand low-income clients with a wide range of needs.

That is, law school clinics help to fulfill the American Bar Association Model Rules of Professional Conduct’s admonition that “all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” In California — consistent with Business and Professions Code Section 6068(h), which requires a lawyer “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed” — our own State Bar Board of Governors’ Pro Bono Resolution urges all law schools to facilitate the participation of law students in pro bono activities.

Finally, politically-motivated attacks on law school clinics infringe upon core values of the legal profession. In addition to our obligations to ensure access to justice and not to refuse unpopular or controversial clients and cases, we also owe our clients a duty of loyalty and the exercise of independent professional judgment free from outside pressure or influence. Of course, law school clinics are subject to the rules of professional conduct, which prevent frivolous lawsuits or litigation abuse, but legislative interference or other restrictions on clinics threatens fundamental tenets of the lawyer-client relationship.

In particular, it is important for us to model these values to students. The independence of our profession and its special role in our system of justice demand no less. As the Dean of the University of Pittsburgh Law School remarked in 2002 in connection with an attack on that school’s Environmental Law Clinic, “What are we teaching law students when we decide not to represent people who otherwise would not have a voice because of this legislative pressure?”

If the recent experiences in Maryland and elsewhere serve as any guide — and in light of the decades-long history of such attacks — we can expect more attempts to meddle in the affairs of law school clinics, especially when they give voice to the defenseless or the oppressed. Fortunately, given the value-added benefit of law school clinics in the teaching, service and professional dimensions, the ABA and law professors around the country have come to the defense of the Maryland program. As a result, the harshest version of the legislative encroachment appears to have been avoided.

Law school clinics are training the next generation of lawyers, increasing access to justice for the underrepresented, and advancing the highest ideals of the profession. Going forward, the practicing bar should vigilantly and vigorously defend clinics from politically-motivated interference. And — to help insulate them from legislative and other infringements on their independence — lawyers should provide financial and other material support to law school clinics at their alma maters and in their local communities.

Jeff Selbin is a Clinical Professor of Law at Berkeley Law. He is the faculty director of the East Bay Community Law Center, which is part of the law school’s clinical program.