(NYLJ/Rick Kopstein)

Since the 1960s, clinical education in law schools has provided real world experience to law students and legal representation to those least able to access it. Adjudicators across American government co-created this innovative model by promulgating student practice rules, as a way of enhancing law school training while emphasizing the importance of pro bono and legal aid service.

Student practice rules are important not only because they facilitate better training for prospective lawyers; they also enable law schools to provide critically needed free legal services. As the 2015 report of the Permanent Commission on Access to Justice noted, “approximately 1.8 million litigants in civil matters in courts in every region of New York State remain unrepresented.” The commission also stated that law schools provide “significant work” in addressing the access-to-justice gap.

In this tradition, the Cornell Law School Farmworker Legal Assistance Clinic opened its doors in August 2015, expanding a clinical program that houses many courses. In the new clinic, students handle immigration and employment matters on behalf of farmworkers in the region. By handling both employment matters and deportation defense, the clinic brings a unique mix of services to upstate New York. Its current focus is assisting undocumented unaccompanied youths who are living and working on farms.

In its first semester, the clinic entered appearances in the Western District of New York, two Fourth Department county level Family/Surrogate’s Courts, the Buffalo Immigration Court and the Workers’ Compensation Board. The clinic also explored entering appearances in the Northern District and courts the Third Department. In the process of this work, we urged re-examination of several local student practice rules and court practices to better reflect the New York bar’s growing emphasis on experiential training and pro bono service as prerequisites to bar admission.

Like most parts of the United States, upstate New York is home to undocumented children and youth. Many of them live or work on farms, where farm owners and local school administrators look to state courts and the immigration agencies to stabilize these young people’s lives. With their immigration status established, they can work legally and pay taxes more easily, and some go on to college, allowing society to capitalize on its investment in their education and on-the-job training.

In situations where children and youth cannot afford a private lawyer, or cannot find a lawyer with a language-accessible practice, the Cornell clinic steps in as resources permit. Handling these cases requires law students to interact with county courts and the U.S. Citizenship and Immigration Service visa adjudication department.

Third Department

Rule 805.5(e) of the Appellate Division, Third Department requires that, in order to qualify to supervise law students under the student practice rule, an attorney “shall have, within 10 years immediately preceding the application, at least two years of actual practice in this state.”

After upstate clinical programs unsuccessfully sought waivers for new faculty hires, the farmworker clinic shifted its case intake, focusing its state court practice in the Fourth Department. Subsequently, the Third Department shifted the rule to incorporate a formal waiver provision. While the waiver provision was a step in the right direction, during a recent notice-and-comment process involving a different aspect of the rule, Cornell Law School urged the Third Department to do away with the requirement altogether, insofar as it applies to law school clinical programs. Requiring two years of in-state practice is unique to this department and, based on our research, appears to be unique nationally as well.

Workers’ Compensation

Farm labor is this country’s third most hazardous occupation, and many injured farmworkers struggle to avail themselves of workers’ compensation protections. The New York State Workers’ Compensation Board Rule 302-1.1 permits “senior law students” to practice before the board. At the request of the farmworker clinic for an interpretation of “senior law student,” the board interpreting this rule as meaning students who have already completed one and one-half years, even though the four departments require only one year for student practice in state courts. In the farmworker clinic, this limitation meant that in the fall, only one student was eligible to enter an appearance on behalf of a limited-English-proficient farmworker who sustained a work injury when she fell from a ladder. Given the level of supervision provided to students by faculty in law school clinics, the 2 1/2 year requirement unnecessarily limits legal services, and should be modified.

Buffalo Immigration Court

Like most federal administrative student practice rules, the U.S. Department of Justice Executive Office for Immigration Review student practice rule found at 8 C.F.R. 292.1 (2016) permits law students of any level to practice under attorney supervision by filing day-of-court entry of appearance notices. In November 2015, the farmworker clinic made its first appearance before the Buffalo Immigration Court. The judge disallowed the students from entering the well and took the written and oral motions for their appearance under advisement. Shortly thereafter, a Cornell Law LGBT clinic team entered its appearance for the second of two merits hearings in an asylum matter, and received a written decision disallowing their motion, although an earlier student team had handled the initial hearing. Written denials followed in the farmworker clinic matters, citing problems with court interpreters that were slowing down the docket.

In December, Sophie Feal of the Erie County Bar Association Volunteer Lawyers Project filed interlocutory appeals with the Board of Immigration Appeals in the three cases, asserting the importance of the student practice rule and the right of indigent immigrants to choose their own counsel. Also submitted was an amicus brief from 42 immigration professors, including affidavits detailing the strong tradition of same-day student entry of appearance in courts across the country. In February 2016, the BIA ordered the Buffalo Court to permit the students to appear, because the students met the student practice requirements and permitting their appearance would not cause “excessive delay.”

Nothern District

Because many farmworkers experience wrongful discharge after they are injured, or wage theft, referral agencies have also asked the clinic to pursue litigation in the federal courts. Most of the statutory schemes involving rights in employment carry attorneys’ fees. Clinical programs around the country collect attorneys’ fees when they prevail in fee bearing cases, charging law student time at reduced rates and discounted hours to allow for the inefficiencies of a teaching practice. These fees typically are used to cover clinic litigation costs.

However, General Order 13 of the Northern District Court states, “Neither the student, nor anyone on the student’s behalf, shall seek recovery of attorneys’ fees from an adverse party for the services rendered by the student as a Student Practitioner.” The clinic is preparing to formally request that this limitation, which arguably violates the Rules Enabling Act and is out of step with other New York districts and other federal courts around the country, be rescinded

One of the primary goals of clinical education is to encourage law students to learn new areas of law and procedure, to support people and causes who otherwise would not have access to the legal system. It is our hope that this work will become part of their lifelong practice while enhancing the quality of the bar through skills training. Establishing the clinic provided its students with first hand experience in all these realms, along with a chance for advocacy about the purpose and function of the very student practice rules governing their work.

We encourage the courts and the board to continue to monitor changes in experiential legal education that make it possible to ease student practice rules limiting law student representation of low income populations.

John H. Blume is the Samuel F. Leibowitz Professor of Trial Techniques, the Director of Clinical, Advocacy and Skills Programs, and the Director of the Cornell Death Penalty Project. Beth Lyon is a Clinical Professor of Law and the Director of the Farmworker Legal Assistance Clinic.