Weigold, U H --- "The Attorney-client Privilege as an Obstacle to the Professional and Ethical Development of Law Students" [2006] LegEdDig 35; (2006) 14(Spec Ed) Legal Education Digest 3

The Attorney-Client Privilege as an Obstacle to the Professional and Ethical Development of Law Students

U H Weigold

(2006) 14(Spec Ed) Legal Education Digest 3

U St T L Sch, Legal Studies Research Paper No. 06–16, pp 666–721

Although they spend hundreds of classroom hours learning legal analysis in various doctrinal contexts, law students have only limited opportunities to learn other lawyering skills that are essential for practice. Their clients suffer the consequences. Among these critical lawyering skills are some that are learned chiefly by practice and experience rather than by theory alone: communication skills, client interviewing and fact investigation skills, client counseling skills, problem solving skills, and ethical judgment.

Despite the urgent need for additional experiential learning opportunities for law students, partnerships between law schools and practicing lawyers to provide hands-on training in essential lawyering skills have run into an unlikely obstacle: the attorney-client privilege rules. The very rules that are designed to protect the proper working of the attorney-client relationship may prevent law students from preparing themselves adequately to work with their future clients. The evidentiary privilege reinforces the attorney’s own professional duty of confidentially privilege reinforces the attorney’s own professional duty of confidentially, which encourages client disclosure and trust. Relevant to law students and legal education is the waiver of the attorney-client privilege that can occur when communications between the attorney and client take place in the presence of a third party who is not an attorney. Although there are compelling reasons — critical to the professional and ethical development of future lawyers — for distinguishing law students from other third parties with regard to the attorney-client privilege, the law largely ignores that distinction.

This article argues that the law of attorney-client privilege should treat law students differently from other third parties. The gap in the law that excludes law students from the attorney-client privilege represents a failure to support the direction and needs of modern legal education and impedes practical attempts by law schools to enhance the competence and ethical development of future members of a profession that is criticised frequently on grounds of competence and ethics.

In the course of evaluating the state of American legal education, the MacCrate Report provided an extensive analysis of the fundamental skills and values necessary for effective law practice. All fundamental lawyering skills relate to four basic values of the legal profession: (1) providing competent representation, (2) striving to promote justice, fairness, and morality, (3) honouring the profession’s duty to enhance the capacity of law and legal institutions to do justice, and (4) continuing to develop professionally. Thus ‘fundamental’ skills are those necessary for basic professional competence and those necessary to fulfill a lawyer’s ethical duty to promote justice.

The MacCrate Report identified ten key practice skills that every attorney needs: problem-solving, legal analysis and reasoning, legal research, fact investigation, communication, counseling, negotiation, litigation and alternative dispute resolution procedures, organisation and management of legal work, and the ability to recognise and resolve ethical dilemmas. Among these key lawyering skills are some that are learned well only in practice setting: communication skills, client interviewing and fact investigation skills, counseling skills, and problem solving skills. Fundamental lawyering skills include more than those necessary for technical proficiency. Lawyers also need ethical judgment and decision making ability. Lawyers must be able to identify ethical problems, determine how to act, and resist the pressure to act improperly. In fact, all of these necessary client-focussed skills are learned primarily by observation and experience. To be effective legal education should combine instruction in theoretical knowledge with repeated practice.

The dominant model of instruction at most American law schools remains traditional. Law schools place relatively little emphasis on teaching client-focused skills and ethical values, and formal American legal education typically ends without much required practical skills or ethics training. New lawyers have to learn these skills haphazardly on the job, often without the guidance of a mentor attorney. Formal standards governing legal education and bar admission impose few skills training requirements. Beyond law school, only a minority of jurisdictions require that graduates complete certain courses or skills training for licensing. In most states, law school graduates must pass only a bar examination and a character and fitness investigation before being allowed to perform all the functions of an attorney.

