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Programs
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Law Clinic Directors' Workshop Program Workshop on Clinical Legal Education Program
Law Clinic Directors' Workshop Program 6:00-8:00 p.m. 8:45-10:15 a.m. Mark N. Aaronson, University of California, Hastings In our choices about clinic design and administration, we send important messages to our students about professionalism. In this plenary session, we will begin to discuss some of the administrative issues that affect every clinic - file maintenance and destruction, case management, conflicts of interest, hiring and maintenance of administrative staff, physical design, administrative staffing (receptionist or secretary pool or paralegals), administrative work flow (who signs checks, reviews budgets, assigns duties, etc.), escrow accounts.
10:15-10:30 a.m. 10:30-11:45 a.m. In small groups, we will continue our discussions about professionalism in clinic design and administration.
11:45 a.m.-1:30 p.m. 1:30-2:45 p.m. Long-Term Planning Within Clinical Programs: Is It Possible?
(Directors Only)
Susan L. Kay, Vanderbilt University Clinic directors must confront difficult tasks in developing and implementing long-term plans for a clinical program - choices that affect everything from mission to staffing. Academic freedom means that faculty members teaching in the clinic have the right to design their courses and, often, to choose the very structure of their clinics. Funding must often be obtained from multiple sources to permit the clinic to serve the student population seeking to enroll. In this plenary session we will begin our discussion of these issues and the choices made in different clinical programs and the consequences of those choices.
Clinic Administrators: What Role Can/Do We Play in Teaching Professionalism (Clinic Administrators Only)
Elaine Franchini, Albany Law School This track will focus on the role of the Clinic Administrator in teaching and working with faculty/staff/students on professionalism. What role can and should the Clinic Administrator play in making the Clinic run as smoothly as possible while providing a learning experience to the students. How do we assist the students in understanding how a "law office" operates?
In addition, there will be direct focus on the day to day duties of the Clinic Administrator from the managerial aspect of running a clinic program. For this presentation, we would ask conference attendees to share information about how they teach professionalism within their clinics by providing specific examples or sharing techniques.
2:45-3:00 p.m. 3:00-4:00 p.m. In small groups we will continue our discussion of these issues and the choice made in different clinical programs and the consequences of these choices. Workshop on Clinical Legal Education Workshop on Clinical Legal Education Program 2:00-8:00 p.m. 5:00-6:30 p.m. 6:30-8:00 p.m. 8:45-9:00 a.m. Welcome Introduction and Overview of Issues
Minna J. Kotkin, Brooklyn Law School, Chair, Planning Committee for AALS Workshop on Clinical Legal Education
9:00-10:30 a.m. Stephen J. Ellmann, New York Law School Moderator: Steven H. Hobbs, The University of Alabama
The concept of professionalism has changed over time, has multiple meanings in different contexts and for different audiences, and remains indeterminate and contested. In this plenary, clinical and legal ethics scholars will explore the multiple meanings and shifting boundaries of professionalism. The panelists will approach the idea of professionalism from the perspective of the clinical teacher trying to impart to students an understanding of the complexities of the concept, a critical perspective on the ways the idea is used in different situations, and the implications that different understandings of the concept have for the decisions that the students must make throughout the course of client representation. For example, for whom and in what contexts does professionalism mean little more than civility? How are the duty and value of zealous advocacy related to professionalism? What are the tensions between zealous advocacy and civility? How are the values implicated in the concept of professionalism related to a commitment to the value of access to justice? Are commitments to diversity and nondiscrimination components of professionalism? Can the ideas and practices of professionalism operate in some contexts as a form of elitism? What is the role of clinical programs in working to shape current ideas of professionalism and in transmitting views of professionalism to students? 10:30-10:45 a.m. 10:45 a.m.-12:00 noon Curricular Works in Progress "Family Law Mediation," A Course with Skills and/or Clinic Component. "Criminal Advocacy: Seminar and Practicum," A Seminar with Externship Component.
Learning MacCrate Skills and Values in Different Contexts Report on a recently completed analysis of an empirical study comparing learning along with the MacCrate Skills and Values list in stand up courses, clinical courses, externships, and summer employment.
The Cultural Dimensions of Competence Rules of professional conduct are understood generally to set standards of competence relating to aspects of lawyering such as legal knowledge, problem solving, advocacy, analysis, intellectual ability, and practice management.
What other knowledge is required in order for lawyers and law students to be competent with respect to issues of culture, race, or disability? What may we learn from other disciplines and professions with respect to this aspect of competence?
