As they go to bat for their underserved clients, legal clinics must balance responsibilities for educating students and upholding the public trust

Smith, Jamie

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JD 2010 26PLAYSQUEEZEBy Jamie Smith AS THEY GO TO BATfor their underserved clients,legal clinics must balanceresponsibilities for educatingstudents and upholdingthe public trust.As the 2010 session of the State of Maryland’sGeneral Assembly neared its conclusion, facultyand students at the University of Maryland Schoolof Law knew the work of its Environmental Law Clinichad raised the ire of several powerful state legislators.But nobody at the Law School realized just how much.On March 23, amid Senate debate over the State ofMaryland’s Fiscal Year 2011 budget, an amendmentwas introduced that would have withheld $750,000 inuniversity funding until all 22 of the Law School’s clinicssubmitted a report “listing and describing each legal casein the past five years in which they participated in a courtaction, including the client represented, complete delin-eation of the expenditures for each case, and the sourceof funds for each expenditure.”Senator Brian Frosh, who had worked closely withthe Environmental Clinic during his eight years as Chairof the State Senate’s environment subcommittee, rose tochallenge the amendment’s sponsor, Senator LowellStoltzfus. “What’s this about?” Frosh asked.Nominally, it was about a suit the Clinic had filedearlier in the month on behalf of an environmental groupagainst poultry giant Perdue and a chicken farmer whosupplies the company, contending that the defendants areillegally discharging pollution into rivers feeding theChesapeake Bay. But to the Law School it was about issuesthat went much further: the rule of law and academicfreedom chief among them.“Lawyers must be able to fulfill their professionalresponsibility to provide effective representation, to protectclient confidentiality, and to resist pressures that compro-mise their judgment and integrity,” said Dean PhoebeHaddon. “To safeguard these vital principles, as well asacademic freedom, it was crucial for us to speak out.”With the support of the American Bar Association,every national legal education association, more than500 individual faculty members and deans from lawschools around the country, and hundreds of letters, phonecalls, and emails from UMDLaw alumni and students, theLaw School ultimately persuaded legislators to drop theproposed budget amendment in favor of a report on publicinformation about Environmental Law Clinic cases overthe last two years, without any money being at stake.While a significant victory for the Law School, the episodehighlighted the increasing scrutiny clinics at public lawschools nationwide face as they balance their obligationsto students and clients with the tremendous responsibilityto act justly and responsibility when they use state funds topursue legal action against private citizens and businesses.“When there aren’t enough public interest lawyersfor certain underrepresented clients and interests, how doyou allocate the limited resources of our legal clinic?” asksProfessor Richard Boldt. “That’s fundamentally the politi-cal issue. Farmers on the Eastern Shore would say: ‘We’realso underrepresented. Why represent the environmentalgroup and not us?’”Running into OppositionThe number of legal clinics nationwide continues tosurge, as law schools seek to provide students real-lifelawyering experiences that will provide a bridge betweentheir classroom studies and the practical skills they willutilize as practicing attorneys. According to the Associationof American Law Schools, there are now more than1,200 clinical law faculty at almost 150 law schoolsacross the country.“Because legal clinics represent people or groupsthat can’t otherwise afford lawyers, by definition thiswork often puts us in opposition to those who can, likegovernment or powerful interests. As clinics take oncontroversial cases, more and more are running intoopposition from industry groups and lawmakers,” saysProfessor Michael Pinard, co-Director of UMDLaw’snationally ranked Clinical Law Program. “The debateover our Environmental Clinic is the latest concerninglaw school clinics’ use of state funds and student attorneysto pursue cases that result in litigation.”Pinard says pressure stemming from such conflictsis forcing some less well-established clinical programs torethink the way they operate. According to a forthcomingJD 201027JD 2010 28survey of clinical law faculty conducted by University ofMichigan law professor Bridget McCormack, 36 percentreported concerns about reactions to their casework, and15 percent said those types of concerns had affected theirchoices of cases. In the past year alone, numerous clinicsacross the country have encountered legal and politicalopposition. Within the past year alone, clinical lawprograms in Louisiana, Michigan, and New Jersey facedlegal or legislative challenges.In January, two months before the UMDLawEnvironmental Clinic’s poultry farm lawsuit was filed,the Maryland State Builders Association sent a letterto the university system’s chancellor criticizing theuse of public money to push the “narrow agendas ofprivate special interest groups.” Sen. Stoltzfus agreed.In introducing his budget amendment, the Senator saidthat Maryland lawmakers would not send taxpayer moneystraight to environmental advocacy groups such asAssateague Coastkeeper and the Waterkeeper Alliance.So why, he asked, should they fund clinics that dotheir legwork?While not accepting that characterization of theClinical Law Program’s work, Boldt acknowledgesthe tremendous responsibility to act justly and in thepublic interest clinics take on when they accept state fundsto pursue legal action that affects private entities.“We’re making intentional choices about how tobest balance the need to serve our community while pro-viding sound educational experiences,” he says, pointingto the example of Professor Ellen Weber in establishing theDrug Policy and Public Health Strategies Clinic.In the summer prior to initiating her clinic, Weberspent countless hours meeting with stakeholders, treatmentproviders, people in recovery, neighborhood associations,public health workers, and local and state elected officials.She asked them all about their most pressing issues andsought recommendations on actions the clinic couldachieve, given its resources. Based on those answers, shethen formulated a plan for the clinic that would allow it tobest serve the public while providing a meaningful experi-ence for the student lawyers working with her.