professional responsibility, student practice, and the clinical

PROFESSIONAL RESPONSIBILITY, STUDENT
PRACTICE, AND THE CLINICAL TEACHER'S
DUTY TO INTERVENE
George Critchlow*
INTRODUCTION: THE CLINICAL TEACHER'S CONFLICT
While there are a number of useful skills training methods, the live client
clinic is one of the more valuable and unique tools for teaching lawyer
competencies. A client-centered learning experience which requires the law
student to "learn by doing" under the structured guidance of a clinical teacher
also enriches students' understanding of what it means to be a lawyer in the
more subtle but important dimensions of human relations, ethical and moral
responsibility (to clients, courts, and society), and reflective, self-critical
thinking. 1
The live client clinic, 2 however, is a special hybrid, presenting
*Assistant Professor of Law, Gonzaga University School of Law; Associate Director
of University Legal Assistance, Gonzaga University School of Law's in-house legal clinic;
B.A., University of Washington, 1972; J.D., Gonzaga University School of Law, 1977. The
author wishes to thank Mary Pat Treuthart and Mark Wilson for helpful ideas and
comments.
1. See generally Clinical Legal Education and the Legal Profession, 29 CLEV. ST. L.
REV. 345 (1980). See also Kreiling, Clinical Education and Lawyer Competency: The
Process of Learning to Learn from Experience Through Properly Structured Clinical
Supervision, 40 MD. L. REV. 284 (1981); Hoffman, Clinical Course Design and the
Supervisory Process, 1982 ARIZ. ST. L.J. 277; Condlin, Clinical Education in the Seventies:
An Appraisal of the Decade, 33 J. OF LEGAL EDUC. 604 (1983); Redlich, The Moral Value
of Clinical Legal Education: A Reply, 33 J. OF LEGAL EDuC. 613 (1983); Spiegelman,
Integrating Doctrine, Theory and Practice in the Law School Curriculum: The Logic of
Jake's Ladder in the Context of Amy's Web, 38 J. OF LEGAL EDUC. 243 (1988); Tomaine
& Solimine, Skills Skepticism in the Postclinic World, 40 J. OF LEGAL EDUC. 307 (1990).
2. I use "live client clinic" to describe a clinical setting where cases are assigned to
student interns and these interns have direct and primary responsibility for all aspects of the
case. Gonzaga University Law School's live client clinic, known as University Legal
Assistance, enrolls approximately forty to fifty law student interns per year. The clinical
program is staffed by five clinical teachers who closely supervise student intern work. Each
student intern is expected to handle a caseload of ten to twenty cases (depending on the
nature, complexity, and posture of cases) at any time. Student interns may receive up to
fifteen hours of academic credit for clinical studies. The clinic handles a full spectrum of
civil and criminal cases for low income clients with emphasis on family, consumer, housing,
and public, entitlement problems.

416 GONZAGA LAW REVIEW
[Vol. 26:2
pedagogical and ethical concerns not encountered in other law school settings.
The clinical teacher will face role confusion and professional conflict when
his or her assessment of what is educationally productive for the student
collides with the teacher's assessment of professional obligations owed to the
client. This conflict may turn generally on the teacher's sense that the client's
interests are not being zealously served and protected by the student advocate.
It might stem from a perception that the student is committing violations of
more specific ethical rules (e.g., making a false statement of material fact to
a tribunal) or committing errors or omissions which would constitute
professional negligence. The clinical teacher may also have a particular
moral sensibility about the specific case, or about conflict resolution in
general, which differs from that of the student and which suggests
responsibilities or constraints beyond those dictated by the applicable ethical
code. 3 Such conflict raises the prospect of the clinical teacher's intervening
directly between the student and client to safeguard the client's interests or to
promote some other moral objective. But the very act of direct intervention
disturbs the student-teacher and student-client relationships in ways that can
produce undesired and unintended consequences. The student may feel his
or her judgment has been unnecessarily impugned. Intervention may cause
the student to feel demoralized and inadequate and to become overly
dependent on the clinical teacher. The student-client relationship is at risk of
being undermined. The client may infer that he or she is receiving inept or
second-rate legal services and may be more circumspect in further dealings
with the student. The resulting mix of emotions and uncertain expectations
injects instability and distrust into the problem-solving process which can
hinder further work on the client's case. Thus the act of clinical intervention,
while motivated by ethical propriety and professional responsibility, can
3. Lawyers and law teachers are increasingly studying ways to integrate personal
morality and professional ethics. See, e.g., R. JACK & D. C. JACK, MORAL VISION AND
PROFESSIONAL DECISIONS (1989); Spiegelman, supra note 1. The American Bar Association
Model Rules of Professional Conduct' require the lawyer to "exercise independent
professional judgment and render candid advice. In rendering advice, a lawyer may refer
not only to law but to other considerations such as moral, economic, social and political
factors that may be relevant to the client's situation .. " MODEL RULES OF PROFESSIONAL
CONDUCT Rule 2.1 (1990). As clinical teachers wrestle with the moral ramifications of
professional choices, their personal moral vision may conflict with that of the student. The
teacher's vision is, of course, not inherently preferable to the student's. The tension
between the two can both enrich and complicate the teacher-student relationship.

1990/91] STUDENT PRACTICE
417
result in an unsatisfactory educational experience for the student, an anxious
legal experience for the client-regardless of the objective legal result-and
serious role conflict for the clinical teacher. 4
The purpose of this article is to address the problem faced by the clinical
teacher whose instinct as lawyer is to do one thing and as teacher something
different. 5 While direct intervention is sometimes clearly mandated by
4. Michael Meltsner and Philip G. Schrag, two leading innovators in the development
of clinical legal education, identified this conflict in one of their early writings on clinical
education: "The tension between our roles as facilitators of intern-oriented learning and as
supervisors on cases affecting actual clients' interests is a constant, major theme in our
work. The ethical implications of our dual role are a subject of frequent discussion among
supervisors and with interns." Meltsner & Schrag, Scenes From a Clinic, 127 U. PA. L.
REv. 24 (1978). This tension was of such significance to Roy Stuckey, Clinical Professor
and Director of Clinical Education at South Carolina, thaf it factored into his decision to
restructure South Carolina's Domestic Practice Clinic by eliminating contested divorces and
handling only uncontested, no-fault divorces. According to Professor Stuckey, "[n]o fault
divorces give me the luxury of allowing students to make mistakes which are not likely to
permanently harm many of their clients." Paper delivered by clinical Professor Roy
Stuckey, 1986 American Association of Law Schools Clinical Teachers' Conference (May
17-22, 1986). But see Bloch, The Andragogical Basis of Clinical Legal Education, 35
VAND. L. REv. 321, 352 (1982). Block holds a contrary opinion that such cases are "too
simple to require any serious work by the faculty."
5. Some commentators have argued that live-client clinical teachers face an
irreconcilable institutional conflict in trying to be both educator and practitioner. Success
in law teaching has generally been understood to mean excellence in classroom presentation
and scholarly research and writing. This view was principally influenced by the philosophy
of Dean Langdell, Dean of Harvard Law School and founder of the so-called "case method"
of legal education in the 1870's. Dean Langdell's description of the qualifications of a law
teacher indicates how alien the legal academic world is from the world of the practitioner:
What qualifies a person to teach law is not experience in the work of a
lawyer's office, not experience in dealing with men, not experience in the trial
or argument of causes-not experience, in short, in using law, but experience
in learning law ....
Frank, Why Not a Clinical Lawyer-School?, 81 U. PA. L. REV. 907, 908 (1933). The
clinical law teacher, however, must commit to the goals and values of lawyering. He or she
works in an environment of antagonistic values and is not likely to gain serious academic
recognition for purely clinical work even if the result of the teacher's effort is superb
teaching and quality representation of clients. This tension has been urged as a reason to
replace live-client clinics with simulation clinics where live-client responsibility does not
get in the way of a teacher's natural inclination to advance in the academic community.
Tyler & Catz, The Contradictions of Clinical Legal Education, 29 CLEV. ST. L. REV. 693,
697-99 (1980). While this tension is certainly real and constantly present for the clinical
teacher, a more logical response is to simply reassess what we value in legal education.

