professional responsibility, student practice, and the clinical

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GONZAGA LAW REVIEW [Vol. 26:2 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,
1990/91] STUDENT PRACTICE 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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