How do clinical legal education programs explore these aspects of competence and challenge students and instructors to engage in the development of cross-cultural and ability awareness as a professional obligation?
Liar, Trickster, Deceiver: When Zealous Advocacy and "Professionalism" Appear to Collide Students are routinely confronted by depictions of lawyers in the popular culture as either Machiavellian, unscrupulous, and sleazy (the "Jackie Chiles" character on Seinfeld) or morally superior "do-gooders" (Sam Waterston in "Law and Order"). In the clinic, students face the realities of practice and have to figure out how to zealously advocate for individual clients in the face of seemingly conflicting ethical and moral values. This session will explore ways in which clinical teachers, in both civil and criminal clinics, can get students to examine their misconceptions about "professionalism" and abide by the demands of the adversarial system.
Models of Teaching Legal Ethics This concurrent session will consider whether students learn legal ethics in a different and more nuanced way if the teaching settings are clinical having ethics as a substantive law focus or a seminar focused on theories supporting or challenging the adversary system, drawing on students actual practice experiences (whether from clinical work, internship, or paid work, and whether private practice or public interest). The three models presented are: (1) a clinic in which students represent clients in administrative ethics hearings, (2) a seminar on ethics, and (3) a clinic in Australia based in a legal aid organization.
Ethics Clinic: Students in the ethics clinic represent people who have filed ethics grievances alleging that an attorney has violated Connecticut's Rules of Professional Conduct. Students prepare and present cases before disciplinary grievance panels. Students prepare briefs and memoranda, making opening and closing arguments, and conduct direct and cross-examination of witnesses and respondent attorneys. Students are focused on the substantive law of ethics as well as their own ethical conduct. The instructors hypothesize that this system creates a particularly intense learning environment for students to learn about ethics-both "legal ethics" and the moral questions that they will grapple with in practice. Additionally, students are faced with intriguing issues of identification. As developing lawyers, they may empathize both with their clients and with the grieved lawyer, and will need to address those potentially competing sympathies.
Ethics Seminar: Students in the ethics seminar consider various theories in support or challenge of the adversary system, including whether the adversary system calls for role morality divorced from personal morality. In the course of theory discussions, students are asked to consider the validity of the different theoretical models in light of their own practical experiences. By moving between theory and practice, students are encouraged to consider the broader, systemic dimensions of ethics and the pervasiveness of ethics in one's daily law practice. Students are also asked to craft either a pro bono project they will implement while working at a law firm (during a summer or upon graduation) or a public interest project they will undertake (as part of the law school's clinical program, during the summer or upon graduation).
The third model is a clinic (in Australia) based within a statutory legal aid organization in the neighborhood of the university with clinical supervision provided by the faculty. This clinic has as its objective the study and experience of the ethical dimension of legal practice and the lawyer-client relationship. Students conduct legal work for clients of the office within a student clinic, work with the legal aid lawyers on their cases and assist the duty lawyers at court. The focus of each day and the legal work performed is the ethical duties illustrated. The work is the vehicle for analysis of the lawyer-client relationship. Group sessions each day are a forum to consider wider issues of ethics and classroom sessions on campus provide a theoretical framework for consideration of ethical practice.
The moderators will give examples of student experiences in each setting for the group to discuss and test whether the above models are helpful in teaching legal ethics.
Towards an Ethic of Global Responsibility: Professionalism and International Human Rights Lawyering Clinical legal education has its roots in teaching and working for justice: exposing law students to disparity in power and rights, fostering in them a sense of responsibility for using the law to challenge injustice, and providing them with tools to equip them for the task. International human rights clinics, and some domestic clinics, seek to globalize the original social justice mission of clinical legal education. They do this by contributing to the promotion and enforcement of global human rights norms through policy-oriented projects and through representation of individuals and groups. In so doing, these clinics provide students with opportunities to experience social justice lawyering in the transnational realm.
The AALS itself highlighted the importance of the growing transnational public order with this year's Annual Conference, raising seminal questions such as: How does globalization affect the way U.S. lawyers think about justice and rights? What role will lawyers have in contributing to greater human dignity and happiness in this changing environment? What is our role in preparing them for this work? And of course, how can an ethic of global responsibility be most effectively taught?
The globalization of clinical legal education holds great potential for enriching our teaching about ethics and values. Our objective for the session is to explore the unique contributions that international human rights projects can make to this endeavor, and to exchange information regarding different approaches taken by clinics throughout the country. Incorporating international law norms into domestic advocacy, recognizing the direct impact on communities abroad that our students will have through their professional and lifestyle choices, and fostering awareness of the vulnerability of activist lawyers in other countries, and ethically serving distant clients are among the values that international human rights cases can instill in our students. Participants will also discuss what ethical standards might govern international human rights advocates.