GONZAGA LAW REVIEW
[Vol. 26:2
professional ethics, it is my opinion that clinical teachers have not sufficiently
explored the murky interstitial problems implicit in our dual role. 6 Chief
among these problems is the question of when and why, from the standpoint
of the client's interest, the clinical teacher should intervene directly between
student and client. 7
I will suggest a framework and practical guidelines which may help the
clinical teacher better understand and deal with the conflict commonly
surrounding the question of clinical intervention. The discussion will be
partly anecdotal, based on my ten years of experience as a teacher in a live
This is gradually being accomplished in many law schools through curriculum changes and
personnel decisions which reflect increased recognition of the need for teaching lawyer
skills, competencies, and professional responsibility. See, e.g., Mudd, Beyond Rationalism:
Performance Referenced Legal Education, 36 J. LEGAL EDUC. 189 (1986).
6. These problems have been raised and discussed at periodic clinical teachers'
conferences sponsored by the Association of American Law Schools (AALS). My concern
is that there has not been enough scholarly attention paid to what is often a very private,
complex, and emotionally uncomfortable question for clinical teachers: "Should I take
over?" Professor Robert Condlin has waged a sustained campaign to encourage more
critical self-reflection, empirical research, and scholarship by and among clinical teachers.
See, e.g., Condlin, supra note 1; Condlin, Socrates' New Clothes: Substituting Persuasion
for Learning in Clinical Practice Instruction, 40 MD. L. REv. 223 (1981) [hereinafter
Condlin, Socrates' New Clothes]. More recently Condlin has argued that live client clinics
cannot provide for a meaningful critique of the practice of law because clinical teachers are
too close to their subject, i.e., client representation, and cannot be both practitioner and
critic. Condlin, "Tastes Great, Less Filling": The Law School Clinic and Political
Critique, 36 J. LEGAL EDUC. 45 (1986). While I think Professor Condlin's critique of
clinical education misses the mark, I agree that clinical teachers can do more in the way of
critiquing both the practice of law and legal instruction. In any event, although Professor
Condlin discusses at length the question of how clinical teachers intervene, he appears to
have little to say about the narrow question of when teachers must intervene to protect a
client.
7. Professors Peter Hoffman and Kathleen Sullivan presented a paper at the 1990
AALS National Clinical Teachers Conference in Ann Arbor, Michigan in which they discuss
the variables affecting the clinical teacher's decision to intervene. Their analysis focuses
on intervention at three different stages of learning in the clinical setting: planning,
performance, and reflection. They identify certain student, case, pedagogical, and
professional responsibility variables which influence the decision to intervene. While my
definition of intervention is more restricted and my inquiry more narrowly focused on the
professional responsibility concerns of the clinical teacher at the performance stage of law
students' work, the questions raised by Professors Hoffman and Sullivan helped shape my
thoughts on the subject. P. Hoffman & K. Sullivan, Conflict for the Clinical Teacher:
Teacher or Lawyer, paper presented at 1990 AALS National Clinical Teachers' Conference.

1990/91]
STUDENT PRACTICE
client clinic. My thesis is that neither the Rules of Professional Conduct nor
typical student practice rules are particularly useful in helping a teacher
decide when direct intervention is required. These rules establish minimum
standards only and tend toward vagueness. Clinical teachers must augment
the mandate of the rules by balancing a variety of client-centered
considerations which focus on client expectations, student competency,
teacher competency, and the interest of the client and others in minimizing
delay, financial costs, and emotional discomfort. While application of this
balancing test will not always assure the client receives the best legal work a
clinic teacher is personally capable of producing, it should result in a level of
supervision which protects the client without unreasonably undermining the
student's learning experience.
I. WHAT IS MEANT BY INTERVENTION BY THE CLINICAL TEACHER
The term "intervention" in this article is used to describe the act of a
clinical teacher directly engaging the client, adversary party, or adjudicative
process in a manner which replaces the teacher's authority and judgment for
that of the student. The clinical teacher's assumption of direct responsibility
brings a dynamic new factor into a case. It may be good or bad, but it
changes the experience for all concerned. Client, adversary party, and court
may all manifest new expectations and unpredictable responses when the
established student-client relationship is disrupted.
I do not use intervention to mean the one-on-one supervision of the
student by the clinical teacher. The teacher is routinely called upon to
communicate information to the student. The teaching mode may be
expository, dialectic, evaluative or demonstrative--depending on the
teacher's objective s -but effective skills training and the student's
development of reflective self-criticism could not be accomplished without
regular teacher involvement. I also do not use the term intervention to
encompass aggressive criticism or outright disapproval of a student's written
work product, problem-solving strategy, interviewing skills, trial tactics, legal
analysis, or the like. Directive supervision and criticism may detrimentally
affect the learning process by transferring responsibility for making decisions
from student to teacher. It may also suggest a need for reflection on the part
of the clinical teacher as to teaching style, interpersonal communication, and
8. See Hoffman, supra note 1 (for a general discussion of the strengths and
weaknesses of teaching methods routinely used by clinical teachers).

GONZAGA LAW REVIEW
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the way people learn. 9 But unless the criticism is palpable to the client, it is
not intervention in the sense that the clinic teacher has directly assumed
responsibility for performing the lawyering activity in question."°
I use the term "clinical teacher" to denote one who has obligations of a
professional nature to the client but, unlike the supervising attorney operating
9. For a discussion of cooperative versus competitive and coercive teaching in the law
clinic, see Condlin, Socrates' New Clothes, supra note 6. Condlin stresses the value of
interacting and communicating in a "learning" rather than a "persuasive" mode in order to
avoid teacher domination and manipulation of the student. The learning mode is
characterized by the identification, disclosure, and non-coercive discussion of value
preferences implicit in teaching; the persuasive mode is "hide the ball" teaching whose
objective is to convince others while minimally disclosing one's values, motive or purpose
and without considering the other's ideas or views. Condlin argues that too much clinical
teaching is of the persuasive mode variety and therefore not distinguishable from the more
manipulative (Socratic) classroom techniques clinical teachers profess to avoid. But see
Spiegelman, supra note 1, at 246-47 ("[E]xcept in clinics and practice-skills courses, in
teaching about alternative dispute resolution, and in humanistic approaches to legal
education, cooperation is largely neglected .... " See R. JACK & D.C. JACK, supra note
3 (for a general discussion of the failure of traditional law school teaching methods to help
students confront and bridge the gap between professional ethics and personal morality).
The authors argue that law schools model what they teach on, an adversarial system, and
that traditional combative teaching techniques must be modified or supplemented with more
cooperative, less alienating forms of instruction. Id. at 44-47, 166-67.
10. Professor Condlin defines clinical practice instruction as "strategic intervention
by law teachers in student performance of lawyering tasks." Condlin, Socrates' New
Clothes, supra note 6, at 223. He defines intervention more broadly than I by reference to
the following concept: "[In intervening] ... a [teacher] ... assists a [student] to become
more effective in problem-solving, decision-making and decision implementation in such a
way that the [student] can continue to be increasingly effective in these activities and have
a decreasing need for the [teacher] .... " See Condlin, id. at 223 n.1 (quoting C. ARGYRIS,
INTERVENTION THEORY AND METHOD: A BEHAVIORAL SCIENCE VIEW 15-16 (1970)).
Condlin believes it is preferable to intervene non-coercively. See supra note 9. However,
he acknowledges that there are ethics-driven instances in clinical education when coercive
behavior on the part of the teacher would be appropriate: "For example, if a student fails
to contact a client to close material gaps in the client's story and the deadline for filing
pleadings approaches, the teacher may raise his voice or tie the failure to contact the client
to some external sanction. These actions are coercive, in that they are threats rather than
new substantive arguments about the correctness of contacting the client but would often be
appropriate for letting the student know that client interest in competent representation takes
priority over student freedom to choose whether to be competent." Id. at 239 n.42. Even
coercive direction of this kind is not intervention for purposes of my discussion because it
does not entail direct intervention between student and client in the sense that the clinic
teacher actually "takes over" performance of the lawyering task from the student.

