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Bennett L. Gershman

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Let's Kill All the Law Students

Posted: 11/22/11 02:54 PM ET

Attacking lawyers for defending unpopular clients or advocating unpopular causes is one of the more unsavory features of American culture, recalling the famous injunction in Shakespeare's King Henry VI -- "The first thing we do, let's kill all the lawyers." But attacking students learning to become lawyers? That seems a bit extreme. It's probably not extreme to some big corporations being sued by law students who train in law school clinics. These corporations are screaming foul. The president of a large chemical company sued by clinic students said recently: "We should play hardball and kneecap them law school clinics with their state appropriations."

Indeed, state lawmakers and politicians who carry water for these companies for years have been trying to punish law schools that operate these clinics. Oregon lawmakers, angry because students were suing the timber industry, threatened to shut down the entire state law school, but axed the environmental law clinic instead. Other states -- including Pennsylvania, Colorado, Iowa, Idaho, Arizona and New Jersey -- have threatened to cut off funding to stop the students' litigation. Louisiana drastically limited the kinds of cases that students can litigate. Students in Illinois were forced to testify against an inmate they were seeking to exonerate. And several states, including Maryland and New Jersey, have tried to force students to divulge confidential client information.

Law School clinics have proliferated in the last 50 years, paralleling the increased interest in law schools to train students in practical lawyering skills, and the needs of a changing profession that can no longer charge clients for training. Today there are some 1,200 clinics in virtually all the nation's 200 law schools. These clinics serve diverse interests: training students to become skilled lawyers, representing poor and underrepresented clients who otherwise might lack access to the courts, and litigating cases involving vital social interests. For example, clinic students at Pace Law School, where I teach, represent clients who are disabled, elderly, non-citizens, small investors, indigent criminal defendants, and inmates seeking exoneration. Students in the environmental law clinic litigate a broad range of cases under the federal clean air and clear water acts.

In fact, the environmental law clinics nationwide have taken the brunt of these political attacks. Representing a family at risk of losing their home through foreclosure, or a battered woman, are likely not viewed as controversial cases, and would not encounter much political opposition. Suing big companies for polluting air and water, however, raises hackles, and it is here that the political battles are being fought nationally. A case in point is the recent effort by the Maryland legislature and governor to stop a lawsuit brought by Maryland Law School's environmental law clinic against the Perdue poultry company and farmers on the Eastern Shore for allowing chicken waste to seep into a drainage ditch that flows into the Chesapeake Bay. (The farmers already were fined by the state for placing waste too close to the ditch). The case is scheduled for trial in a federal court in Baltimore in March, and the judge already has denied motions to dismiss. Rural legislators made headlines last year when they threatened to cut off funding to the law school, but backed off.

Now Maryland's governor Martin O'Malley has gotten into the fray, and is piling on. Last week he wrote the law school Dean Phoebe Haddon stating "that continued participation by the Clinic in this suit is a state-sponsored injustice and a misuse of taxpayer resources," and advising the law school to abandon this "costly litigation of questionable merit." Ironically, the governor graduated from Maryland Law School and worked in the clinic representing battered women. His grandstanding to force the law school out of the case makes perfect sense politically. Deep-pocket interests such as the Perdue company and the farming industry probably have far more political clout than a handful of law students and their environmental allies.

However, the governor probably should have been advised to keep his distance. First, his statement that the case on the merits is "very questionable" is presumptuous; how does the governor know what the facts are? Moreover, the governor certainly should know that as a lawyer his conduct raises all sorts of ethical questions: making public statements that could significantly prejudice an upcoming trial; forcing a lawyer to abandon a client in the middle of a lawsuit; engaging in intimidation that any reasonable person would view as prejudicial to the administration of justice.

Watch this case carefully. To be sure, all lawyers have a stake in protecting the justice system and ensuring that every person has access to courts equally. But all persons, not just lawyers, have an interest in protecting the justice system. They should understand that lawyers owe a duty of loyalty to their clients, to keep their confidences, and be able to make independent decisions free of outside political pressure or influence. Most people, especially those that need lawyers to help them, understand that lawyers, rather than being vilified, are usually indispensable to achieving justice. And law students training in law school clinics really are the functional equivalent of lawyers. These students are recognized by courts as lawyers, and should be left alone by politicians eager to make headlines.