professional responsibility, student practice, and the clinical

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GONZAGA LAW REVIEW [Vol. 26:2 the way people learn. 9 But unless the criticism is palpable to the client, it is not intervention in the sense that the clinic teacher has directly assumed responsibility for performing the lawyering activity in question."° I use the term "clinical teacher" to denote one who has obligations of a professional nature to the client but, unlike the supervising attorney operating 9. For a discussion of cooperative versus competitive and coercive teaching in the law clinic, see Condlin, Socrates' New Clothes, supra note 6. Condlin stresses the value of interacting and communicating in a "learning" rather than a "persuasive" mode in order to avoid teacher domination and manipulation of the student. The learning mode is characterized by the identification, disclosure, and non-coercive discussion of value preferences implicit in teaching; the persuasive mode is "hide the ball" teaching whose objective is to convince others while minimally disclosing one's values, motive or purpose and without considering the other's ideas or views. Condlin argues that too much clinical teaching is of the persuasive mode variety and therefore not distinguishable from the more manipulative (Socratic) classroom techniques clinical teachers profess to avoid. But see Spiegelman, supra note 1, at 246-47 ("[E]xcept in clinics and practice-skills courses, in teaching about alternative dispute resolution, and in humanistic approaches to legal education, cooperation is largely neglected .... " See R. JACK & D.C. JACK, supra note 3 (for a general discussion of the failure of traditional law school teaching methods to help students confront and bridge the gap between professional ethics and personal morality). The authors argue that law schools model what they teach on, an adversarial system, and that traditional combative teaching techniques must be modified or supplemented with more cooperative, less alienating forms of instruction. Id. at 44-47, 166-67. 10. Professor Condlin defines clinical practice instruction as "strategic intervention by law teachers in student performance of lawyering tasks." Condlin, Socrates' New Clothes, supra note 6, at 223. He defines intervention more broadly than I by reference to the following concept: "[In intervening] ... a [teacher] ... assists a [student] to become more effective in problem-solving, decision-making and decision implementation in such a way that the [student] can continue to be increasingly effective in these activities and have a decreasing need for the [teacher] .... " See Condlin, id. at 223 n.1 (quoting C. ARGYRIS, INTERVENTION THEORY AND METHOD: A BEHAVIORAL SCIENCE VIEW 15-16 (1970)). Condlin believes it is preferable to intervene non-coercively. See supra note 9. However, he acknowledges that there are ethics-driven instances in clinical education when coercive behavior on the part of the teacher would be appropriate: "For example, if a student fails to contact a client to close material gaps in the client's story and the deadline for filing pleadings approaches, the teacher may raise his voice or tie the failure to contact the client to some external sanction. These actions are coercive, in that they are threats rather than new substantive arguments about the correctness of contacting the client but would often be appropriate for letting the student know that client interest in competent representation takes priority over student freedom to choose whether to be competent." Id. at 239 n.42. Even coercive direction of this kind is not intervention for purposes of my discussion because it does not entail direct intervention between student and client in the sense that the clinic teacher actually "takes over" performance of the lawyering task from the student.
1990/91] STUDENT PRACTICE in a non-educational setting, also has an explicit pedagogical responsibility to the student. That responsibility may vary as a function of curriculum and clinical program design but, at its core, it means the clinical teacher values and addresses the students' educational needs and expectations as a substantial and independent set of professional concerns. 1 The supervising attorney in the non-clinic setting may seek to further a law student employee's education either out of genuine concern or because it is in the employer's business interest to do so. However, it is likely the effort will be incidental to the employer's principal goal of servicing clients and will lack the structure and methods necessary to address the student's individual educational needs. 12 Clinical teaching, on the other hand, is distinguished by the very fact that educating students is the business of the clinic. 3 11. See Barnhizer, The Clinical Method of Legal Instruction: Its Theory and Implementation, 30 J. OF LEGAL EDUC. 67, 72 (1979). Barnhizer warns that mere exposure of law students to the experience of client representation and responsibility is, in itself, an unreliable teaching method which presents unjustifiable risks for clients and for students. He argues that the clinical method must integrate the following three factors: (1) a substantive, but restricted, volume of actual client representation by the student; (2) the clear assumption by the individual student of "primary" professional responsibility for the process and outcome of that representation; and (3) an individualized teaching relationship between the student and clinic teacher, using the student's clinical experience as its focus. See generally Stone, Legal Education on the Couch, 85 HARV. L. Rnv. 392, 431-36 (1971); Kreiling, supra note 1; Hoffman, supra note 1. 12. Meltsner, Rowan, and Givelber examine the problem of inadequate supervision of junior lawyers in big city law firms. Based on interviews with a number of supervisors and supervisees in large and mid-size private firms, the authors conclude that many law firms do not pay significant attention to the process by which new lawyers learn on the job. The reasons for such inattention include the cost and pace of modem legal practice (which run counter to reflective supervision) and, interestingly, the failure of legal education to identify effective supervision as a matter that belongs in the curriculum. Meltsner, Rowan & Givelber, The Bike Tour Leader's Dilemma-Talking About Supervision, 13 VT. L. REV. 399 (1989). See also Henning, The Lawyer as Mentor and Supervisor, LEGAL ECON., Sept.- Oct. 1984, at 20, 21. Henning believes it is difficult for the task-oriented lawyer "supervisor" to also be a trusted "mentor," i.e., one who counsels and teaches. 13. I am not suggesting that working part-time as a clerk or intern during law school is necessarily harmful. It may be educationally beneficial to law students, particularly those who lack an opportunity for skills training in law school courses and who are fortunate enough to be "mentored" by an employer supervisor who focuses on the student as well as the task. See Pipkin, Moonlighting in Law School, AM. B. FOUND. RES. J. 1109, 1162 (1982); Zillman & Gregory, Law Student Employment and Legal Education, 36 J. LEGAL EDUC. 390 (1986).
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