1990/91]
STUDENT PRACTICE
in a non-educational setting, also has an explicit pedagogical responsibility
to the student. That responsibility may vary as a function of curriculum and
clinical program design but, at its core, it means the clinical teacher values
and addresses the students' educational needs and expectations as a
substantial and independent set of professional concerns. 1
The supervising attorney in the non-clinic setting may seek to further a
law student employee's education either out of genuine concern or because
it is in the employer's business interest to do so. However, it is likely the
effort will be incidental to the employer's principal goal of servicing clients
and will lack the structure and methods necessary to address the student's
individual educational needs. 12 Clinical teaching, on the other hand, is
distinguished by the very fact that educating students is the business of the
clinic. 3
11. See Barnhizer, The Clinical Method of Legal Instruction: Its Theory and
Implementation, 30 J. OF LEGAL EDUC. 67, 72 (1979). Barnhizer warns that mere exposure
of law students to the experience of client representation and responsibility is, in itself, an
unreliable teaching method which presents unjustifiable risks for clients and for students.
He argues that the clinical method must integrate the following three factors: (1) a
substantive, but restricted, volume of actual client representation by the student; (2) the clear
assumption by the individual student of "primary" professional responsibility for the process
and outcome of that representation; and (3) an individualized teaching relationship between
the student and clinic teacher, using the student's clinical experience as its focus. See
generally Stone, Legal Education on the Couch, 85 HARV. L. Rnv. 392, 431-36 (1971);
Kreiling, supra note 1; Hoffman, supra note 1.
12. Meltsner, Rowan, and Givelber examine the problem of inadequate supervision
of junior lawyers in big city law firms. Based on interviews with a number of supervisors
and supervisees in large and mid-size private firms, the authors conclude that many law
firms do not pay significant attention to the process by which new lawyers learn on the job.
The reasons for such inattention include the cost and pace of modem legal practice (which
run counter to reflective supervision) and, interestingly, the failure of legal education to
identify effective supervision as a matter that belongs in the curriculum. Meltsner, Rowan
& Givelber, The Bike Tour Leader's Dilemma-Talking About Supervision, 13 VT. L. REV.
399 (1989). See also Henning, The Lawyer as Mentor and Supervisor, LEGAL ECON., Sept.-
Oct. 1984, at 20, 21. Henning believes it is difficult for the task-oriented lawyer
"supervisor" to also be a trusted "mentor," i.e., one who counsels and teaches.
13. I am not suggesting that working part-time as a clerk or intern during law school
is necessarily harmful. It may be educationally beneficial to law students, particularly those
who lack an opportunity for skills training in law school courses and who are fortunate
enough to be "mentored" by an employer supervisor who focuses on the student as well as
the task. See Pipkin, Moonlighting in Law School, AM. B. FOUND. RES. J. 1109, 1162
(1982); Zillman & Gregory, Law Student Employment and Legal Education, 36 J. LEGAL
EDUC. 390 (1986).

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II. DEVELOPING CRITERIA FOR INTERVENTION
A. Student Practice Rules and the Codified Rules
of Professional Responsibility
The applicable student practice rules and ethical code are a logical point of
departure in assessing the clinical teacher's obligation to intervene.' 4 A
positive declaration from such sources that intervention is required would
obviously resolve the question from a practical standpoint. Ignoring such a
mandate would jeopardize the professional status of teacher, student, and the
entire clinical program-regardless of any judgment by the teacher that the
client's interest had been adequately protected.
The majority of states have authorized limited student practice either by
statute, court rule, or state bar regulation. 5 The American Bar Association
Model Student Practice Rule authorizes student representation of all persons,
14. Of course, the best strategy for dealing with the problem of intervention is to
preclude the necessity altogether through thorough and effective student preparation.
The very novelty of lawyering to the student demands that the clinical teacher
recognize the special and profound teaching responsibility that is owed to the
student and the client. Students should not be allowed to fail at a task because
they did not understand it or because it had never previously been attempted
by the student. The clinical teacher's responsibility is to be certain that the
student understands what is expected. All tasks should be "mooted" or
simulated before the actual task is performed. The student is entitled to this
degree of preparation to increase the likelihood of successful performance. The
client, who no doubt will be a low income person for whom the clinical
program serves as lawyer of last resort, is entitled to at least this much
protection.
Cort, A.AL.S. Clinical Legal Education Panel: Evaluation and Assessment of Student
Performance in a Clinical Setting, 29 CLEV. ST. L. REV. 603, 616 (1980). Nonetheless, the
unanticipated problem or event does arise in the clinic as it does in all law offices. No
matter how rigorous and systematic the clinical system is for teaching and assessing student
skills and competencies, situations will inevitably develop which strain the student's
capability to competently respond. See Cort & Sammons, The Search for "Good
Lawyering": A Concept and Model of Lawyering Competencies, 29 CLEV. ST. L. REv. 397
(1980) (for an excellent discussion on the pioneering efforts of the Antioch School of Law
to develop concepts, definitions, methods, and instruments for evaluating lawyering
competency in the clinical setting).
15. Leleiko, State Federal Rules Permitting the Student Practice of Law:
Comparisons and Comments, in BAR ADMISSION RULES AND STUDENT PRACTICE RULES:
A REPORT 914 (1978).

1990/91]
STUDENT PRACTICE
including indigents. 6 The model rule authorizes student appearance in any
court or administrative tribunal with the written consent of the client and the
supervising attorney.' 7 In-court supervision is not required unless the client
has a right to assignment of counsel under applicable law.' 8 In addition, an
eligible law student may engage in "other activities.., outside the personal
presence of [the supervising] lawyer", including preparation of pleadings,
briefs and other legal documents.' 9 Although the rule does not specifically
address client interviewing and counseling, formal discovery activities, or
motion practice, it is reasonable to conclude these are authorized "other
activities." An eligible law student must have completed at least four
semesters of legal studies, be certified by his or her law school dean as being
of "good moral character and competent legal ability, and as being adequately
trained to perform as a legal intern."20 The student must also certify in
writing that he or she has read and is familiar with the applicable rules of
professional conduct. 2 ' The supervising lawyer under the rule must be
approved by the law school dean, must assume personal professional
responsibility for the student's guidance and for the quality of the student's
work, and must assist the student in preparation "to the extent the supervising
lawyer considers it necessary." 22
Most jurisdictions authorizing student practice allow student
appearances in trial courts. 23 Some states condition appearances on the
discretion of individual judges. 24 States vary on the requirement of in-court
supervision, sometimes distinguishing between criminal and civil matters, and
16. MODEL RULE RELATIVE TO LEGAL ASSISTANCE BY LAW STUDENTS, Section II.A
[hereinafter MODEL RULE]. The Rule was amended in February, 1979 to expand student
representation from indigents only to all persons. This was based on the ABA Section of
Legal Education and Admissions to the Bar conclusion that: "Restricting the students'
clinical experiences to representation of indigents, and to legal problems involving indigents,
severely and unnecessarily restricts the educational opportunities of students, and the
opportunities of law school faculties to provide their students with a broad range of practical
experience."
17. MODEL RULE § II.A.
18. Id. § II.A.3.
19. Id. § V.A.
20. Id. §§ III.B. and C.
21. Id. § III.F.
22. Id. §§ VI.A.-C.
23. Leleiko, supra note 15, at 916.
24. Id.

