Feeley, B --- "Exploring the Use of For-profit Placements in Law School Externship Programs" [2007] LegEdDig 34; (2007) 15(2) Legal Education Digest 44

Exploring the Use of For-profit Placements in Law School Externship Programs

B Feeley

[2007] LegEdDig 34; (2007) 15(2) Legal Education Digest 44

NYLS Clin Inst Research Paper No. 06/07–12

The first question in determining the appropriateness of for-profit placements in law school externship programs is whether any laws or rules either prohibit or affect a school’s ability to allow for-profit placements for credit.

American Bar Association (ABA) Standards state that the ‘unique challenges for the maintenance of educational quality’ require ‘particular attention from the law school and the ABA Accreditation Committee’ for field placement programs. Although ABA Standard 305 specifies rules for field placement programs regarding supervision, credits, and other program requirements, it does not mention the types of placements allowed. Several subsections of Standard 305 may indirectly affect programs wanting to add private placements to already established public interest placements, but nothing specifically prevents for-profit placements. American Association of Law Schools (AALS) externship regulations also are silent on limiting types of placements.

Federal statutes intended to protect individual workers also may affect decisions regarding participation of for-profit firms in externship programs. Although issues raised under these laws are not limited to for-profit organisations, the Fair Labor Standards Act of 193812 (‘FLSA’) in particular is a concern to some for-profit organisations that might otherwise want to participate in an externship program. The FLSA requires employers to meet minimum wage standards for their employees. Some employers are concerned that allowing unpaid interns to work violates the provisions of the FLSA, and some have established policies that unpaid interns must receive school credit in order to work at their offices. The Wage and Hour Division of the Department of Labor, in several opinion letters, has established six criteria to determine whether or not trainees or students are ‘employees’ within the meaning of the FLSA and covered by the minimum wage requirements. The criteria are: (1) The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school; (2) The training is for the benefit of the trainees or students; (3) The trainees or students do not displace regular employees, but work under their close supervision; (4) The employer that provides the training derives no immediate advantage for the activities of the trainees or students, and on occasion his/her operations may actually be impeded; (5) The trainees or students are not necessarily entitled to a job at the conclusion of the training period; (6) The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Although no rules specifically prohibit for-profits in externship programs, many schools prohibit the practice.

Of course, it has long been recognised that experiential learning in a supervised law office environment can benefit law students seeking to learn skills, substantive law, and professional ethics. The ‘second wave’ of the clinical education movement emerged in the 1960s and the number of law school clinics grew significantly from the 1960s through the 1990s with significant funding from the Ford Foundation and the Department of Education through the Title IX Law School Clinical Experience Program, both requiring service to indigent clients as a requirement for eligibility. Goals of this second wave of clinical education included skills training and providing access to justice for traditionally under-represented clients. During this time, a large body of clinical teaching methodology emerged. Combining classroom instruction with practical training became a respected and well-recognised method of teaching skills, substantive law, and professional ethics. Although the clinical movement began with mostly ‘in-house’ law school clinics, externship programs placing students in established government, judicial, and non-profit law offices with supervision of non-faculty attorneys became a recognised method of providing clinical education.

Offering for-profit placements for law school credit expands otherwise unavailable options to some law students. The practice of law has evolved and changed over the last half of the twentieth century. Areas of the law that were non-existent in the early 1900s grew dramatically. Many lawyers now pursue careers in intellectual property, international law, entertainment law, and financial services. Often the best opportunities for externships in these newer practice areas are in private law firms or companies. Certain externship program goals and benefits such as exploring career options and substantive law training can be better met by working in the particular field of interest.

There may be some financially disadvantaged students who would be unable to gain the benefits of certain externships if not for expanded options of an externship program. The reality of today’s ‘intern economy’ is that there is pressure on students to be competitive for jobs after graduation by building resumes, contacts and work experience in unpaid internships. This places an undue burden on less wealthy students or older students with more financial responsibilities who are not able to volunteer their time because of time restraints imposed by course work and job responsibilities. Allowing these students to replace a course or two with an unpaid internship for credit may permit these students to better balance their education and personal financial responsibilities.

Unpaid internships for credit expand valuable educational options to other students who otherwise are not competitive for certain work experiences. Offering school-sponsored programs with school contacts in school-approved placements opens doors and educational experiences to otherwise less competitive students. The same is true for students who attend law school in more rural areas with limited public interest opportunities or students who attend less prestigious schools located in areas with many competitive law schools.

Even if students have the financial means and opportunities to participate in unpaid externships as volunteers on their own, there are valuable educational benefits to do this while participating in a school sponsored externship program. Clinical education pedagogy stresses reflective guidance to enhance the educational experience of students. All externships for law school credit require a faculty supervisor in addition to a field supervisor. Methodologies to promote guided reflection include journal writing, student meetings with faculty and field supervisors, site visits, other faculty contact with field supervisors, and class discussions that encourage students to look critically at their work, their placement, and the legal profession. In addition, strict rules imposed by the ABA and law schools maximise the educational experience by requiring productive and educational legal work and prohibit student time from being spent on clerical and other non-legal tasks.

One very legitimate concern of expanding externship placements beyond public interest and non-profit placements is the potential lost opportunity to raise student awareness of challenging careers in the public interest sector. A unique opportunity to raise awareness of the private bar’s social justice and ethical responsibilities, however, presents itself in an externship program’s expansion into the for-profit world.