Addressing Cultural Issues in Community Lawyering This session will provide a forum for discussing the ethical issues in how lawyers, when acting as advisors to community groups, should deal with their status as cultural outsiders when they attempt to advise those groups on process and on the accommodation of individuals' voices. The issues differ from those faced by representatives of classes in class action litigation, where the wishes of many individuals may be compressed into a particular configuration to support the case theory of the "class." The situations we wish to address also differ from those in which lawyers represent individuals whose goals may intersect with those of their communities in complicated ways. For lawyers representing groups in communities, the task may include assisting those groups to organize themselves formally to create mechanisms for articulating problems and priorities for addressing them. The issues then multiply: is there a leadership in place; does she/ they speak legitimately for the constituents; and should the lawyer insist on traditional westernized democratic processes for choosing leadership and requiring the leadership to be accountable to the membership, through mechanisms such as monthly meetings and routine outreach? Recent scholarship, and scholarship-in-progress, presents a range of views on how lawyers should address these issues: from favoring a reconciliation of individual voice with enhancement of the group's cohesion and with insistence on democratic processes, to conditioning that insistence on the type of case and client, to disputing that lawyers can make assumptions about what "representativeness" means at all.
These are issues of great importance to those who represent neighborhoods, neighborhood associations, and other groups that labor on behalf of their communities. "Cultural incompetency" in community lawyering be racial or ethnic or class based; some of it comes from unfamiliarity with group dynamics that may have been laid down for years. We have no real way of knowing at the outset that our notions about the best way for a group to constitute itself are true, and we cannot assume that the racial or ethnic or economic makeup of a group may or may not have an impact on whether "parliamentary procedure" or consensus or majority rule are the most beneficial. Our program will address these questions, with the benefit of insights of legal workers in Canada who represent indigenous peoples and who organize individuals marginalized by mental health labels and experiences of institutionalization, as well as of those in the U.S. who also struggle with the dangers of practicing cultural incompetency in any neighborhood setting.
The Challenges of Working with Social Workers and Other Professionals in the Clinic The Advocacy Clinic at the University of Tennessee College of Law has started a new project this year where two social work students supervised by a social work professor became part of the team representing clients in some criminal and civil cases. In this session we will discuss the professionalism issues raised by this arrangement, and explore the challenges faced by this and other clinics in similar situations.
Three big issues jump out - first, the difference between the ethical/regulatory obligations of social workers and lawyers (most notably social workers' mandatory reporting requirement versus lawyers' client confidentiality). Second, what message about being a lawyer do we send the law students by having social workers involved? Are we propagating a vision of lawyering/professionalism that limits legal work to court-related activity, and broader efforts at improving the clients' lives to "social work." Or are we broadening the role of the lawyer by involving a new layer of expertise and help? Third, there are questions about the disparate goals/methods of social workers and lawyers. Is the goal to empower the client? Does that goal conflict with putting a plan in place so that we can achieve a particular result in litigation. We will talk about the clash of cultures and differing professional approaches between the worlds of law and social work.
The involvement of social workers in legal clinics implicates both the narrow definition of "professionalism" (are we complying with the regulations that govern lawyering) and broader ethical/role questions, and we plan to engage in a discussion about these issues and ideas in the session.
Teaching Sarandon, Carver and Adams: Legal Professionalism in the Media Films, fiction and cartoons portray images of lawyers and legal problem-solving which inspire both introspection and rich discussion about the role and function of lawyers. This workshop will describe ways to use print and screen media to teach professionalism and professional self-development. These media offer useful counterpoints to our ethical and legal aspirations (and minimums); important narratives about archetypes, roles and identities of lawyers; object lessons in good and not-so-good lawyering; and exposure to the tragic, the comic and the slapstick in our work. They also allow rich comparison of the persuasive methods of lawyers with the communicative tools of artists. We will demonstrate several class exercises based on cartoons, short stories and film clips. We will also identify obstacles to using media with students and ways to overcome them. Our discussion will cover classroom, simulation, and clinical contexts. Our materials will include a bibliography of films, fiction, and cartoons.
