Teaching Ethics During the Clinical Externship Experience

Erica M. Eisinger
Director of Clinical Education
Wayne State University Law School

2000 AALS Clinical Law Conference
Albuquerque, NM
May 7, 2000

Teaching about ethics in externships isn't easy. In this session, I talk about some of the difficulties - but also some of the special opportunities - that externship teaching poses for ethics instruction. The principles that should guide our ethics teaching are drawn from the comparative advantages (and disadvantages) of the externship setting. The heart of ethics instruction lies in the students' accounts of ethical dilemmas in their journals. I select examples of ethical issues - broadly defined to include more than mere rules compliance -- that are drawn from students' journals in my Judicial Externship class (at Wayne, we call them "internships"). Finally, I conclude with a selected bibliography on ethics teaching in externships.

I. The Special Difficulties of Teaching Ethics in the Externship Setting

Most clinical teachers include teaching about ethics as among the principal goals of clinical teaching. Externship teachers are no exception. Externship teachers ask students to talk about ethical issues in their journals; we include discussions of ethics in the small, but growing, set of texts devoted to externship teaching; we teach about ethics in our externship classes; and we address ethical issues in the clinical scholarly literature on externships.

Teaching about ethics in an externship setting poses at least three unique problems. First, to teach students to recognize ethical issues as they arise in practice is difficult enough in any clinical setting, but the problem is particularly acute for externship teachers, because the ethical "teaching moments" for externships occur outside our presence. We're not where the ethical action is. We're dependent on students' reporting ethical issues through their journals and classroom discussions. How can we get students to recreate those ethical teaching moments back in the classroom? And, a related question, how can we enlist the externship field supervisors in the task of educating law students to recognize and handle ethical issues as they arise in practice?

Second, despite our best efforts, externship teachers can't always control the quality of supervision in some placements to assure that the student's field supervisor models exemplary ethical conduct. Students who are focused on fitting in and pleasing their supervisor may assume that they're observing ethical practice -- even if they're not. So, even if ethically questionable conduct occurs during the externship, the student may not be equipped to see it. How can we get students to question the assumption that just because "it's done" doesn't make it ethical?

Finally, not all students in all externships have necessarily had a course in Professional Responsibility. We cannot fairly ask students to recognize issues that implicate rules they haven't seen. In addition, for some specialized externships, a course in Professional Responsibility may not be enough. For example, judicial externs should be familiar with the Code of Conduct for Judicial Employees, which governs federal judicial law clerks and externs (and is a valuable guide for state court judicial externs). Judicial externs should also be exposed to the Model Code of Judicial Conduct, just as prosecutor and defender externs should, similarly, have familiarity with specialized ethical codes of conduct. Not all PR courses cover such specialized material.

II. The Special Advantages for Ethics Teaching in Externships

But teaching about ethics in externship classes also poses unique opportunities. In fact, each of the problems I noted above can be turned to advantage - a glass-is-half-full, rather than half-empty, approach. We're not there to help students spot ethical issues in context? That just makes all the more real the difficulty students face in recognizing ethical issues on their own. Students can't assume they're seeing the finest models of ethical conduct? This, too, dramatically reinforces the lesson of law practice - to assume nothing. Our students haven't studied PR? This, too, can be a blessing in disguise - because it can teach students to widen the definition of ethical practice to encompass more than compliance with the rules.

Teaching about ethics in externships also allows us to tap into the advantages of clinical methodology. As clinicians we always try to make our students active in class - we believe students learn best by doing. So ethics instruction through problems, role-plays, and participatory learning is a natural.

III. Principles of Teaching about Ethics in Externships

The recognition of the unique problems and advantages of externship teaching leads to the following set of principles of ethics teaching in externships classes.

1. Use the students' experiences as the text. With the students' permission, their journal entries become the problems for class discussion. There's nothing artificial, exaggerated, hypothetical, impersonal, or irrelevant about these problems. Students can't say, in response to a problem, "that can't happen in real life." Hearing other students' journal entries sparks students to recognize similar issues they had overlooked.