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between courts of general jurisdiction and limited jurisdiction."
Requirements also vary as to the level of experience required of the
supervising lawyer and whether private and public sector lawyers, as well as
law school faculty, are deemed appropriate to fulfill the supervising lawyer
role. 26 Washington's Admission to Practice Rule (APR 9) is representative of
more liberal student practice rules. It allows law student "legal interns" who
have completed two-thirds of a three-year course of study 27 to "advise or
negotiate on behalf' of a client and "prepare necessary pleadings, motions,
briefs or other documents" without the presence of a supervising lawyer. 28
An intern may participate in Superior Court and Court of Appeals
proceedings, including depositions, provided a supervising lawyer is
present. 29 The intern may try jury and non-jury cases in courts of limited
jurisdiction without the presence of a supervising lawyer only after
participating in one such case with a supervising lawyer. 3 "
APR 9 offers little in the way of substantive standards to guide the
clinical teacher. A supervising lawyer must review all pleadings, motions,
briefs and other documents prepared by the legal intern. 31 The lawyer shall
also "assume personal professional responsibility for any work undertaken by
the legal intern while under the lawyer's supervision., 32 The failure of a
supervising lawyer to provide "adequate supervision" is grounds for
disciplinary action. 33
Similarly, APR 9 provides few specific or specially tailored professional
responsibility standards for legal interns. Certification requires that the
applicant for intern status "has read, is familiar with, and will abide by the
25. Id. at 916-19.
26. Id. at 922-23.
27. WASH. SUP. CT. ADMISSIONS TO PRACTICE Rule 9(a)(1). See also id. at Rule
9(c)(3).
28. Id. at Rule 9(c)(3).
29. Id. at Rule 9(c)(4).
30. Id. at Rule 9(c)(5). However, the "supervising lawyer or a lawyer from the same
office shall be present in the representation of a defendant in all preliminary criminal
hearings." Id. at Rule 9(c)(6).
31. Id. at Rule 9(d)(1).
32. Id.
33. Id. at Rule 9(d)(5).

1990/91]
STUDENT PRACTICE
Rules of Professional Conduct. 3 4 The rule also states that legal interns
"shall be subject to the Rules of Professional Conduct... and shall be
personally responsible for all services performed as an intern. 35
What, then, do the Rules of Professional Conduct tell us about the
ethical duties of student interns and their supervisors? RPC 1.1 refers to an
obligation of competent representation. It states: "A lawyer shall provide
competent representation to a client. Competent representation requires the
legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation. 36
RPC 5.3 addresses responsibilities regarding non-lawyer assistants:
With respect to a nonlawyer employed or retained by or associated with
a lawyer:
(a) A partner in a law firm shall make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that the person's
conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the person's conduct is compatible
with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of such a person that would
be a violation of the Rules of Professional Conduct if engaged in by a
lawyer if:
(1) The lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; or
(2) The lawyer is a partner in the law firm in which the person is
employed, or has direct supervisory authority over the person, and knows
of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action. 37
34. Id. at Rule 9(a)(4).
35. Id. at Rule 9(c).
36. This rule follows the language of the ABA Model Rules of Professional Conduct.
DR 6-101(A)(2) of the ABA Model Code of Professional Responsibility required
"preparation adequate in the circumstances," whereas DR 6-101(A)(3) prohibited the
"neglect of a legal matter." See MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 6-
101(A)(2); DR 6-101(A)(3) (1983). ABA Model Rule 1.1 affirmatively requires the lawyer
to be competent. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.1 (1990).
37. The Washington rule' follows ABA Model Rule 5.3. There was no direct

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Thus, in general, the clinical teacher must ensure competent
representation and take remedial action to avoid or mitigate the consequences
of conduct which would violate the Rules of Professional Conduct.
A law student authorized to engage in limited practice also has attributes
in common with a lawyer working under the supervisory authority of another
lawyer. Model Rule 5.1 and 5.2 govern the relations between supervising and
subordinate lawyers. 38 Like RPC 5.3, Rule 5.1 imposes on a supervisory
lawyer the duty to take reasonable steps to ensure that the conduct of
subordinate lawyers conforms to the model rules. The rules make an
additional observation, however. They explicitly anticipate that supervisory
and subordinate lawyers who share responsibility for a particular action will
reach conflicting good faith conclusions as to the requirements of professional
conduct. Rule 5.2(b), in effect, allows the supervisor to assume responsibility
for resolving such conflict. The rule provides that a "subordinate lawyer does
not violate the rules of professional conduct if that lawyer acts in accordance
with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty". The rule protects the subordinate professionally if the
resolution of a question is later challenged. 39
Although Rule 5.2(b) does not explicitly apply to the law clinic situation
(because law students are not licensed lawyers), it is evidence that the rules
contemplate supervisory intervention for the purpose of resolving good faith
disagreements and not only to prevent irremediable harm. If such
intervention is appropriate between lawyers, the rationale would seem to have
even greater force between clinical teacher and student.
The 1980 Guidelines for Clinical Legal Education, promulgated under
the joint sponsorship of the AALS and ABA, provide that the clinical teacher
should "accompany the student in all proceedings where the effects of the
actions which may be taken can be irreversible, and be prepared to take over
for the student if the client's interests require."
counterpart to this rule in the ABA Model Code of Professional Responsibility. See MODEL
RULES OF PROFESSIONAL CONDuCT RULE 5.3 (1990).
38. The Washington rule follows the ABA Model Rules. There were no direct
counterparts to the MODEL RULES OF PROFESSIONAL CONDUCT Rules 5.1 and 5.2 in the
Model Code of Professional Responsibility. See MODEL RULES OF PROFESSIONAL CONDUCT
Rules 5.1; 5.2 (1990).
39. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.2 comment.
40. Guidelines for Clinical Legal Education, 1980 REPORT OF THE A. OF AMER. LAW
SCHOOLS-A.B.A. COMMITTEE ON GUIDELINES FOR CLINICAL LEGAL EDUCATION,