Teaching Ethics as Empowerment: Access to Justice Lessons Learned from Ethics Centers
The Role of the Law School and University Administration in Clinic Case Decisions This session will discuss the appropriate role of law school and university administrators in law clinic case intake and strategy decisions. Rare is the clinic that has not been ordered to explain or defend its actions, either in undertaking a case or in pursuing a certain legal strategy on behalf of a client, to a law school dean, faculty committee, or university official. Some clinics must even submit their proposed cases for prior review, or even prior approval, by non-clinic law school officials. These actions raise serious questions of legal ethics and academic freedom. Participants will include two clinical professors, Professors Connolly and Schurtman, and a law school dean, Dean Harbaugh, with relevant experiences with the role of administrators in clinic case decisions.
12:00 noon-1:45 p.m. Allan A. Parker, Barrister and Solicitor, British Columbia
Moderator: Katherine R. Kruse, University of Nevada, Las Vegas
Allan Parker has devoted his legal career to the legal needs of poor people in British Columbia. He has worked for over twenty years for the Legal Services Society, both as a staff attorney and as client services manager. He has been active in numerous bar associations, currently serving as Co-Chair of the Poverty Law Section of the British Columbia Branch of the Canadian Bar Association, and is a board member of the Pro Bono Law, British Columbia.
In the spring of 2002 a remarkable series of events unfolded in British Columbia. As part of a budget-cutting initiative, the Attorney General closed 24 courthouses in British Columbia, introduced legislation to change the mandate of the Legal Services Society to make previously mandatory legal aid service optional, and diverted funds from lawyer trust accounts away from legal aid. In an overwhelming response, the Law Society of British Columbia, which is the governing body for the British Columbia legal profession, held a special general meeting to vote on a resolution of no confidence, condemning the Attorney General for failing to "uphold and protect the public interest in the administration of justice." Allan Parker will give an account of this series of events and the current situation for legal services in British Columbia in its aftermath.
2:00-3:30 p.m. Jon C. Dubin, Rutgers University, Newark Moderator: Sandra A. Hansberger, Lewis and Clark Law School
This interactive session will challenge participants to consider confidentiality, conflicts of interest and other professionalism issues in the design of their clinics and externship programs. We will consider the following questions: * Do you have clear policies on confidentiality? How do those policies operate when you have many clinics and externship placements? Are those policies communicated effectively to students? * Have you structured your in-house clinics in a way that is attentive to conflicts of interest issues? How do you define your "firm" and why? Do you teach students about the conflicts issues that will arise due to their participation in clinics and externships? Have you adopted systems for in-house clinics that will ensure that you find out about students' outside employment, not once, but on an on-going basis? * When your students encounter low community practice standards by opposing counsel, or in their externship placements, how should and do you deal with their effects? 3:30-3:45 p.m. 3:45-5:00 p.m. 5:15-6:30 p.m. 7:00-9:00 a.m. 9:00-10:30 a.m. Phyllis Bernard, Oklahoma City University Moderator: David F. Chavkin, American University
Clinical education involves a variety of methods for encouraging students to think about professionalism. These panelists will discuss and demonstrate a variety of techniques used to encourage students to think about professionalism and the role professionalism plays in decisions students make about cases, clients, and the role the lawyer plays in the legal system.
10:30-10:45 a.m. 10:45 a.m.-12:00 noon Scholarly Works in Progress "What I Learned When I Took the MPRE" "A Critical Analysis of Alabama Death Penalty Jurisprudence: 1982-2002" "The Cost to Children when Batterers Misuse Order for Protection Statutes in Child Custody Cases"
Responding to Clinic Students' Professional Misconduct This session will examine the responsibility of clinical teachers when they observe a student violate ethical or professional standards. Under what circumstances should the teacher report the student to the Character and Fitness authorities? Use the law school's disciplinary system? Provide counseling and advice but not report ethical violations to the authorities? What about criminal violations?
This issue arose in several cases while supervising a student at the University of Chicago. A survey was prepared and sent to all the clinical teachers who attended the Midwest Clinical Teachers' Conference in the fall of 1998. A summary of the survey results will be presented. A "Best Practice" statement for clinics confronting violations of ethical and professional standards will be proposed. The group will discuss the proposed statement, suggest amendments and indicate disagreements.
Dealing with the "Lying" Client A situation involving a "lying" or untruthful client cuts across all clinical disciplines and always presents a challenging context for teaching issues of professionalism, especially professional ethics. However, these issues are particularly pronounced when representing applicants for political asylum who have so much at stake and may be fabricating evidence. Indeed, in the political asylum context, there is often little evidence beyond the client's own testimony. For that reason, exaggerations or outright misrepresentations can be fatal to a claim. The Judge must be convinced of the claimant's believability in order to accept as true often perilous tales of persecution and torture. In order to develop the case, and "save" the client, students work extensively to detail and corroborate the client's account of persecution and/ or torture and become quite attached to the client. When it becomes evident that the client has exaggerated or fabricated a claim, teaching opportunities arise as to how to proceed professionally.
