professional responsibility, student practice, and the clinical

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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).
1990/91] STUDENT PRACTICE including indigents. 6 The model rule authorizes student appearance in any court or administrative tribunal with the written consent of the client and the supervising attorney.' 7 In-court supervision is not required unless the client has a right to assignment of counsel under applicable law.' 8 In addition, an eligible law student may engage in "other activities.., outside the personal presence of [the supervising] lawyer", including preparation of pleadings, briefs and other legal documents.' 9 Although the rule does not specifically address client interviewing and counseling, formal discovery activities, or motion practice, it is reasonable to conclude these are authorized "other activities." An eligible law student must have completed at least four semesters of legal studies, be certified by his or her law school dean as being of "good moral character and competent legal ability, and as being adequately trained to perform as a legal intern."20 The student must also certify in writing that he or she has read and is familiar with the applicable rules of professional conduct. 2 ' The supervising lawyer under the rule must be approved by the law school dean, must assume personal professional responsibility for the student's guidance and for the quality of the student's work, and must assist the student in preparation "to the extent the supervising lawyer considers it necessary." 22 Most jurisdictions authorizing student practice allow student appearances in trial courts. 23 Some states condition appearances on the discretion of individual judges. 24 States vary on the requirement of in-court supervision, sometimes distinguishing between criminal and civil matters, and 16. MODEL RULE RELATIVE TO LEGAL ASSISTANCE BY LAW STUDENTS, Section II.A [hereinafter MODEL RULE]. The Rule was amended in February, 1979 to expand student representation from indigents only to all persons. This was based on the ABA Section of Legal Education and Admissions to the Bar conclusion that: "Restricting the students' clinical experiences to representation of indigents, and to legal problems involving indigents, severely and unnecessarily restricts the educational opportunities of students, and the opportunities of law school faculties to provide their students with a broad range of practical experience." 17. MODEL RULE § II.A. 18. Id. § II.A.3. 19. Id. § V.A. 20. Id. §§ III.B. and C. 21. Id. § III.F. 22. Id. §§ VI.A.-C. 23. Leleiko, supra note 15, at 916. 24. Id.
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