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B. Beyond the Rules: Balancing the Needs of the Student and the Client
The student practice rules, Rules of Professional Conduct, and the
Guidelines for Clinical Legal Education can generally be interpreted as
defining a minimum standard for teacher intervention. This standard requires
intervention only in cases where a student is in a position to irreparably
damage the client. Although intervention to assure more than minimal
compliance with professional responsibility rules is surely contemplated,
these authorities do not go so far as to impose a standard which would assure
the client the quality of representation which the clinical teacher could
personally provide.
This "irreparable damage" approach to intervention appears to be the
practice of at least some clinical teachers. 4 Based on my discussions with
other clinical teachers, including my colleagues at Gonzaga, the standard for
§ VIII(B)(1). The guidelines reflect a concern for competent client representation in a
number of ways: (1) limitation of student-faculty ratio; (2) limitation of student caseloads;
(3) requirement that client knowingly consent to representation by student; (4) creation of
a "Professional Responsibility Advisory Board to assure that the clinic's practice is in
accordance with the applicable code of professional responsibility; (5) requirement that
malpractice insurance be obtained to cover all client representation activities; (6) clinical
teacher responsibility for ensuring that each student is prepared before the student acts,
including "planning with the student for each event or proceeding in which the student will
participate, anticipating, to the extent possible, all issues which may arise during the event
or proceeding.
41. See, e.g., Aiken, Koplow, Lerman, Ogilvy & Schrag, The Learning Contract in
Legal Education, 44 MD. L. REv. 1047, 1073-75 (1985). In the context of discussing the
utility of learning contracts in clinical education, the authors describe the negotiation of
contracts between law students and clinical teachers at the Center for Applied Legal Studies
at Georgetown University Law Center. Working from the premise that students should have
maximum responsibility for case management and the nature of their clinical educational
experience, clinical teachers proposed a standard learning contract clause which prohibited
teachers from intervening in case handling "by directing decisions or actions except in a rare
instance of imminent error that would seriously damage a client." According to the authors,
the clause implies the "virtually invariable practice of having interns sit at counsel table and
conduct hearings on their own. The [clinical teachers] sit in the back of the courtroom in
order to curb their own tendencies to intervene. Such intervention would reduce the intern's
sense of autonomy." See also Barnhizer, supra note 11, at 73 (the "avoidance of
irremediable harm to both clients and students is the first responsibility of the clinical
teacher"); Meltsner & Schrag, supra note 4, at 25 (Intervention may be necessary in the
"extremely rare case in which an intern has offered irreparably damaging advice, or has
treated the client in a hurtful way." If a student's "mistake" can later be corrected,
intervention is not required.).

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intervention actually employed varies from teacher to teacher. Roughly
speaking, there are two camps. Some teachers will intervene only when they
believe it necessary to avoid irreparable harm. Others tend to intervene when
they believe student work or performance, while minimally competent,
seriously departs from the level of skill and judgment the teacher would bring
to bear on the particular case.
The "irreparable harm" group views leaming from mistakes and selfdiscovery
as crucial to the student's clinical education. Some proponents of
this view question the presumption that the teacher's judgment of how to
handle a case is always better or more accurate than the student's. 42 They
are willing to sacrifice efficiency and control for the perceived educational
benefits derived from student autonomy so long as malpractice is avoided and
the Rules of Professional Conduct are not violated. Individuals in this group
implicitly see themselves more as teachers than lawyers.
The other group represents the view that the client's interests are
generally superior to the student's educational needs and desires. The
proponents of this view are concerned that clients not be used as guinea pigs
in the effort to train law students. They believe that it is not sufficient simply
to avoid malpractice. The client also has an interest in reasonably efficient
representation and in avoiding anxiety and demands caused by student
mistakes and delays. An additional concem is that it is not appropriate to
inflict on the legal system and other participants in the adjudicative process
inordinate strain on resources and time which may result from repeated, albeit
remediable, student mistakes. Intervention for teachers of this persuasion is
therefore more likely to occur because the teacher implicitly places the
interests of the client (and perhaps the system) over those of the student. Put
another way, intervention is more likely when the teacher identifies more with
his or her role as lawyer than teacher. 43
42. See Meltsner & Schrag, supra note 4, at 26.
43. There are, of course, other considerations which may influence a clinical teacher
to be more or less intervention-prone. Depending on the student, case and educational
objectives of the particular clinic, the teacher may decide that intervention is necessary for
reasons quite apart from professional responsibility concerns. For instance, the teacher may
feel that a particular legal task or student is more effectively taught by demonstrative means.
The teacher might intervene in order to support emotionally a student whose confidence is
shaken and who has requested intervention. Finally, intervention may be motivated by
personal concerns having little to do with professional responsibility or pedagogy. There
is probably nothing more stressful and draining for the clinical teacher than suffering

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The difference in views on intervention is not surprising. The purpose
of clinical student practice, in addition to technical skills training, is to
provide students an opportunity to develop sound and independent legal
judgment, including good moral judgment. The naked assumption of
professional responsibility for a real client will not guarantee ethical or
competent behavior on the part of the student any more than it does for the
practicing lawyer. However, the failure to allow a student to, in fact, be
responsible for a client increases the likelihood the student will not fully
explore or reflect on what it means to be a lawyer and will treat professional
responsibility as simply another set of rules to be learned on the path to the
bar.' Intervention, therefore, may be regarded as an obstruction to the
student's professional growth, or may be viewed as appropriate in order to
protect the client and avoid the student's perception that it is acceptable to
subordinate the client's interest to that of the student.
For the clinical teacher, somewhere between the roles of teacher and
lawyer lies the obligation to assess the dangers that can result from allowing
a student to "practice" professional responsibility on a real human being.
Criteria must be identified and articulated for determining when clientcentered
experiential learning presents an unacceptable risk of harm to the
client or others.
C. Using Core Values as Criteria for Intervention Decisions
Clinical teaching, like the practice of law, is an endeavor complicated by
many variables. Students, like clients, will differ in their strengths, weaknesses,
and goals. The personality, experience, intelligence and moral vision
a student brings to the clinic will affect how that student relates to clients,
perceives problems, formulates solutions, makes decisions, and evaluates
results. The same variables will affect how a teacher relates to and interacts
with students.
Because of the dynamic and variable nature of the process, the task of
through a poor student performance. The desire to avoid such stress may be a conscious
or unconscious factor in many decisions to intervene. See generally P. Hoffman & K.
Sullivan, supra note 7.
44. See Redlich, The Moral Value of Clinical Legal Education: A Reply, 33 J. LEGAL
EDUC. 613 (1983); Clinical Legal Education, 1980 REPORT OF THE A. OF AM. LAW
SCHOOLS - A.B.A. COMMrrTEE ON GUIDELINES FOR CLINICAL LEGAL EDUCATION, Project
Director's Notes § IX.

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the clinical teacher is both routinized 5 and endlessly creative. The unique
combination presented in every new mix of student, teacher, client, and legal
problem makes it difficult to define or prescribe with any precision a uniform
standard for teacher intervention. Nonetheless, there are discrete professional
responsibility values common to all intervention decisions. These values
emanate from codified ethical rules and can be identified by asking the
following questions:
1. Is the client's relationship primarily with the student or with the
clinical teacher?
2. Has the client consented to primary representation by the law student
and been adequately informed of the advantages and disadvantages
of student representation?
3. Is the clinical teacher familiar with the personality type, technical
skill, and overall competency of the law student?
4. Is the clinical teacher as fully apprised of the facts, law and legal
strategy as the student?
5. Will intervention by the clinical teacher, even if not required to
prevent irreparable harm, significantly avoid the imposition of
additional burdens on the client, court and other interested parties?
1. The Student-Client Relationship
The first question focuses the teacher's attention on the reality of who
is representing the client. If the student is assigned primary responsibility 46
45. The task is routinized in the sense that clinical teachers should teach generic
competencies to all students regardless of student and case variables. Because students tend
to solve a problem any way they can, they are more likely to use their strongest skills than
to try to overcome their deficiencies. They learn to survive only on these strengths unless
the clinical teacher designs a system for assuring minimum proficiency over a full range of
core competencies which apply to all legal tasks. An analysis of the reasons for designing
a systems approach to teaching legal competencies is set out in Cahn, Clinical Legal
Education from a Systems Perspective, 29 CLEV. ST. L. REv. 451 (1980). Although clinical
teachers may disagree on what constitutes the set of "core" competencies, the Antioch model
of lawyering competency is widely accepted. That model encompasses six major
competencies: (1) oral competency, (2) written competency, (3) legal analysis competency,
(4) problem-solving competency, (5) professional responsibility competency, and (6) practice
management competency. Cort & Sammons, supra note 14, at 406.
46. By "primary" I mean that the student has responsibility for all phases of client