This workshop will begin with a simulated student /client interview in which the student becomes concerned that portions of her client's account of persecution are untrue. The supervising professor and the clinic director then discuss how to proceed, offering differing perceptions on our role as advocates and the clinic's role in training lawyers and promoting social justice. Our goal is to stimulate discussion of the multi-layered ethical/teaching issues for supervisors that arise when the student believes that her client is not being truthful. We will also explore the impact of these "teaching moments" on what we teach students about professionalism, poverty law and our role as lawyers.
The Legal Professional, Rules of Professional Conduct and the Social Justice Mission Rules of Professional Conduct shape the lawyering process and project a particular vision of 'professionalism'. In many respects and in a variety of instances such rules, and the dominant image of professionalism they reflect and project, are deeply problematic in the context of social justice work. So, for example, within this vision (and as clearly stipulated by several rules) the lawyer is a zealous partisan advocate on behalf of individual clients and it is to this individual that the lawyer's obligation runs. But this vision of lawyering - and thus these rules -- can be profoundly problematic in the context of teaching students to lawyer for social justice. So, for example, an individual's interest may well conflict with the interests of a broader community whose interests the clinic is also mandated to protect. Consider, as a concrete example, a situation where state or provincial civil servants are on strike and striking to re-invigorate the public service (something which would benefit the broad community of people served by your clinic). How should the clinic deal with directions from an individual client that would require a student to cross a picket line if followed? And what if the student belongs to a union herself and/or is a strong supporter of unionization. Should the individual's directions simply be followed? What, if any, role should the clinic's work on behalf of the community play? Or the student's own moral commitments?
The workshop facilitators will discuss this and other examples to stimulate discussion of how we might teach students to respond to situations where rule compliance - or indeed the dominant vision of lawyering - impede social justice.
Professionalism in Context: Adapting and Balancing Perspectives As clinical professors, we are often the first lawyers to discuss, to define and to model professionalism and ethics to our law students. We are not only able to explore theoretical ideals of professionalism and ethics in the classroom, but also to help students test these ideals when put into practice in real cases. Our teaching should include the subjectivity and contextual nature of professionalism. For example, we often adapt our ideas of professionalism based upon whether we are before a judge, a jury, opposing counsel, or our clients. Our students learn from this and define their own sense of professionalism based upon context.
In our concurrent session, we plan to explore the definition and subjectivity of professionalism through group discussion, movie clips and simulations. We will address cultural competence issues and how race, age, gender, class and educational level may affect our perspectives of professionalism. We will focus upon whether to and how to adapt professionalism to fit within various contexts.
We will also address how, through clinical education, we can teach our students the importance of maintaining high standards of professionalism and ethics. In this regard, we will address how to model and teach professionalism and how to help students recognize negative role models in the real world of practice.
Teaching Demonstration: Transforming Minnesota Nice Law Students Into Vigorous Advocates These hypotheticals are designed to help law students practice dealing with difficult people, including judges, opposing counsel, clerks, persons in authority positions such as principals, or even their own clients. The exercises are intended to help students consider what their role is in a difficult advocacy situation. They are asked to consider their own emotional response to a difficult person or situation and then what an appropriate response is in light of their role as advocate for their client. Students are encouraged to maintain their role as a vigorous advocate for their client in a professional and respectful manner no matter what surprising situation they encounter. It is hoped that this kind of simulation will help students not be paralyzed with fear, anger or feelings of being intimidated, when the normal bumps along the road occur in their work as certified student attorneys. Participants will have the chance to role play the hypotheticals.
Professionalism in Community Economic Development Work This workshop is focused on issues of professionalism as it relates to transactional attorneys and representation of community group/non-profit clients and other forms of group representation. The workshop will be a lively give and take discussion involving all of the workshop participants. Issue of discussion will focus on such topics as:
1. CLIENT SELECTION. Identifying our own interests and issues, as clinical supervisors (and lawyers). Client selection is a complex process that involves a number of relevant factors. What about the supervisor's interests? Should the supervisor's interest be a relevant factor? If so, how to admit our own personal agendas, especially if what motivates our decision making is political, intellectual interests, professional advancement, etc.