In addition to learning by hands-on practice and experience, students can absorb a great deal just by observing practicing lawyers at work with clients. The shortage of experiential opportunities in legal education contrasts sharply with those in medical education, which prepares students for another learned profession requiring both theoretical knowledge and practical skills. Each of the client-focussed practice skills is learned best by experience, and the earlier the better. Although the case method makes a law classroom more active than lecture for the reciting students, the ability to ‘think like a lawyer’ taught by the case method does not necessarily translate into effective client communication skills. Law students learn these communication skills by interacting with live clients and by observing an experienced lawyer during client meetings.

Because ethics rules focus on the relationship between the lawyer and the client, bench, bar, and public, students must learn how the rules work with the clients struggling with legal problems, students begin to understand an attorney’s role and client’s expectations, and to grasp the practical and ethical challenges of the rules and duties that will govern their professional careers. Students need practical ethical training to develop the reflective judgment necessary to wrestle with difficult questions.

Learning by experience, however valuable, can be difficult and inefficient if it happens without guidance. Working with a mentor can help a student acquire essential skills and professional values early and significantly reduce the risks to clients of being represented by a newly licensed attorney. Unfortunately, the number of opportunities for hands-on experiential learning and mentoring is limited at most law schools, mostly for economic reasons.

The bar itself has acknowledged significant shortcomings in legal education. The MacCrate Report found it unrealistic to expect even the most committed law schools, without help from the practicing bar, to produce graduates who are fully prepared to represent clients without supervision. The challenge for law schools is to make opportunities for experiential learning more widely available to students, and partnerships between law schools and the practicing bar raise a number of promising possibilities. The American Bar Association has encouraged law schools to be creative in developing instruction in professional skills related to a lawyer’s practice responsibilities, using the strengths and resources available to the school. The MacCrate Report, in turn, urged the practicing bar to live up to its responsibility of mentoring law students and new lawyers.

Partnerships between law schools and the practicing bar hold great promise for providing all students with relatively low cost experiential learning opportunities, but their success may be frustrated by a peculiar aspect of the attorney-client privilege rules. A strict reading of those rules prohibits the presence of unpaid law students in meetings involving confidential communications between lawyer and client, with few exceptions. Because the attorney-client privilege ordinarily does not apply to law students, the practicing bar may have to exclude mentored law students from client contact and experiential learning in those situations that could teach them the most about skilled and ethical practice. The attorney-client privilege is recognised in all fifty states.

The basic parameters of the privilege in many jurisdictions follow the instrumentalist formulation of the rule by John Henry Wigmore: where a client seeks legal advice from a professional legal adviser in that capacity, the communications relating to that purpose, made in confidence by the client, are at the client’s instance permanently protected from disclosure by himself or by the legal adviser, unless the protection is waived. Under this formulation, the problems in applying the privilege to law students arise from the requirements that the communication: must be made to a professional legal adviser, must be made in confidence, may not be waived (i.e., by the clients, given the presence of a law student), and the privilege must remain solely the client’s to assert.

Alternatively, the Restatement (Third) of the Law Governing Lawyers formulates the elements of the privilege more generally and requires a communication between privileged persons, in confidence, for the purpose of obtaining or providing legal assistance for the client. The corresponding elements at issue for law students in this formula are whether a law student is a privileged person and whether a communication is made in confidence if a law student apprentice is present during the communication. The courts’ interpretation and application of the other elements of the attorney-client privilege in either formulation do not pose special concerns for law students.

Thus, the issues relating to the attorney-client privilege that affect law students in experiential learning situations with real clients are: (1) whether a law student qualifies as a professional legal adviser or privileged person, (2) whether the client intended the communication to be confidential given the presence of a law student, or whether the student’s presence waives the privilege, and (3) whether the client-focused right to the privilege requires non-essential law student apprentices to be excluded from client conferences.

A law student ordinarily does not qualify as a ‘professional legal adviser’ or enjoy the attorney-client privilege. Courts have used bar admission as a threshold for deciding whether an individual qualifies as a professional legal adviser and is covered by the privilege. Thus, even a law graduate, if not formally licensed, ordinarily does not qualify as a professional legal adviser for purposes of the privilege.

