Legal educators are rallying behind the University of Maryland School of Law, which is under fire from state legislators who want the school’s clinics to turn over client names and other information or risk funding cuts.
The fight stems from a lawsuit that the school’s environmental law clinic filed on March 2 on behalf of an environmental group against poultry giant Perdue Farms and a chicken farmer who supplies the company. The lawsuit contends that the defendants are illegally discharging pollution into the Franklin Branch and Pocomoke River, which feed into the Chesapeake Bay.
The move by Maryland legislators is the latest in string of attempts by government officials and others to gain access to information about law school clinics. Law schools have consistently resisted those attempts, arguing that clinics are entitled to the same attorney-client privilege as are law firms and other attorneys.
“These actions demonstrate a failure to understand the professional responsibilities of lawyers and the structure of contemporary legal education,” Clinical Legal Education Association (CLEA) President Robert Kuehn said in a written statement. “Unfortunately, those attacking the law clinics appear more concerned about protecting favored businesses from compliance with the law than supporting one of their state’s flagship schools.”
Kuehn said Monday that the Maryland legislators are attempting to intimidate the law clinic in order to protect big business.
Last week, the Maryland Senate passed a budget amendment that would require the University of Maryland’s environmental law clinic to disclose its expenditures and client roster for the past two years; if the school refused, the university would lose $250,000 in state funding. That amendment was a compromise from an earlier proposal by State Sen. J. Lowell Stoltzfus that would require all of the school’s 23 clinics to turn over information for the past five years.
Lowell told the Washington Post that he is worried that the clinics are bad for business because law students could overwhelm small chicken farmers who must pay to defend against the suits. The Maryland House of Representatives is scheduled to vote on several amendments Thursday that would tie the reporting of legal clinic information to as much as $750,000 in university funding.
“It’s a serious concern,” said Maryland law Dean Phoebe Haddon. “We understand that we are a public institution and have to be accountable for the work we do. We have responded to requests for information when asked, but we are always careful in case those requests broach confidentiality or other professional responsibility-related issues. I’m concerned about the allocation of funding being tied to this reporting.”
With money on the line, there is a “specter of intimidation” that could affect how the clinics choose clients or accept cases, Haddon said.
Clinical educators are circulating a petition opposing the Maryland legislation. The American Bar Association has not yet weighed in on the Maryland situation, but the group’s Council on Legal Education adopted a statement in 1983 that calls for the organization to assist schools in preserving the independence of their clinics.
“Improper attempts by persons or institutions outside law schools to interfere in the ongoing activities of law school clinical programs and courses have an adverse impact on the quality of the educational mission of affected law schools and jeopardize principles of law school self-governance, academic freedom, and ethical independence under the ABA Code of Professional Responsibility,” the statement reads.
The University of Maryland School of Law isn’t the only law school arguing that attorney-client privilege applies to law clinics.
Lawyers with the Michigan Innocence Clinic earlier this month fought attempts by a Wayne County prosecutor to include six University of Michigan law students on the witness list during the retrial of a man the students had worked to exonerate. Innocence Clinic co-director David Moran argued that the students should not testify because it would violate attorney client confidentiality. The issue became moot last week, when the prosecutor dropped the charges. Still, Moran said, the issue may well resurface.
“I’m afraid that the next time we have a similar case, the prosecution will try this again,” Moran said. “It just can’t happen. If the students are on the witness stand, they will be disqualified from representing their clients, and the whole idea of clinics and the student practice rules will be undermined.”
Rutgers School of Law-Newark has also found its environmental law clinic in the hot seat of late. A developer sued the clinic to compel it to disclose its case files under New Jersey’s open records laws. The clinic had represented a group of citizens opposing an outlet mall that the developer was planning. A superior court judge ruled in 2008 that the clinic was a hybrid institution — with an educational mission but acting as a law firm — and that therefore its case files are not subject to open records laws. That decision is under appeal.
Groups including CLEA, the Association of American Law Schools and the Society of American Law Teachers have filed amicus briefs in the appeal, arguing that disclosing their case files would have a chilling effect on the clinical programs.
Changes could be afoot in Louisiana as well. A state senator has proposed a bill that would bar legal clinics at public universities or private universities that receive state funding from suing a government agency. The bill would ban those clinics from filing lawsuits that seek monetary damages from an individual, business or government agency. Instead, clinics would be relegated to several areas including criminal defense, juvenile court representation and family court.
Karen Sloan can be contacted at email@example.com .