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When the Louisiana Supreme Court established rules restricting student lawyers, it appeared to strike a blow against the Tulane Environmental Law Clinic, whose suits against big corporations sparked the changes. But five years after the controversy over the clinic’s suits began, it continues to thrive and has successfully fought challenges to its representation. A federal court recently threw out a motion seeking to disqualify the students as counsel in a suit against an oil refinery. Concerned Citizens of New Sarpy v. Orion Refining Corp., No. 01-3704 Section D (E.D. La.). The recent challenge was brought by Orion, which is being sued by the Concerned Citizens of New Sarpy for allegedly violating the Clean Air Act. In the only other ruling on the matter, a district judge rejected a motion in April alleging that the clinic was not in compliance with the rules in a case dealing with a permit for a landfill. In the Matter of Waste Management, No. 492,277 (East Baton Rouge Parish, La., Dist. Ct.). “We comply with the rules that we’re faced with,” said Karla Raettig, staff attorney for the clinic. “We’ve been able to keep doing the work we want to keep doing.” The controversy over the clinic’s aggressive litigation emerged in 1997, in a suit the students handled on behalf of a community group against the Shintech Corp., which was seeking to build a polyvinyl chloride plant in a poor area. Critics of the clinic accused it of fostering conflict with the business community, and the state supreme court launched an investigation over the students’ representation. While the clinic was found not to be in violation of any rules, in 1998 the state supreme court amended Rule XX, governing student lawyers. The new rule barred clinics from representing anyone whose income is greater than 200 percent of the federal poverty level. For community organizations, less than half the members must meet the rule’s definition of indigent. Also, the clinic was not allowed to contact groups first for the purpose of representation. The clinic and its lawyers, who challenged the rules as limiting its students’ constitutional rights to speech and freedom of association, lost that battle before the 5th U.S. Circuit Court of Appeals, despite their arguments that the new rule would destroy the clinic. Orion sought to disqualify the student clinic, arguing that the Louisiana Supreme Court Rule XX applies to the court’s local rules. Orion also argued that because the federal court’s local rule (Rule 83.2.13) prohibits students from receiving a fee, the clinic should be statutorily disqualified. In his brief, Michael Chernekoff at Jones, Walker, Waechter, Poitevent, Carr�re & Den�gre in New Orleans, argued that the clinic “is looking for loopholes to avoid compliance with Louisiana Supreme Court Rule XX.” Tulane argued that the clinic is governed by the federal court’s local rules and therefore didn’t have to prove the community group’s income level. They also argued that the clinic lawyers had waived their right to claim any fee. Judge A.J. McNamara of the Eastern District of Louisiana approved U.S. Magistrate Judge Alma Chavez’s report and recommended the rejection of Orion’s motion to disqualify the clinic. In her opinion, Chavez noted that the federal court has not adopted the state supreme court’s rules as its own. Chernekoff said Orion has decided not to ask for a reconsideration, but may appeal later on. Meanwhile, however, the ruling clears the way for the clinic’s students to handle federal court cases without complying with Rule XX.

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