Although the attorney-client privilege ordinarily applies only to licensed attorneys, i.e. those authorised to practice law in the jurisdiction, all states have now passed student practice rules that allow certified law students to perform the functions of attorneys in certain circumstances. Because some law students are authorised to practice law under these rules, the scope of the attorney-client privilege necessarily has been expanded to encompass those law students. Student practice rules are enacted primarily to encourage clinical programs and further the goals of legal education. Other goals included serving indigent clients and assisting state and governmental agency lawyers. The emphasis in most states’ rules is on promoting legal education.

Although all states now have a law student rule, only four states explicitly provide in their rules or rule commentary that certified students are covered by the attorney-client privilege: Arizona, Ohio, Washington, and Massachusetts. Despite the absence of explicit provisions extending the attorney-client privilege to certified law students in other states, such an extension of the privilege must be implied. Requiring students to adhere to professional conduct rules adds to the authenticity of their experiential learning. Additional safeguards of the client’s right to confidentiality from student legal advisers derive from the professional responsibility of the supervising attorney. Safeguarding client confidentiality to protect the client’s interests would make little sense without a corresponding extension of the attorney-client privilege to certified students. However, the scope of student practice rules is limited in all jurisdictions to only specific categories of eligible law students in sometimes narrowly defined circumstances.

The second requirement of the privilege with implications for law students is that clients must intend communications with their lawyers to be confidential. If unnecessary third parties are present, courts will presume that the client did not intend secrecy, and without confidential intent, the client waives the attorney-client privilege. The burden is on the party asserting the privilege to show that the communication was confidential and not waived. The exceptions to the third-party waiver rule include only those persons necessary to support the attorney’s representation of the client or those necessary to transmit the communication, because the presence of these parties does not negate confidential intent.

The codified attorney-client privilege rules in twenty-three states expressly extend the privilege to a ‘representative’ of the attorney. A representative typically is defined as one ‘employed’ to assist the lawyer in rendition of professional legal services. Three states’ rules extend the privilege specifically to ‘employees’ of the attorney instead. A representative or employee presumably includes clerks, stenographers, paralegals, investigators, and interpreters, but a few states’ rules identify more specifically to which of the attorney’s support staff the privilege applies. Privilege rules that cover a representative or employee of the attorney would include law students working for an attorney during a paid clerkship. The language of the privilege rules does not appear to cover law students in unpaid volunteer positions or in law school sponsored extern or mentorship programs. Nor does the privilege allow for the presence of law students during client meetings for purely educational purposes. In current attorney-client privilege jurisprudence, the privilege is client-focused and client-controlled. The privilege belongs to the client, not to the attorney. The client is not the only one who can assert the privilege, but the client is the only one who has the authority to waive it. The attorney may assert it on the client’s behalf. A corollary to this principle is that an attorney may not waive the client’s privilege by testifying against the client’s wishes.

It is in the interest of clients, individually and collectively, and of the proper working of the legal system — the underlying justification for the privilege to exist at all — to have skilled and ethical lawyers. However, the narrow client-centered focus in defining the parameters of the privilege, without regard to its effect on experiential legal education, impedes fundamental systemic goals.

The law of privilege was not meant to remain frozen in time. Courts have periodically reshaped privilege rules when necessary and appropriate, even though they remain conservative in defining the parameters of the privilege overall.

The legal profession has a duty to promote high standards of performance. Legal education builds the foundation, but law schools alone cannot carry the full responsibility for educating lawyers. Collaborations between law schools and the practicing bar could fill an urgent need to ensure basic competence in lawyering skills before a student graduates from law school.

The need for additional experiential learning and mentoring during law school is more important than ever before, because opportunities for hands on learning in an authentic setting are severely limited in law schools, meaningful mentoring by senior attorney in the early years of practice is declining, and the loss of mentoring is having a damaging effect on the professional skills and ethics of new lawyers. Rulemaking bodies in all jurisdictions should amend their law student practice or attorney-client privilege rules to allow the presence of law students, under the supervision of a licensed attorney, during confidential client communications.