professional responsibility, student practice, and the clinical

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