“All our clinical faculty take their responsibility seriouslyand undertake a range of activities to formulate practicesthat balance the competing interests of clients, students,and the public. We are careful and thoughtful and continu-ally rethink the choices we are making,” Boldt says. “It’s aprocess that never ends.”Debate in AnnapolisOn March 1, the Environmental Clinic had filed aClean Water Act citizen lawsuit on behalf of its client, theAssateague Costal Trust, alleging that runoff from the farmwhere Alan and Kristin Hudson raise chickens for Perduewas fouling the Pocomoke River. Three weeks later, Sen.Stoltzfus introduced his legislation, saying he was acting toprotect not only a vital industry, but also a small businessthat could not afford to defend itself in litigation broughtby the publicly supported School of Law.“I don’t think that having an interest in clean air,clean water, safe neighborhoods, a healthy and productiveChesapeake Bay, is a special interest, or somehow at oddswith the interest of the state,” Barrett replied, arguingthat the Clinic was acting in the government’s interest.“We’re not doing anything other than trying to makesure that the laws that Congress and our state legislaturepassed are actually implemented.”Critics saw the legislation as little more than an attemptby elected officials to look out for the private interests ofpowerful constituents. In comments to theWashington Post,Senator Frosh likened the amendment to the threat, “If youguys are getting involved in issues that we don’t like oryou’re bothering people that we do like, we want you toshut up.”Frosh and a number of his colleagues rallied tothe Law School’s defense. Sen. Lisa Gladden, a publicdefender and 1991 UMDLaw graduate, spoke movinglyabout how her clinical experience as a student had shapedher career and changed the course of her life. Other law-makers pointed to the Clinical Law Program’s nationalreputation for excellence, and the 110,000 hours of freelegal services it provides each year to needy Marylandcitizens. Ultimately, these supporters engineered passageof compromise language that reduced the scope of thereporting requirement, but still withheld $250,000 inconditional funding.Meanwhile, two other amendments, withholding up to$750,000 and requiring UMDLaw to report on all clinics,WE ARE A PUBLIC INSTITUTION and must be accountable. But we also have aresponsibility to provide our clients the best representation possible, and to offerour students the best educational experiences we can.”—Dean Phoebe Haddon“JD 201029were pending in the House. Convening an ad hoc groupof faculty and administrators, Dean Haddon swung intoaction. Her seemingly impossible goal: to convince theGeneral Assembly to drop all budget amendments thattied funding to reports on the Clinic.“This law school is a public trust. We have alwaysresponded to requests for information from the GeneralAssembly when asked, and always will. But we are carefulin case those requests broach confidentiality or other pro-fessional responsibility-related issues,” says Dean Haddon.“Clinical faculty must have the freedom to choose thecases their students will work on without fear of reprisal.Lawyers, including clinical faculty and student–attorneys,have ethical obligations to provide effective representationand to protect the confidentiality of their clients, obliga-tions that could be difficult or impossible to carry out inthe face of legislative action.”An Outpouring of SupportSupport for the Law School—and by extension, clinicallegal education—was swift and widespread.UMDLaw alumni published letters to the editors inlocal papers and organized efforts to contact legislators.Following a teach-in, current students drafted opinionpieces and hand-delivered letters—bearing hundreds ofsignatures—to every member of the General Assembly.The issue drew national attention within the legalcommunity. The American Bar Association’s presidentissued a statement arguing against interference with clinicallegal education. More than 500 law faculty and deanssigned a letter in support. TheWashington Post andThe New York Times not only wrote news stories about theissue, but also editorialized in support of the Clinic.Numerous legislators were at first surprised, then over-whelmed, and finally swayed by the outcry of opposition.A week after the Senate acted, the House voted to strike itsbudget amendments regarding the Clinic. Ultimately,a conference committee charged with resolving the differ-ing versions of the bill agreed to a “budget narrative” thatstill requires UMDLaw to report on Environmental Cliniccases over the last two years that have resulted in courtaction but does not attach any funds to the requirements.“As educators, we recognized what a wonderfulopportunity this was to educate both sides about what wasat stake. Ultimately we achieved that goal,” said DeanHaddon. “We understand that we are a public institutionand must be accountable to the lawmakers and the taxpay-ers for the work we do. But we also have a responsibility toprovide our clients the best representation possible, and tooffer our students the best educational experiences we can.”A Teachable MomentAs the General Assembly debated, the Clinic organized ateach-in to educate students about the issues of professionalresponsibility that were at stake, and to ensure they had themost accurate and up-to-date information.Professor Doug Colbert provided a national and historicsurvey of attacks on clinical law programs. Professor BrendaBratton Blom updated students on the latest developmentsand the Law School’s intended response. Feeling it inappro-priate to suggest student action, the faculty left the room.In two hours, the Student Bar Association had drafted aletter to the General Assembly, scheduled staffing for a tablewhere students could sign on, and gathered almost 200signatures. Later that week, when student leaders handdelivered copies of the letter to every state lawmaker, morethan 350 students had signed.“This has been a stark lesson for students,” saidBlom. “Democracy is robust but fragile. And access tojustice for people who don’t normally have it can be verythreatening to those who do. That’s why it’s so importantfor us to guarantee.”—Jamie Smith

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