2. Use the students' experiences regarding topics that they have not necessarily identified as ethical to explore ethical issues. Finding ethical issues embedded in discussions that students have not identified as posing such issues opens up an important teaching moment. For example, in response to a journal entry about delay in the legal system, a student discussed an upcoming hearing in a disability case and revealed that her supervisor had told the ALJ that she needed to reschedule the hearing because her client was having anomalous headaches. In truth, the attorney needed to reschedule the hearing because she was unprepared. This anecdote unwittingly reveals a host of ethical issues from the duty of candor before the tribunal (a rules issue), to the need for better time management skills (a professionalism or workplace issue), to the broader issue of personal integrity (an ethical issue, broadly defined).

3. Use the students' experiences to widen the definition of ethical practice. We've come to realize that compliance with the formal rules that govern attorney conduct doesn't make a person an ethical lawyer, just as compliance with the criminal law doesn't make a person an ethical person. Ethics means teaching students how to act ethically in their work, even when they aren't required to do so by any rule (Schiltz 1999), and even when it may be contrary to their self-interest to do so (Burns 1996). Ethics shows up, as Patrick Schiltz says, in the "hundreds of little things" that lawyers do, almost unthinkingly, every day. (Schiltz at 911). For example, time-keeping, for Schiltz, is an ethical issue -- not just as it implicates the obligation not to pad time records, but also as the upward pressure on billable hours underscores the ethical imperative to lead a balanced life. The externship provides some students with their first experiences of keeping time records - and it become a moment to imprint values of ethical practice that go beyond simple conformity with the rules.

4. Use a stepped process. Ethics teaching should build and be a continuous process. I begin by asking students in their first journal entries to write about an ethical issue they've encountered or, if students believe they have yet to encounter an ethical issue, I suggest that they talk with their supervisors -- usually the judge's senior or permanent law clerk in the Judicial Externship class -- about an experience when they encountered an ethical issue. I deliberately do not define "ethical." I then ask students to locate appropriate discussions of the issue in the Code of Conduct for Judicial Employees or other appropriate set of rules.

The early discussion of ethical issues serves at least four important functions. First, it signals to students the importance we attach to ethics - it is the first thing we teach. Second, it instructs students about certain core ethical concerns they need to be aware of immediately -- issues of confidentiality and conflicts -- before, not after, they may get into trouble. Third, it teaches students or reminds them that there is a body of law that purports to speak to these issues. Students may be completely surprised to discover that their concerns - can they work for a political candidate while externing for a judge? can they work in a law firm while externing for a judge? can they talk to friends or relatives about the work in chambers? - are addressed in the code. Many students comment in their evaluations at the end of class that the initial discussion of ethical issues was invaluable. Finally, by not limiting "ethical" to an issue addressed by the code, many students come forward with examples that encompass a broad definition of "ethics" to include issues of professionalism, bias in the judicial system, job satisfaction - the full panoply of issues that I want the term "ethics" to embrace.

I then re-enter ethics topics (broadly defined) throughout the remainder of the semester whatever the assigned topic of the class may be. A topic such as bias in the court system lends itself neatly, of course, to a continuation of the ethics discussion. So, too, does the journal topic that asks students to write about "the lawyer I admire" or "the lawyer from hell." But even topics that appear remote, for example, the topic of writing bench memos, encompasses embedded ethical issues -- for example, as we discuss the ethics of a student citing cases in her memo that she pulled from a party's brief, but did not read.

Finally, we return to the explicit topic of ethics at the end of the semester when I again ask students to write in their journals about ethical issues, this time explicitly defined to encompass the "little things" that go into ethical practice and ethical living. The discussions are lively and, students say in their evaluations, among the most meaningful of the semester.