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for the case or a particular task but in reality that responsibility has been
assumed by the clinical teachere 7 , then considerations about disturbing the
student-client relationship will be less important. Communication and
decision-making take on a markedly personal and confidential quality in the
lawyer-client relationship. 48 A client's confidence in one individual is not
automatically transferrable to another. The client is likely to expect that the
person with whom the client has an established primary working relationship
will be the person who performs a given task. If that person is the clinical
teacher and not the student, it would be appropriate for the teacher to carry
out the required lawyering task both from the standpoint of honoring the
client's legitimate expectations and because the teacher may be better
informed and prepared. On the other hand, if the primary lawyer-client
relation is with the student, intervention by the teacher could be disruptive.
2. The Client's Informed Consent
The second question, dealing with the client's "informed consent,' ' 9
is related to the first but goes further by requiring the clinical teacher to
ascertain the degree to which the client comprehends and voluntarily assumes
any risks associated with representation by a student rather than a more
experienced lawyer. Some states and the ABA model student practice rule
require the written consent of the client before a student can appear in court
or an administrative tribunal on the client's behalf. 5 " Washington's APR 9
representation. It is primary instead of exclusive in the sense that the clinical teacher also
has professional responsibility for the client and a duty to adequately supervise the work of
the student.
47. There are a number of reasons why primary responsibility for representing a client
can shift from student to teacher. Practical reasons include scheduling problems, illness, and
caseload demands-in short, the same factors which operate in all law offices. Pedagogical
reasons also come into play. These include the teacher's assessment of whether the
particular case, as it develops, will meet the student's need for acquiring certain
competencies. For example, the teacher may take over primary responsibility for a
guardianship matter because the student has already demonstrated proficiency in the
demands of guardianships and needs to be challenged in other areas.
48. MODEL RULEs OF PROFESSIONAL CONDUCr Rules 1.2, 1.4 and 1.6 (1990).
49. Some commentators have argued that the doctrine of informed consent, as applied
to medical decision-making, must be applied to legal decision-making. See, e.g., Spiegal,
Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128
U. PA. L. REV. 41 (1979). My argument is that at least the creation of the lawyer-client
or student-client relationships should be accorded the values of informed consent.
50. See, e.g., LA. Sup. CT. R. § XX(3); MODEL RULE § II.A.

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requires only that the client be informed of the "legal intern's status." 5 ' No
jurisdiction appears to formally require a detailed explanation of risks which
might inhere in the client's acceptance of student representation.1 2
Both common sense and ethical standards suggest the importance of
selecting a lawyer on an informed and intelligent basis. 53 While it is true
that many low income persons come to law school clinics as the last resort for
legal representation, this is certainly not always the case,' and should not
51. WASH. Sup. CT. ADMISSIONS TO PRACTICE Rule 9(c)(2): ".... a legal intern and
the intern's supervising lawyer or a lawyer from the same office shall, before the intern
undertakes to perform any services for a client, inform the client of the legal intern's status."
52. Student practice in criminal settings may have constitutional implications where
the client has a sixth amendment right to appointed counsel. At least one court has
questioned whether a student supervisor who merely sits in the back of a courtroom and
observes the performance of a student meets the constitutional requirements of "zealous and
active counsel" and representation in a "substantial sense" not merely "pro forma." People
v. Perez, 82 Cal. App. 3d 952, 147 Cal. Rptr. 34 (1978), vacated, 24 Cal. 3d 133, 594 P.2d
1, 155 Cal. Rptr. 176 (1979). Student representation will ordinarily satisfy an indigent
defendant's right to counsel where supervised criminal practice is specifically authorized
under properly promulgated rules. See id. at 139-42, 594 P.2d at 4-7, 155 Cal. Rptr. at 180-
82. See also Hardaway, Student Representation of Indigent Defendants and the Sixth
Amendment: On a Collision Course?, 29 CLEV. ST. L. REv. 499 (1980). However, in those
jurisdictions where student practice is not so recognized, it would arguably be
constitutionally necessary to secure a voluntary, knowing, and intelligent waiver of counsel.
Carnley v. Cochran, 369 U.S. 506, 516 (1962); Faretta v. California, 422 U.S. 806, 835
(1975); Brady v. United States, 397 U.S. 742, 748 (1970). Even if student representation
satisfies an indigent defendant's right to appointed counsel, the representation must also be
constitutionally "effective" under the standard enunciated by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984). A defendant is deemed to have
received ineffective assistance of counsel when (1) the acts or omissions of counsel fall
below an objective standard of reasonableness (i.e., they fall outside the wide range of
professionally competent assistance) and (2) there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different. Id.
at 690-94.
53. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 2-6, EC2-7, EC 2-8, and
EC 7-5 (1983); MODEL RuLES OF PROFESSIONAL CONDUCT Rule 1.2, Rule 1.4, and Rule
7.1 (1990). See also Leleiko, supra note 15, at 929.
54. The Gonzaga University Law School clinic accepts almost exclusively low income
clients. However, there are many circumstances in which the client may have alternative
representation available. Many criminal cases can be referred to the local public defender.
Public entitlement and housing cases can be referred to the local legal services provider.
Family law and other matters involving the possibility of a statutory attorney fees award
might be referred to the private bar. Although it is often difficult to assess how realistic it
is to expect a prospective client to find other counsel, it is important that the client

1990/91]
STUDENT PRACTICE
in any event justify a failure to fully apprise a prospective client that primary
responsibility for his or her case will rest with a relatively inexperienced
student. To the extent a client lacks information or receives ambiguous
information concerning the nature of the representation, the client arguably
has a claim to a level of services which can be personally delivered or
performed by the licensed lawyer charged with professional responsibility for
the case-the clinical teacher. In such circumstances intervention may be
appropriate to avoid exposing the client to risks which he or she did not
knowingly and voluntarily assume. 55
3. The Teacher's Familiarity with the Student
The third question relates to the clinical teacher's ability to diagnose and
evaluate the student's aptitude and competency for accomplishing a particular
lawyering activity. If the teacher is not in a position adequately to judge and
anticipate how the student will respond to unexpected events, the question
whether to intervene will call for speculation and should be resolved in favor
of the more reliable representation by the clinical teacher.
There is no such thing as competency per se. 56 There are, however,
certain generic competencies which would apply to most, if not all, lawyering
tasks. If the teacher observes that necessary underlying skills appear to be
manifested adequately or inadequately by the student over a number of
occasions, the teacher will be more able to generalize about what is likely to
occur in the future. 57 The student may be regarded as more or less
competent in relation to the observation processes that lead to the teacher's
conclusion. Hence, even if a student has never actually conducted jury voir
dire before a live jury, the clinical teacher might confidently predict how the
understand and participate in the decision to accept student representation.
55. To ensure the prospective client fully understands and accepts representation by
a student, the advantages and disadvantages of such representation should be explained. For
example, the explanation of advantages might include the fact that the student has a low
caseload and abundant time to work on the client's case. Disadvantages would include the
student's lack of experience and possible consequences that might flow from such
inexperience. The client should also be advised of the nature and degree of supervision
which the student will receive from clinical teachers. Information should be given the client
about the student's stage of progress through law school and status under the applicable
student practice rule. See Hardaway, supra note 52. Hardaway discusses guidelines for
right to counsel waivers in criminal cases involving student representation.
56. Cort & Sammons, supra note 14, at 430.
57. Id.

