professional responsibility, student practice, and the clinical

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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.
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