Professional and ethical issues in legal externships: Fostering commitment to public service

Fordham Law Review

Volumn 67, Issue 5, 1999, Pages 2295-2315

  Lerman, Lisa G ^a  

^a CATHOLIC UNIVERSITY OF AMERICA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0033411303     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (51)

1. This offers a sharp contrast to the on-campus interviewing programs at many law schools, which offer the easiest access and greatest visibility to available jobs at large law firms. These programs are often perceived by students as providing institutional encouragement to go into private practice and not to explore jobs in government or legal services or in non-profit organizations.
2. See Standards for Approval of Law Schools and Interpretations Standard 306(a) & interpretation 1 (1979).
3. From 1982 to 1984, I was a Clinical Fellow at the Center for Applied Legal Studies at Georgetown University Law Center. At the time, the clinic handled consumer cases and social security disability cases. For a discussion of the structure and operation of that clinical program, see Jane H. Aiken et al., The Learning Contract in Legal Education, 44 Md. L. Rev. 1047, 1050-61 (1985).
4. The students worked in teams of two. Each team handled two or three cases during the course of a semester. The clinic had four teachers and sixteen students. The teachers supervised students in teams of two as well, so each teacher supervised eight students.
5. The smallest of the small cases I supervised was a consumer case in which our client was aggrieved by the damage done to her one large tree by some landscapers who "trimmed" it, removing most of the branches from one side of the tree. Though she had paid only $75 for the work, she was deeply upset by the destruction of this tree. Therefore, it meant a great deal to her to seek vindication in small-claims court. The students handling the case arranged for appraisal of the damage, and the value of the claim rose into the thousands.
6. I focus a little more broadly on ethics issues than just on the issues that arise for students engaged in individual representation of low-income persons. Students working in government agencies may be representing the government, but as the government is supposed to represent the people, they have a greater public responsibility than a student doing an externship in a private law firm. Students working in non-profit organizations may be working on legislation or policy development on behalf of low-income persons, so their work is also relevant.
7. Most of the problems presented below involve real problems that have been presented by law students in externship situations. Some facts have been changed to obscure the identity of the placement, and some details have been elaborated. The students and the lawyers in these stories have been assigned fictitious names.
8. A prosecutor is not, of course, engaged in the representation of low-income persons. Nevertheless, this example offers a vivid picture of how prosecutorial discretion may be used in a manner that adversely affects low-income persons - in this case, most directly, a criminal defendant.
9. See Restatement (Third) of the Law Governing Lawyers §§ 118-35 (Proposed Final Draft No. 1, 1996) (restating the law of attorney client privilege); Black's Law Dictionary 129 (6th ed. 1990) (defining the attorney client privilege); see also Fed. R. Civ. P. 26(b)(1) (providing for common law privileges during discovery); Fed. R. Evid. 501 (providing for common law evidentiary privileges during a trial).
10. Model Rules of Professional Conduct Rule 1.6(a) (1998).
11. Id. Rule 3.3.
12. See, e.g., Model Code of Professional Responsibility EC 7-13 (1981) ("Then responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict.").
13. Model Rules of Professional Conduct Rule 3.3.
14. Id.
15. Id. Rule 3.3(a)(4).
16. Id.
17. Model Rules of Professional Conduct at 9 (defining terms).
18. See In re Grievance Comm., 847 F.2d 57, 63 (2d Cir. 1988).
19. Model Rules of Professional Conduct Rule 3.3 cmt. 11 at 65.
20. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 353 (1987).
21. Id.
22. Id.
23. Model Rules of Professional Conduct Rules 1.6, 3.3(a)-(b).
24. Id. Rule 3.3(b).
25. Id.
26. Id. Rule 8.3(a).
27. Id.
28. See id.
29. See id. Rule 8.3(c).
30. See id. Rule 8.3.
31. Id. Rule 8.3(a).
32. See, e.g., David F. Chavkin, Am I My Client's Lawyer?: Role Definition and the Clinical Supervisor, 51 SMU L. Rev. 1507 app. A at 1546 (1998) (summarizing various states' student practice rules); Documentary Supplement, Student Practice as a Method of Legal Education and a Means of Providing Legal Assistance to Indigents: An Empirical Study, 15 Wm. & Mary L. Rev. 353 app. IV, at 476-79 (1973) (setting forth an A.B.A. model rule on student practice); see also Model Rules of Professional Conduct Rule 5.3 (providing responsibilities for supervising attorneys).
33. See, e.g., David F. Chavkin, Am I My Client's Lawyer?: Role Definition and the Clinical Supervisor, 51 SMU L. Rev. 1507 app. A at 1546 (1998) (summarizing various states' student practice rules); Documentary Supplement, Student Practice as a Method of Legal Education and a Means of Providing Legal Assistance to Indigents: An Empirical Study, 15 Wm. & Mary L. Rev. 353 app. IV, at 476-79 (1973) (setting forth an A.B.A. model rule on student practice); see also Model Rules of Professional Conduct Rule 5.3 (providing responsibilities for supervising attorneys).
34. See Model Rules of Professional Conduct Rule 1.5(a).
35. Id. Rule 7.1.
36. Id. Rule 8.3(a).
37. Id.
38. Id. Rule 1.6.
39. For further discussion of this issue, see James E. Moliterno, In-House Live-Client Clinical Programs: Some Ethics Issues, 67 Fordham L. Rev. 2377, 2391-94 (1999).
40. In fact, the lawyers for whom they work are obliged to ensure that their employees do not violate the rules.
41. See Model Rules of Professional Conduct Rule 1.7(a).
42. Id.
43. Id. Rule 1.7(b).
44. See, e.g., King v. King, App. No. 89-46-11, 1989 WL 122981, at *9 (Tenn. Ct. App. Oct. 18,1989) (holding that an attorney was responsible for ensuring that a legal secretary would not reveal the secrets of a client).
45. Model Rules of Professional Conduct Rule 1.7(a).
46. See id. Rule 1.10(a).
47. Id. Rule 5.3(a).
48. Id. Rule 1.10.
49. Charles W. Wolfram, Modern Legal Ethics § 7.1.6, at 324 (1986).
50. Model Rules of Professional Conduct Rule 1.11.
51. See, e.g., D.C. Rules of Professional Conduct Rule 1.6(g) (1998) (covering, specifically, work done by law students and lawyers not yet admitted to a bar).