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student will perform if the teacher knows something of the student's
proficiency in the relevant underlying competencies (e.g., oral, problemsolving,
and professional responsibility competencies). 5 8
The clinical teacher will also want to be familiar with the personality
type of the student in order to predict future behavior and judgment.
Character traits are important dimensions of lawyering competency and
should be evaluated as such. The clinical teacher should take special care to
protect the client from the immature or emotionally unstable student. This
may be especially difficult for the busy teacher who is otherwise blinded by
the student's intellectual brilliance or technical skill.
Ideally the clinical teacher should not be in the position of supervising
the performance stage of lawyering activity without having adequately
evaluated the student regarding relevant competencies and emotional
maturity. The need to intervene will largely correspond to the teacher's
confidence in predicting how the student will handle the unexpected. Where
the teacher, for whatever reason, lacks the diagnostic data necessary to predict
student competence, 59 intervention should be liberally employed to ensure
reliable representation.
4. The Teacher's Familiarity with the Case
The fourth question dovetails with the concerns raised in the third
question but with a focus on the clinical teacher's competency to perform the
lawyering activity in question. Intervention implies that the teacher can
personally perform the task more competently than the student, or in a manner
more likely to comply with relevant ethical demands.6 The clinical teacher
will presumably be more proficient in both the generic and specific
competencies expected of a lawyer. But if the teacher is not personally well
58. See generally Cort & Sammons, supra note 14, at 406 (for a discussion on
identifying and evaluating generic and specific lawyering competencies).
59. Clinical teachers will have more or less data depending on the supervisory model
employed by the clinic, caseload variables, the student's prior clinical experience, and the
availability and reliability of evaluative information communicated by other clinical teachers.
60. A student may be performing in a perfectly competent fashion in terms of
furthering the client's goals but may run afoul of other ethical rules in the process..
Intervention may be necessary not to protect the client, but to protect another value deemed
important. An example would be intervention for the purpose of terminating a student's
cross-examination of a witness based on evidence the student knows is irrelevant or
inadmissable. See MODEL RULES OF PROFESSIONAL CoNDucr Rule 3.4(e).

1990/91]
STUDENT PRACTICE
prepared and apprised of the facts, law and legal strategy necessary for
competent representation in the specific case, it is less likely intervention
would accomplish its intended purpose of remedying unsatisfactory student
performance. This is, of course, the worst of all possible situations for the
clinical teacher and a dilemma which, in itself, arguably constitutes
unprofessional conduct. 6 ' While the chances of a conscientious clinical
teacher being totally unprepared to take over for a student are remote, the
teacher's level of preparation and knowledge will not be constant from case
to case. A teacher's ability to improve on the performance of a student will
be limited by the degree to which the teacher lacks relevant and specific
information. To that same extent, the clinical teacher should exercise caution
in assuming direct responsibility for representation. A conservative approach
to intervention in such circumstances will also minimize any danger that the
uninformed teacher will merely substitute his or her style of advocacy or
preferred choices for the disparate and possibly more thoughtful conduct of
the student. 62
5. Burdens on the Client and the System
Issues raised by the fifth question relate to the need for intervention in
those situations where student representation is not inimical to an ultimate
outcome favorable to the client but significantly impacts the client or legal
system in collateral ways. Even if interventi3n is not necessary to assure the
desired result, the clinical teacher should consider the consequences of student
performance in terms of delay, financial and emotional costs to the client, and
impact on the resources of the court and interested parties.
A lawyer has a duty to "act with reasonable diligence and promptness
in representing a client ' 63 and to make "reasonable efforts to expedite
61. See MODEL RULES OF PROFESSIONAL CoNDucT Rule 1.1 and Rule 5.3 (1990).
The development of professional responsibility "requires students to be challenged by
teachers who present role models which express that professional responsibility is
important." Leleiko, Love, Professional Responsibility, The Rule of Law, and Clinical Legal
Education, 29 CLEV. ST. L. REv. 641, 656 (1980).
62. The clinical teacher has professional obligations to both student and client. This
does not mean the teacher should simply substitute his or her decisions for those of the
student when both are reasonable under the circumstances. To do so would deprive the
client of the potential benefits flowing from a close working relationship with the student.
It would also deprive the student of the opportunity to fully explore and test his or her
decisions in a tolerant and encouraging environment.
63. MODEL RULES OF PROFESSIONAL CONDucT Rule 1.3 (1990).

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litigation consistent with the interests of the client." ' Unnecessary or
excessive delay in handling a client's case can adversely affect the client's
interests. Even if the delay does not affect substantive or procedural rights,
it may cause the client needless anxiety. It may also frustrate the prompt and
efficient work of courts or administrative tribunals.
Lawyers also have a duty of fairness to the opposing party and
counsel 6s and an obligation to respect the rights of third persons.' A
lawyer's responsibility to the client does not imply that it is acceptable to
unnecessarily embarrass, delay or burden others. Substantial legal reasons
may, of course, dictate a course of conduct which does have these effects.
But responsible professional conduct should take into account the larger
context in which the lawyer operates and the power he or she has over lives
of others. 67
Where the clinical teacher believes intervention will expedite resolution
of the legal problem and save time, money and anxiety for the client and
64. Id. at Rule 3.2.
65. Id. at Rule 3.4.
66. Id. at Rule 4.4.
67. The clinical teacher who neglects these considerations can endanger the student's
professional responsibility growth by showing indifference to standards of professional
conduct not directly related to achieving the client's objectives. If clinical teachers are to
avoid sending the message that "winning" is the only standard to be valued in our system
of justice, it is essential that teabhers as well as students undertake an analysis of their
feelings towards professional responsibility-particularly their feelings about the value of
caring for and responding to the needs of others. See R. JACK & D. C. JACK, supra note
3; Leleiko, supra note 61, at 656. In 1986, the ABA commission on professionalism issued
a report which was approved for distribution, but not adapted formally as ABA policy, by
the ABA House of delegates. The report has proved highly influential. Section B(5) of the
report states: "The Bar should place increasing emphasis on the role of lawyers as officers
of the court, or more broadly, as officers of the system of justice.. . [Lawyers] have a duty
to make the system of justice work properly."
The ABA House of delegates adopted the ABA Creed of Professionalism in 1988
which states in part:
As a lawyer I must strive to make our system of justice work fairly and
efficiently . . . I will endeavor to achieve my client's objectives . . . as
expeditiously and economically as possible ... I will advise my client against
... insisting on tactics which are intended to delay resolution of the matter or
harrass or drain the financial resources of the opposing party . . . I will
remember that, in addition to commitment to my client's cause, my responsibilities
as a lawyer include a devotion to the public good.

1990/91]
STUDENT PRACTICE
others, there should be less reluctance to take over primary responsibility for
the relevant task. For example, in supervision of a student-conducted
deposition, intervention may not be necessary to prevent irreparable harm to
the client's cause. But it may be desirable and appropriate to avoid the
necessity of having to reconvene the deposition at a later time to ferret out
information which the student missed.
It may be argued that the clinical teacher will always be in a superior
position to expedite litigation and minimize emotional and financial costs to
the client and others. The discussion concerning other intervention
considerations indicates this is not the case. In any event, this criterion for
intervention will necessarily have to be weighed and balanced against those
other considerations.
The five listed considerations are by no means exclusive. They do,
however, encompass values at the core of the clinical teacher's professional
responsibility to clients. These can be summarized as follows:
1) Respect for the client's professional relationship with the student and
expectations flowing from that relationship;
2) Respect for the client's right to make an informed decision about
student representation and its. advantages or disadvantages;
3) Concern for the client reflected by the clinical teacher's ability to
adequately diagnose and predict student competencies;
4) Concern for the client reflected by the clinical teacher's personal
readiness and competence to assume client representation
responsibilities; and
5) Concern for adverse collateral consequences to the client and others
which might be avoided through intervention.
III. CORE VALUE CRITERIA IN OPERATION
I recently supervised a third year law student who conducted the defense
of a young man charged with the crime of reckless driving. Conviction of this
charge in Washington subjects a defendant to a mandatory loss of license, a
fine, and possible time in jail. 68 The client elected a jury trial because of his
belief that a judge would be more prone to credit the testimony of the police
68. WASH. REv. CODE § 46.61.500 (1991).