A clear benefit to including for-profit organisations in law school sponsored externship programs is the expansion of the network of law school alumni and members of the bar that participate in the training of lawyers and engage in meaningful on-going contact and discussion with law school faculty about issues affecting the legal profession. Several recommendations made in the MacCrate Report are for law school educators and the bar to work together on issues regarding the training of lawyers and the bar’s responsibilities to meet social justice and ethical concerns of the profession.

Very legitimate concerns have been raised about law schools permitting unpaid internships at for-profit organisations. Moral concerns about exchanging free labour in the name of an educational experience were raised even with the old apprentice system of law education. Today, concerns of potential exploitation remain. Law schools can be seen as helping for-profit law firms and companies, some of which can well afford to pay law student interns, profit from the unpaid labour of students, many of whom are overburdened with debt.

Another concern is that unpaid internships may take away paid opportunities for students. If there were no unpaid interns, for-profit organisations might hire students instead to meet their workload demands. This may have more impact in small town or rural environments where job opportunities are already limited. Again, this is particularly troubling because the high cost of tuition and ever increasing cost of living has put many students into serious debt.

Expanding externship program placements to for-profit organisations also raises concerns that clinical education is moving away from its historical social justice goals of providing representation to the under-represented and encouraging law students to engage in public interest work.

Some political and pragmatic difficulties for externship clinicians also arise with for-profit placements. A law school potentially could receive pressure from influential alumni to provide their offices with interns. Externship clinicians may need to struggle with criteria to determine in which offices a limited number of students should be placed. Concerns regarding the potentially competing interests between billable hours and student supervision can be an issue at some for-profit organisations. Some clinicians have concerns about the limited type of work available to students in for-profit organisations either because of student practice rule limitations, or stereotypical beliefs that private lawyers will provide less meaningful work with poorer supervision than public interest attorneys. Additionally, increasing the breadth of placements places added strain on faculty resources allocated for externship programs because of additional time necessary to develop new placements in these areas, to supervise students in more varied practice areas, to advise and/or supervise additional students who may be interested in the newer placements, and to maintain contacts with a wider range of field placement supervisors.

An externship program can expand to for-profits if this helps meet the academic goals or curricular needs of the law school, and certain limitations and guidelines can be adopted to either eliminate or minimise potential drawbacks.

For all externships, the law school should establish goal-oriented criteria in approving and evaluating placements. Various limitations can be imposed to meet the school’s criteria. For example, a law school can limit the use of for-profit placements only to those areas of the law where the opportunities in the public sector are limited, or where the faculty determines that the best opportunities to meet the program’s goals are in the private sector.

To address concerns regarding exploitation, for-profit placements should be limited to corporate offices that do not bill or private firms that agree not to bill clients for student work.

A law school also can choose to limit work in for-profits only to organisations with a demonstrated commitment to pro bono work or can consider limiting students’ work in for-profits to pro bono projects. To address concerns about eliminating paid opportunities, placements can be limited to organisations that traditionally do not employ students. Some programs may choose to limit for-profit placements only to offices more likely to consider their graduates for permanent employment.

There are other possible means to control the credits earned at for-profit placements. Some schools choose to limit the number of credits allowed in externships in general or the number of credits allowed in for-profit placements. Some schools connect these internships to a particular substantive law class which helps ensure that the for-profit externships are limited to certain subject areas and are more focused on the school’s curricular needs.

To address concerns of educational quality in for-profit placements, the school must maintain strict guidelines for student work and supervision. In keeping with Department of Labor requirements, the law school must ensure that the benefit of the experience goes to the student. The law school of course must assign a faculty supervisor for the extern, and that faculty supervisor or externship clinician should take steps prior to and during the externship to ensure that the major benefit goes to the student and not the placement.

For-profit placements also provide other opportunities for law schools to supplement the education of students who are contemplating a career in private firms. For example, student discussion with field supervisors on billing practices can be supplemented with readings on responsible and ethical billing practices; students’ first-hand observations of the demands and pressures of private practice can be supplemented with class discussion on office management skills and/or balancing professional obligations and personal life; and observing the challenges of a general solo practice or small firm can be supplemented with a journal assignment reflecting on the need to develop mentoring relationships and other connections within the legal community. Steps should be taken during the externship to ensure that the educational goals of the student are being met. Such steps to ensure quality include site visits and other faculty contact with field supervisors, written evaluations from field supervisors and students, student journal writing, faculty meetings with students, and required student meetings with field supervisors. If an approved field supervisor does not meet expectations during an externship, the faculty supervisor should work with that field supervisor and, if progress is not made, that attorney should not be approved as a field supervisor in the future.

For-profit placements can be appropriate if they help meet the needs and/or goals of the law school. As the legal profession changes, some externship programs previously restricted to non-profit placements may expand into the world of for-profits. Although no rules prohibit use of for-profits in law school externship programs provided certain criteria are met, clinicians should examine the pros and cons of allowing for-profits in evaluating the appropriateness of for-profits placements in their externship programs. If it is determined that allowing for-profits would help meet their goals, externship clinicians should examine ways to restrict the use of for-profits to meet their schools’ specific needs. Given appropriate guidelines, the use of for-profits in externship programs can expand educational and professional development opportunities for students, law faculty, and the private bar.