2.CLIENT/COMMUNITY ADVOCACY. Defining the role of the attorney in community advocacy on behalf of clients. What is the role of the client and what is the role of the attorney? Is there a line that should not be crossed as lawyers and law student counselors? Who makes that decision? Is the role of the attorney distinct from that of the client?
3. THE LAWYER AS A MEMBER OF THE CLIENT GROUP. There are a number of different philosophies regarding the lawyer as a member, as opposed to outside advocate on behalf of a group client. Can the lawyer be both legal counsel and a member of the client group or sit on the group's board of directors? What is the impact of the lawyer's presence on the dynamic of the client group? Is it legitimate for the lawyer to self identify as a member of the group? Do our notions of "client centered" counseling prevent the lawyer from helping to shape the group's agenda? The strategy? What does a supervising attorney's personal participation in community group activities teach our students?
4. CULTURAL AND LINGUISTIC SENSITIVITY. Many law school clinical programs serve a culturally and linguistically diverse community. Is it part of our obligation (to the students or the community) to address issues of cultural and linguistic sensitivity? If so, how do we go about this challenge?
Teaching "Good" Lawyering Through Observing "Bad" Lawyering Clinical education is uniquely positioned to teach professionalism. We use a variety of live-client situations, simulations, reflections and classes to impart ideas about professional conduct. Through our method of practice, we strive to demonstrate good lawyering.
On the other hand, unprofessional lawyering is everywhere. It is truly one of the most frustrating aspects of the practice of law. This unprofessionalism is displayed by opposing lawyers and unfortunately occasionally by clinic students. We are also subjected to improper judicial conduct in litigation matters.
One of the great things about being a teacher/practitioner in a clinical program is turning the frustrations of bad lawyering into a positive learning experience. It allows us to not too subtly expose students to one of the realities of law practice and highlight for them what good lawyering should be. These situations also force us to model appropriate responses to the improper conduct.
This session will examine some of the unprofessional situations the presenters have faced, and what was done in response to the bad lawyering and adjudicative disasters. The group will be asked to share their experiences as well. Participants are urged to bring any assessment/reflection tools they have developed in their teaching to share with colleagues.
The Unanticipated Benefits of Interdisciplinary Collaboration Most discussion regarding professional issues surrounding interdisciplinary approaches to clinical education have rightly focused on the pitfalls of such approaches and working to overcome them. The benefits of interdisciplinary models are largely assumed and easily summed up as providing for more holistic remedies for clients. But what are the other benefits of interdisciplinary collaboration? How do students benefit from the interdisciplinary models? Professors? Clients?
This session will discuss the "unanticipated benefits of interdisciplinary education," from the perspective of the professors, students and clients. Hoping to capitalize on the audience's experience with such models, this session seeks to produce a more comprehensive picture of the benefits of interdisciplinary collaboration.
Ethical Issues in Fundraising In this session we will address issues of professional responsibility relating to funding and fees in clinical programs. Specifically, we will explore the questions of what ethical rules and norms guide us in setting up fee arrangements and agreements in clinical programs.
12:00 noon-1:45 p.m. 2:00-3:30 p.m. 3:30-3:45 p.m. 3:45-5:00 p.m. Shouts and Murmurs: The Duty (and Right) to Speak Out Recent threats to access to justice have come in a variety of forms, from attacks on clinics and the role of legal assistance lawyers, to critiques on the kinds of cases centered in law schools, to the hobbling of the justice process more broadly. Do lawyers have a duty to speak out for themselves? Is there a particular duty that attaches to tenured clinical law professors? Do clinicians have a duty to actualize theoretical concepts? Who should defend lawyers under attack? Should clinics be teaching a duty of courage? If so, how do we teach courage?
The panel will discuss specific examples of pressure and criticism applied to law school clinics, the responsibility of tenured clinical lawyers to defend themselves and the profession while expanding the boundaries of law, and the possibilities for unique advocacy that exist in law schools. The panel will also consider threats to the justice system and the ways in which law reform and social critique are an integral part of professional lawyering.
Civility Codes During the last ten years many states and local jurisdictions have adopted civility standards. Some states have made the standards mandatory while others have implemented them as advisory guidelines which attorneys are encouraged to follow. Whether advisory or mandatory, judges are increasingly incorporating these standards in pretrial orders and requiring attorneys involved in discovery to certify that all attorneys will adhere to civility guidelines.
