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GONZAGA LAW REVIEW [Vol. 26:2 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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