Louisiana Targets Law School Clinics

By Jeffrey Selbin, Los Angeles Daily Journal

Reeling from yet another disaster lapping at its shores, my home state of Louisiana is courting further self-inflicted harm. Next week, the Louisiana Senate’s Commerce, Consumer Protection and International Affairs Committee will consider a bill to cripple the state’s law school clinics and reduce access to justice for some of the state’s poorest and most vulnerable residents. This frontal assault on law school clinics is the latest skirmish in a long-running battle between the state Legislature and Tulane’s Environmental Clinic, and perhaps the most brazen attack nationally on clinics by powerful corporate interests trying to tip the scales of justice in their favor.

Introduced by Sen. Robert Adley with the backing of the Louisiana Chemical Association, Senate Bill 549 would impose draconian restrictions on the activities of clinics at the state’s four accredited law schools. Adley has couched the bill in general terms, allegedly concerned about lawsuits against the government: “Don’t take tax money and then sue the same people you’re taking money from.” Louisiana Chemical Association president Dan Borne, on the other hand, is more direct about law school clinics and the real purpose of the legislation: “We’re going to tell legislators all over the state, if they want to play hardball by trying to kneecap industry in Baton Rouge, then we should play hardball and kneecap them with their state appropriations.”

Under the bill, law school clinics at universities receiving state funds — regardless of whether the funds directly support the clinics — are prohibited from: filing a petition, motion or suit against a government agency; filing suit against an individual, business or government agency seeking monetary damages; and raising constitutional challenges in state or federal court (except under limited circumstances). While enumerating discrete areas of law in which clinics can continue to operate, the proposed restrictions would render impossible most forms of legal representation. The proposed law also subjects law school clinics to on-going oversight by two legislative committees, and a violation of the law will result in the forfeiture of all state funding to the university for the entire fiscal year.

The immediate impact of SB 549 would be devastating. As the Deans of Tulane and Loyola Law Schools wrote to members of the state senate, “While perhaps aimed at one clinic, the bill sweeps much further and would put nearly all the law clinics in the state out of business, whether they are funded through public money or private dollars.... It would deal a grave blow to our ability to offer a sound curriculum to our students... [and] is a serious threat to legal education at our schools.” Through the proposed bans on filing actions against a government agency or making state constitutional challenges in state or federal court, at least four of Tulane’s six clinics — none of which is funded directly by the state — would be forced to close. According to a Loyola spokesperson, all seven of its clinics would be dramatically impacted. Another seven law school clinics at the Southern University Law Center — a historically black institution opened in 1947 to train African-American lawyers — would likewise be subjected to the restrictions. In response to the legislation, LSU Law Center Chancellor Jack Weiss observed that “Law clinics work best when law schools are allowed to decide how their clinics can best train students and best serve clients.”

Even if some law school clinics survive SB 549, the longer-term impact on the profession would be deeply troubling. As the U.S. Supreme Court found with respect to certain congressional restrictions on government-funded legal services lawyers, interference with legal advocacy — especially where constitutional questions are at stake — violates both the First Amendment and the Separation of Powers doctrine. That is, whether funded directly or indirectly by government, law school clinics and their students must have the same fundamental relationship to clients as other lawyers and the same ability to raise and defend legal claims. In addition, the bill would directly regulate the practice of law through legislative committee, a matter reserved to the Supreme Court by the Louisiana Constitution. As the Society of American Law Teachers has noted in opposing SB 549, “Legislative oversight of lawyer activities is an unacceptable government intrusion into the necessary and confidential lawyer-client relationship and an expansion of government regulation of the rights of private citizens.”

Finally, low-income individuals and community groups in Louisiana would suffer dearly if law school clinics are hamstrung or closed. In the wake of industry-led efforts to limit clinic representation more than a decade ago, Louisiana adopted the most restrictive student practice rule in the country. Clinic students may not represent individual clients whose annual income exceeds 200 percent of the federal poverty guidelines, community organizations unless they can demonstrate that a majority of their members meet such income guidelines, or clients of any kind if the clinic initiated contact for the purpose of representation. In other words, law school clinics in Louisiana are already limited to representing the state’s poorest clients and community organizations who seek their assistance.

The pressing legal needs of four in five low-income Americans currently go unmet, and access to justice is out of reach for far too many people in Louisiana. Thousands more each year might go without legal assistance if SB 549 becomes law. And as the state grapples with the unfolding disaster in the Gulf of Mexico, do we really want to further insulate industry from compliance with state and federal environmental laws? Third-year LSU law student Sarah Cable recently wondered aloud what corporations have to fear from law students: “At first blush, it seems like a way for corporations to prevent themselves from getting sued. If you’re not doing something wrong, then why are you worried?”

Though attempts to restrict or silence law school clinics and their clients go back several decades, the recent legislative attack on the environmental clinic in Maryland is instructive here. The organized bar, bench and academy — and individual lawyers, judges and law professors — can influence the outcome of these battles. By standing with law school clinics in Maryland, the legal profession succeeded in protecting them from the harshest consequences of corporate-backed government interference. Consistent with our professional responsibility to ensure access to justice, we should rise to the challenge in Louisiana and any other jurisdiction where the economically powerful and politically connected attempt to silence the voices of the defenseless or the oppressed.

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.