professional responsibility, student practice, and the clinical

GONZAGA LAW REVIEW
[Vol. 26:2
II. DEVELOPING CRITERIA FOR INTERVENTION
A. Student Practice Rules and the Codified Rules
of Professional Responsibility
The applicable student practice rules and ethical code are a logical point of
departure in assessing the clinical teacher's obligation to intervene.' 4 A
positive declaration from such sources that intervention is required would
obviously resolve the question from a practical standpoint. Ignoring such a
mandate would jeopardize the professional status of teacher, student, and the
entire clinical program-regardless of any judgment by the teacher that the
client's interest had been adequately protected.
The majority of states have authorized limited student practice either by
statute, court rule, or state bar regulation. 5 The American Bar Association
Model Student Practice Rule authorizes student representation of all persons,
14. Of course, the best strategy for dealing with the problem of intervention is to
preclude the necessity altogether through thorough and effective student preparation.
The very novelty of lawyering to the student demands that the clinical teacher
recognize the special and profound teaching responsibility that is owed to the
student and the client. Students should not be allowed to fail at a task because
they did not understand it or because it had never previously been attempted
by the student. The clinical teacher's responsibility is to be certain that the
student understands what is expected. All tasks should be "mooted" or
simulated before the actual task is performed. The student is entitled to this
degree of preparation to increase the likelihood of successful performance. The
client, who no doubt will be a low income person for whom the clinical
program serves as lawyer of last resort, is entitled to at least this much
protection.
Cort, A.AL.S. Clinical Legal Education Panel: Evaluation and Assessment of Student
Performance in a Clinical Setting, 29 CLEV. ST. L. REV. 603, 616 (1980). Nonetheless, the
unanticipated problem or event does arise in the clinic as it does in all law offices. No
matter how rigorous and systematic the clinical system is for teaching and assessing student
skills and competencies, situations will inevitably develop which strain the student's
capability to competently respond. See Cort & Sammons, The Search for "Good
Lawyering": A Concept and Model of Lawyering Competencies, 29 CLEV. ST. L. REv. 397
(1980) (for an excellent discussion on the pioneering efforts of the Antioch School of Law
to develop concepts, definitions, methods, and instruments for evaluating lawyering
competency in the clinical setting).
15. Leleiko, State Federal Rules Permitting the Student Practice of Law:
Comparisons and Comments, in BAR ADMISSION RULES AND STUDENT PRACTICE RULES:
A REPORT 914 (1978).