Our session will address civility standards and their relevance to clinical practice and teaching. Some suggest that civility codes inhibit zealous representation and encourage a watered down advocacy style that works to the disadvantage of litigants traditionally marginalized from the legal system. Others argue that civility codes set a normative standard which encourages assertive advocacy while discouraging disparaging, discriminatory and abusive lawyering tactics. Some proponents have even suggested that civility standards have the potential to motivate talented law students who shun litigation out of concern that it requires mudslinging and use of abusive tactics, to reconsider their professional options.
We will focus on how clinical teachers are addressing the issue of civility in their courses and in supervision. The facilitators and participants will share class materials and exercises that they use in the classroom. In addition, we will discuss concrete supervision strategies that clinicians use when civility issues arise in the context of client representation.
Influencing Students' Values Before They Reach the Clinic It is widely believed that the values of many law students change in law school, especially during the first year: they become more competitive, more cynical and less interested in public service careers. If such changes do take place, they can impact negatively on clinical education in several ways. Student demand for clinics may drop and the very students who might benefit most from a clinical experience may not seek it. As for those students who do take a clinic, they may enter with troubling, unprofessional values that limit what they learn, make teaching difficult, and create risks for clients. There are many both inside and outside the clinical movement who are trying to alter professional identity formation in law schools for the better. In particular, powerful leaders in the bench and bar have shown great interest in promoting idealism and commitment to public service during legal education, in some cases beginning in the first week of law school. Clinical teachers are an important potential resource for this professionalism movement as well as possible beneficiaries. Panelists will provide information about initiatives on professional value formation at law schools around the country and invite participants to share ideas and approaches developed in clinics and to explore ways to strengthen links between the clinical and professionalism movements.
Professional Responsibility in Postconviction Work We propose to organize a program that will explore professional responsibility in post-conviction work, bringing together perspectives from both innocence projects and death penalty clinics. We have identified two sets of professionalism issues to address, one based on the common ground between the two types of projects and the other based on the tensions between them. First, innocence projects and death penalty clinics share the challenges and opportunities of teaching professionalism in the context of cases in which lawyering mistakes abound, often with tragic consequences. Second, the significant tensions between innocence projects and other criminal defense work rest in part on conflicting positions on questions of professional responsibility. This program will explore the challenges for clinicians and students from both sets of issues.
Working with Language Interpreters As the population of the United States becomes more ethnically diverse, the number of people seeking legal assistance who have limited English proficiency also is increasing. Consequently, law students must develop skills in cultural competence and cross-language communication. As it is not practical that students will become fluent in all the languages their clients speak, students must rely on interpreters for assistance in all facets of client interaction and formal advocacy. Thus, the professional training students receive should include training on working with language interpreters.
In this session, we will discuss ways in which law students and lawyers can learn to work with language interpreters. Presenters will include law clinicians and at least one certified interpreter. Topics will include (a) identifying the need for an interpreter; (b) professional vs. ad hoc interpreters; (b) the role of a professional interpreter; (c) working effectively with a professional interpreter (in the office and in advocacy settings); and (d) training ad hoc interpreters. During the session, we also will view and discuss videotapes of interviews in which an interpreter is employed.
Truth is a Virtue-Or is it? There is a wealth of literature on the propriety of lying to the court or opposing counsel, but relatively little on the seemingly more repugnant practice of lying to our clients and our students. We plan on exploring this issue via a multimedia presentation using videotapes, video clips and live demonstrations.
Ethical Issues in Settlement This panel will address some of the ethical, client-counseling, and supervision issues that arise in settlement. We want to focus on how we and how our clients should respond to demands made by defendants' lawyers in negotiations - for example, demands for secrecy clauses, or demands for waivers or reductions of attorneys' fees in return for a benefit to our clients. What are the ethical implications of such demands? How should we counsel our clients when their self-interest may conflict with ours, or with our interest in solving problems on a larger scale? How do we prepare our clients, our students, and ourselves to deal with these issues? We will try to pay special attention to the subtle psychological pressures that these issues provoke.
Buying in to Buy Out: Clinics, Legal Education and Social Justice Clinical law programs occupy an uneasy position, in a kind of "no-mans land", within law faculties, legal aid programs, and the legal profession itself. Created historically in many cases to combat social injustice through the advocacy work of law students, and based initially on a model of "pro bono" legal services, clinical law programs have become institutionalized and in that sense have "bought in" to the status quo. Many clinical law programs continue to strive to work toward alleviating social inequities while instilling in students the principle that "professionalism" includes social responsibility. On the other hand, the programs mirror many of the social inequities that they were supposedly created to combat. For instance, women make up a statistically higher proportion of staff, students and clients, and yet clinical law programs often receive proportionally fewer resources. Within the government funded legal aid program family law requires more hours for less pay from lawyers. Poverty law is often not even on the map; relegated to "pro bono" work or contract funding. (And of course the students contribution is totally unpaid.) Individually, clinical lawyers within the law school community receive fewer benefits. What messages are we conveying to students implicitly even as we challenge hierarchies and inequality explicitly in our work on behalf of clients? How can we more effectively address these issues with students?
