Joy, P; Kuehn, R R --- "Conflict of Interest and Competency Issues in Law Clinic Practice" [2006] LegEdDig 3; (2006) 14(3) Legal Education Digest 4

Conflict of Interest and Competency Issues in Law Clinic Practice

P Joy & Robert R Kuehn

[2006] LegEdDig 3; (2006) 14(3) Legal Education Digest 4

9 Clinical L Rev, 2002, pp 493–577

Law school clinic students and faculty face many difficult questions in providing legal services to traditionally unrepresented individuals and groups, and the ethical issues they confront are among the hardest. Working as lawyers on behalf of clients under student practice rules, law clinic students and faculty experience the legal ethics issues lawyers face every day.

Although the Model Student Practice Rule is generally silent concerning the ethical duties certified clinic students owe their clients, the student practice rules in many states require students to certify in writing that they have read and are familiar with the state rules of professional conduct. Additionally, a number of states require law students to certify in writing that they will follow the prevailing ethical rules. Most state student practice rules do not explicitly require students to face professional discipline if they violate the applicable rules of professional conduct, though some do. Thus, the penalty against a certified clinic student for unprofessional conduct while practising law under a student practice rule is usually revocation of the right to practise law under the student practice rule, which can take place without any hearing and without the showing of any cause.

If the clinic students are considered non-lawyer assistants, then Model Rule 5.3 places all of the professional responsibility on the supervising lawyer to ensure that the non-lawyer assistant’s conduct ‘is compatible with the professional obligations of the lawyer,’ and makes the lawyer responsible for the non-lawyer assistant’s conduct. In addition to facing the possibility of professional discipline in some states, clinic students in every jurisdiction face the effect that ethical misconduct as clinic students may have on their application to the bar.

A fundamental question that must be answered prior to analysing professional responsibility issues for clinic students is whether or not they are to be treated as ‘lawyers’ or ‘non-lawyers’. None of the student practice rules specifically state whether a student certified under the practice rule should be treated as a lawyer or non-lawyer, though student practice rules grant privileges and impose responsibilities upon students that are usually reserved only for lawyers. Many student practice rules also refer to the ‘limited practice’ of law or ‘limited license’ to practise law by students.

In a state where the student practice rule does not hold a certified student professionally responsible for her actions, one could argue that the requirement of close supervision of the certified student by a licensed lawyer, which is not required of fully admitted lawyers, is indicia that the student should not be treated as a lawyer for legal ethics purposes.

Even if the student practice or ethics rules do not establish disciplinary authority over student-lawyers when they act outside the law clinic context, any misconduct as law clerks in law firms or other misconduct outside of the clinical setting is likely to become problematic as a bar admissions issue. Clinical programs that enroll students who are not admitted to practise law under student practice rules must be careful that the law students neither hold themselves out as student-lawyers nor undertake to provide direct client representation that might be construed as the unauthorised practice of law, except to the extent permitted by the rules of ethics and laws of the jurisdiction.

There are many different types of clinical models, and the various models also implicate different supervisory relationships between students and their supervisors. In these clinics, the students may function solely as lawyer assistants or clerks for supervising faculty in an in-house law clinic, or for field supervisors in externship programs, and work on briefs and legal documents without establishing their own lawyer relationship with clients. Other clinical programs enroll only students certified to represent clients pursuant to a student-practice rule. Supervising faculty in law clinics have ethical obligations defined by both the student practice rules — when supervising student-lawyers — and by the ethics rules in the jurisdictions where they practise — whether the law clinic faculty are supervising student-lawyers or law clinic students who are not certified under student practice rules. In those states that do not explicitly or implicitly require supervising clinical faculty to represent clinic clients jointly with the student-lawyers, clinical faculty may establish a client-attorney relationship with clinic clients through the retainer agreement, or implicitly through interactions between clinical faculty and clinic clients.

In many ways, conflicts of interest are like tips of icebergs for law clinic programs — the visible parts of conflict issues representing small pieces of the potentially huge problems lying below the surface. By protecting client confidentiality and the lawyer’s duty of loyalty, conflict-of-interest rules also reinforce clients’ confidence and trust in their lawyers. Defining the clinic law firm is essential to understanding how conflict-of-interest rules, particularly the rule imputing conflicts of interest from one lawyer to another, apply to law school clinic students and faculty. Thus, how the clinical program is structured and held out to the public will determine whether or not for conflict purposes each individual clinic will be considered a separate law firm or all of the clinics in the entire clinical program will be treated as one law firm. It is unlikely, however, that many clinical programs take all of the steps necessary to create separate law office entities for each subject matter clinic.

Each prospective and currently enrolled student in a law clinic may trigger a conflict of interest based upon the student’s prior, current, or future employment with an outside legal employer. A conflict based upon a law clinic student’s past employment is perhaps the easiest type of conflict to identify and resolve in a clinical program. If there is conflict involving a current clinic client due to a student’s prior legal employment that cannot be ethically removed by either the informed consent of all affected clients or ethical screening, then the student will be precluded from enrolling in the clinic or the clinic will be precluded from continuing to represent the client.

In the typical law school situation, the law school or university’s governing board usually does not exercise direct control of the clinical faculty’s day-to-day lawyering, nor do such bodies set clinical faculty salaries or maintain oversight of the day-to-day operations of the clinic. But this is not always the case. The risks of interference from the university governing board may be moderated by the fact that the lawyer members of the governing board are ethically prohibited from interfering in the clinical faculty’s legal work on behalf of a client, and the faculty person must exercise the same independent professional judgment in opposing a party or lawyer serving on the governing board as in other cases.

Every clinical program needs to have conflict-checking mechanisms in place to identify and resolve potential and actual conflicts of interest. Clinical programs should be proactive in identifying and resolving conflicts of interest, particularly because student-lawyers may not have taken a professional responsibility course prior to enrolling in a clinic and may not think to inform the clinic faculty of potential conflicts.

As a first step in identifying and resolving conflicts of interest, law schools should distribute information explaining conflicts of interest and the ethical rules to help law students identify potential conflicts of interest prior to commencing work in the clinic. A law clinic has the same duty to provide competent representation to clients as any other law firm or legal services provider. The duty of competence owed to persons receiving legal services has both legal malpractice and ethical dimensions.

The breadth of conflict-of-interest and competency issues facing law clinics in their day-to-day case and client selection decisions may seem daunting to clinical programs pressed for time and resources. Undoubtedly, the ethical concerns raised by this article, and the steps put forth to address such concerns, will entail adjustments in the way some clinical programs and their faculty and students operate. However, a recurrent theme of this article is the ability of law clinic attorneys to avoid most ethical problems simply by recognising the potential problem and taking minimal action prior to initiating the legal representation, such as redefining the student’s role in the case or obtaining the client’s informed consent.