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officer. 69 The law student had thoroughly and energetically prepared the
case for trial. She had established an excellent relationship with the client and
defense witnesses, had explored all prospects for a negotiated plea, and was
convinced that the client could prevail at trial. However, she had never before
tried a case (to a judge or jury) and approached the experience with great
anxiety and some trepidation.
The trial lasted one and one-half days. There were no major
prosecutorial surprises, no unexpected evidentiary or jury instruction rulings
from the bench, and no significant or prejudicial mistakes on the part of the
student prior to closing argument. The case had gone as well as might be
expected from the defense perspective, but was still a close call as the jury
was, in effect, being asked to believe the testimony of a teen-age driver over
the purported eye-witness account of an experienced police officer. The
student believed, and I concurred, that an effective closing argument
emphasizing reasonable doubt would be critical to influencing the jury's
deliberations. The closing had been thoughtfully prepared before trial and
was fime-tuned during trial to more precisely reflect the weight of the
evidence on the question of the officer's credibility.
Following a reasonably persuasive closing argument by the prosecutor,
the student rose to her feet, approached the jury, and promptly froze. Some
twenty or thirty seconds went by. She was obviously floundering,
embarrassed, and suffering an acute mental block. More seconds. Finally,
the student asked the court for permission to consult with me at counsel table.
In whispered, halting desperation, the student implored me to tell her what to
do. She had forgotten her argument and was feeling psychologically
paralyzed.
I offer this anecdote as an opportunity to examine the problem of
intervention and role conflict for the clinical teacher in light of the
considerations discussed above. Should I have "taken over" and given the
closing argument myself? Should I have "forced" the student to persevere?
The core value criteria as developed through use of the suggested five
questions can guide the decision.
First, the student unquestionably had primary responsibility for client
representation. She had spent numerous hours with the client and witnesses
69. The Washington State Constitution has been construed to grant the right to trial
by jury for all offenses punishable by incarceration.

1990/91] STUDENT PRACTICE
439
and had personally conducted the fact investigation, legal research, plea
negotiations, and trial preparation. I had met the client and discussed the case
generally with him for perhaps one half hour. I had similar limited contact
with four defense witnesses and had not met two other defense witnesses and
two prosecution witnesses at all. All pre-trial communication with the
prosecutor had been through the student. It was clear the client looked to the
student as primary counsel and expected her to have primary responsibility
at trial. My inclination to intervene under these circumstances was minimal.
Second, the client had been fully informed at the outset that the student
would primarily handle his case under the supervision of a clinical teacher
(not necessarily me). He was aware the student was a third year law student
authorized to practice under Washington's student practice rule. He was also
informed that the student had never before handled a criminal case or tried a
case to a jury. Importantly, the client also was told about the potential
availability of public defender services and was apprised of the estimated cost
of securing private counsel. The fact that this was an educational experience
for the student was communicated together with the fact that she was
committed and prepared to give the case as much attention as necessary.
Thus, it was apparent to me that the client voluntarily and intelligently
accepted student representation, chose to forego other options, and did not
reasonably expect me to personally perform any or all of the requisite
lawyering activities. His informed consent militated against a decision to
intervene.
Third, I had worked closely and extensively with this particular student
on other matters. I was reasonably confident from observing and evaluating
her core areas of competence that I could predict her ability to perform in the
courtroom. My confidence was buttressed by information I had received from
clinical colleagues who had also worked with the student. I was prepared, in
particular, to largely defer to the student in matters involving oral
communications, tactical choices, and ethical judgment. As to the student's
competence to quickly and accurately analyze important legal principles and
doctrine, I was less sure, but this would not be a major factor in presenting the
closing argument. 7 ' In general, my confidence in my own ability to judge
70. The student had no prior experience with the criminal law outside of required law
school courses in criminal law and criminal procedure. While not generally deficient in
legal analysis, it was not her chief interest or strength. For that reason I was prepared to
intervene more quickly in those aspects of the trial involving more pure legal

GONZAGA LAW REVIEW
[Vol. 26:2
the student, together with my conclusion that the student was capable of
competently performing in court led me to resist any temptation to intervene.
Fourth, I was reasonably sure of my own ability to competently take
over if necessary. I had substantial trial experience in criminal matters, taught
a law school course in criminal procedure, and was familiar with the facts,
strategy, and law of this particular case through close supervision of the
student. I was generally not adverse to intervening for reasons of my own
inadequacy. Nonetheless, the question of my intervention specifically at the
closing argument stage bears closer scrutiny. Although I supervised and
critiqued the student's preparation of her closing argument, had observed her
practice the argument, and was familiar with the theory of the case articulated
in the argument, it was in the final analysis the student's argument. It had
been built and organized around her perceptions of what the evidence showed
and reflected a style, organization, and emphasis comfortable and unique to
the student. I had not prepared my own argument and could not have easily
or comfortably given the one prepared by the student. I would have had to
somewhat spontaneously jerrybuild an argument if I were to take over for the
student. I was therefore less than certain that intervention at this point would
produce more effective results then the student was capable of producing.
Fifth, although the client undoubtedly suffered some significant anxiety
and fear as a result of the student's apparent inability to proceed with closing
argument, he also had every reason to feel positive about the student
representation he had received up to that stage of the proceeding. There were
no apparent adverse consequences to others which might flow from a choice
not to intervene. I was not inclined, absent irremedial harm to the client's
ultimate goal of winning, to intervene simply to avoid a moment of stress for
the client.
On balance, the weight of these five considerations, examined from the
sober and magnified perspective of this article, favors a decision not to
intervene. In fact, that was my choice. The real world result was that the
student gradually regained her composure and concentration. She managed
to deliver an argument which was emotionally and intellectually persuasive.
The jury acquitted the defendant.
argument-particularly jury instructions.

1990/911
STUDENT PRACTICE
IV. CONCLUSION
Law students will better understand the role and responsibility of being
a lawyer through the assumption of responsibility for real clients under a
properly structured model of clinical supervision. The clinical teacher needs
to be sensitive to both the student's educational needs and the teacher's
professional obligations to the client. Student practice rules, professional
conduct codes, and law school clinical education guidelines do not precisely
guide the clinical teacher in determining when it is necessary to actually "take
over" direct client representation in order to assure competent representation
and compliance with mandated standards of professional conduct.
Some clinical teachers will emphasize their role as teachers and
intervene only when necessary to prevent irreparable harm to the client.
Others will interpret their role as lawyer as requiring more proactive direct
intervention when the student's performance is minimally competent but
seriously departs from the way the teacher would perform the particular
lawyering activity. Because clinical representation is complicated by
numerous student, client, case, and teacher variables, it is difficult to prescribe
specific standards to govern teacher intervention. However, core values
relevant to the question can be gleaned from professional conduct rules.
These include considerations which focus on client expectations, student
competency, teacher competency, and the interest of the client and others in
minimizing delay, financial costs, and emotional discomfort. Conscientious
clinical teachers should attempt to balance these considerations in an effort to
ensure that intervention decisions reflect proper professional responsibility
concerns.