Journal Excerpts from Judicial Externs

• You extern in a chambers where lunch is a "culture." Sometimes, the lunch discussions involve the law, but not always. Sometimes the judge just talks about the kinds of books she reads or the television shows and movies she watches. You're required to note on your logs the time you spend on projects that further your legal education. Can you count the lunch hours in your logs?
• You've encountered some questionable use of case law in a brief supporting a directed verdict. The first time, you found that the attorney "stretched" the facts of one of the cases he used. A second time, the attorney said that a particular case stood for a particular proposition when in fact it did not. You don't have time "to be a baby sitter for every case cited." What should you do?
• You are interested in a future political career. While externing for your judge, you would like to work for one of the presidential candidates and be a delegate to the state party convention. May you do so?
• You see a friend of yours in the jury pool. What, if anything, should you do?
• You begin work on a bench memo only to find that one of the parties is represented by the law firm you are working for next summer. What, if anything, should you do?
• You've been assigned a pro se complaint where the plaintiff has submitted literally hundreds of pages of material, often unintelligible. You can't imagine that this pro se individual could state a cognizable claim, much less conduct a trial. What should you do?
• You need a writing sample for a job interview. Your best writing in is an opinion you drafted for the judge. May you use the opinion as a writing sample?
• One of the attorneys is doing a terrible job at trial - he breaks every rule of Trial Advocacy: his cross-exam is longer than the direct and elicits harmful information, and he is generally so ineffective that the judge and the jurors are rolling their eyes (when they aren't actually asleep). What should you do?
• Your judge scheduled a settlement conference and required the attorneys to be in his courtroom at 8:30 a.m. Both attorneys agreed to appear but, on the day of the hearing, one of the attorneys failed to appear and didn't inform the judge that she would be late until after 10:00 a.m., citing as her excuse, an emergency appearance in another court. Later, you learn from a classmate who's externing for another judge, that this attorney was in that judge's courtroom that very morning at 8:30, on a matter that was scheduled long before your judge scheduled his hearing. What should you do?
• During a trial of a police brutality matter, the judge has ruled, outside the jury's presence, to avoid possible prejudice, that at no time is the jury to see the prisoner/plaintiff in handcuffs. In the courthouse cafeteria, while telling a fellow extern working for another judge about the ruling, you suddenly see that one of the jurors was sitting near you and overheard the conversation. What should you do?
• The judge instructs you to contact the attorneys on a case and request additional information. One of the attorney is gratuitously rude and abrupt. What should you do?
• In addition to your externship, you work a couple of days a week at a law firm. Do you need to tell your judge about this work? May you work on matters that the law firm has pending in the same court, but not before your judge? May you work on a motion for your law firm that is pending before your judge as long as you don't work on the matter for the firm?

Selected Bibliography

• Bloch, Karen. Subjunctive Lawyering and Other Clinical Extern Paradigms, 3 Clinical L. Rev. 259 (1999).
• Burns, Robert. Legal Ethics in Preparation for Law Practice, 75 Neb. L. Rev. 684 (1996).
• Caplow, Stacy. From Courtroom to Classroom: Creating an Academic Component to Enhance the Skills and Values Learned in a Student Judicial Clerkship Clinic, 75 Neb. L. Rev. 872 (1996).
• Cochran, Rebecca. Judicial Externships: The Clinic Inside the Courthouse 10-51 (Anderson, 2d ed., 1999).
• Eyster, Mary Jo. Designing and Teaching the Large Externship Clinic, 5 Clin. L. Rev. 347 (1999).
• Gordon, Robert. The Ethical Worlds of Large-Firm Litigators: Preliminary Observations, 67 Fordham L. Rev. 709 (1998).
• Moliterno, James E. Legal Education, Experiential Education, and Professional Responsibility, 38 Wm. & Mary L. Rev. 71 (1996).
• Ogilvy, J.P.; Wortham, Leah; Lerman, Lisa G. Learning from Practice 49-78 (West: 1998).
• Ogilvy, J.P. Introduction to the Symposium on Developments in Legal Externship Pedagogy, 5 Clinical L. Rev. 337 (1999) (citing bibliography).
• Rabouin, E. Michelle. Walking the Talk: Transforming Law Students into Ethical Transactional Lawyers, 9 De Paul Bus. L.J. 1 (1996).
• Schiltz, Patrick.. On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871 (1999).