professional responsibility, student practice, and the clinical

1990/91]
STUDENT PRACTICE
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.