Vicarious Traumatization and Lawyer Burnout When we talk about "Professionalism" in clinical legal education we are usually talking about how to teach students about the ethical and "professional" responsibilities they have to their clients and their legal community. However, professionalism also requires a certain amount of attention to the person - the student lawyer. The legal profession has a high occurrence of burnout and cynicism. Law school clinics spend a good deal of time teaching our students how to be empathetic listeners and counselors and very little time helping them deal with the personal impact of their success. We now know that working with people who have been involved in traumatic situations can have an adverse impact on the listener, as well as the storyteller. Vicarious Traumatization, the transforming experience caused by listening to and experiencing the trauma of others, is a professional hazard of working with traumatized clients. It affects both students and clinical faculty members.
In this session we will talk about stress, burnout and vicarious traumatization. We will first define vicarious traumatization and propose some ways to help identify students suffering from it. We welcome a conversation among the clinicians present as to the extent to which you have identified and dealt with the problem. Research has discovered that certain processes can help alleviate the problems associated with vicarious traumatization. We will discuss some of those findings and how those methods can be incorporated into a clinical program. At the same time, researchers have suggested that certain institutional structures exacerbate, even create, stress and burnout. We would like to end the session by brainstorming ways we can organize (or re-organize) our clinics to change those structures and, thereby, reducing the incidents of vicarious traumatization, stress and burnout among the students and the clinicians.
The Tao of Professionalism (Or Hit Them Early, Hit Them Hard) Most students begin their clinical experience unprepared to recognize or deal ethically with the myriad of professional issues (confidentiality, zealous representation, client-centered representation, client-centered decision making, professional demeanor, etc.) that they will confront upon meeting their first client. At Albany Law School, it is our goal to introduce the students to these issues during our first formal classroom meeting time with them, at Orientation.
A number of tensions exist in designing an effective orientation that teaches professionalism. First, students often do not think they have the time to participate in the comprehensive discussion of the issues that we would like. Second, a 3-hour clinic orientation class does not easily lend itself to the study of professionalism as a process. Students in law school generally learn the professional rules of conduct in core courses, this misses the message we wish to convey-that learning the code is only part of what students must master in order to be professionals. Nevertheless, we have attempted to capture students' interest early and to begin the process with them of learning to be a professional in a short period of time. To that end, we have developed a multimedia clinic orientation entitled: "The Tao of Professionalism."
The "Tao of Professionalism" connotes a lifelong process of discovery. There is "that which is known" and there is "that which must be discovered," For "that which is known," we look to the rules, such as the ethical code or office procedures. For "that which must be discovered," such as character and quality, one must engage in the process of Reflection-Teaching-Experience-Reflection-Teaching-Experience-Reflection
We break our orientation down into four parts, each requiring increasing levels of student participation:
For our presentation at the conference we would ask conference attendees to play the role of our students participating in the orientation. It would be our plan to share the outline of our orientation and to introduce each of the four phases, but we would not do the entire orientation.
Whose Client is it Anyway? When Should the Teaching Stop and the Protection of the Client's Interests Begin On a daily basis clinical educators are faced with the daunting task of determining whether our students are meeting their professional obligations to their clients. This session is designed to explore several scenarios that are commonly faced by clinicians and offer some criteria for determining when the supervisor should intervene, what that intervention should look like and how to better prepare for similar situations in the future. Presenters will use simulated clinical faculty meetings and video clips to illustrate three scenarios where students are faltering in their professional obligations to their clients. Participation in the simulation exercise is encouraged, so bring your ideas and concerns about one of the most challenging issues facing clinical educators.
5:30-7:00 p.m. 7:00-9:00 a.m. 9:00-10:30 a.m. Ann Juergens, William Mitchell College of Law Moderator: Calvin Pang, University of Hawaii
In this discussion, the panelists will explore the relationship between professionalism and personal satisfaction in the practice of law. Do issues of personal satisfaction belong in the clinical teaching agenda, and how best can we address them? 10:30-10:45 a.m. 10:45 a.m.-12:00 noon 12:00 noon-1:45 p.m.
Small Group Leaders Amy G. Applegate, Indiana University, Bloomington |
