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Student, Esquire?: the Practice of Law in the Collaborative Classroom

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Student, Esquire?: the Practice of Law in the Collaborative Classroom \\jciprod01\productn\N\NYC\20-2\NYC202.txt unknown Seq: 1 24-MAR-14 11:00 STUDENT, ESQUIRE?: THE PRACTICE OF LAW IN THE COLLABORATIVE CLASSROOM NANTIYA RUAN* Law faculty and non-profit lawyers are working together in a variety of partnerships to offer students exposure to “real life” clients in the first year of law school, as well as in advanced courses in sub- stantive areas. Teachers engaged in this client-centered advocacy through experiential frameworks have broken out of their isolated silos in the law school (e.g., legal writing, clinical, externship, and doctrinal) and begun to work together. To help students develop a sense of professional identity, cultivate professional values, and tap into key intrinsic motivations for lawyering, such as serving the pub- lic good, collaborative classrooms have an important role in meeting the needs of twenty-first century law schools. But implementing inno- vation without planning and forethought spells disaster. These part- nerships amongst faculty, students, and lawyers have not yet seriously engaged with the ongoing conversation about ethical representation in student legal work for real clients. For collaborative classrooms to remain within ethical boundaries, teachers creating innovative class- room experiences with clients need to define the legal tasks being completed by students early on and examine local unauthorized prac- tice of law (UPL) rules to determine whether students’ work impli- cates these ethics rules. By engaging in this conversation, we model the ethical professional behavior that modern learning initiatives challenge us to address: how to be innovative, creative, justice-seeking lawyers within the ethical contours of our profession. This Article begins that conversation. INTRODUCTION In the face of extreme censure about the cost and value of legal * J.D., M.S.W., Lawyering Process Professor, Director of Lawyering Process Program, University of Denver Sturm College of Law. Many thanks to the ALWD Scholars Work- shop participants (Professors Terry Pullman, Derek Kiernan-Johnson, Corie Felder, and Tracy Turner), New York Law School Clinical Workshop Series participants, my writing retreat partners (Professors Jason Cohen, Robin Walker-Sterling, and Lindsey Webb), and Professors Roberto Corrada, K.K. DuVivier, Lisa Graybill, Carrie Hempel, Chris Lasch, Scott Moss, and Raja Raghunath, for their insightful comments and support. Many thanks to Research Librarian Peter Kersten and my research assistants, Elisabeth Hutchinson and Lauren Parsons, for their excellent research. Finally, I would like to extend my deep grati- tude to Mickey and Jeanne Klein for their kindness, support, and gracious encouragement. 429 \\jciprod01\productn\N\NYC\20-2\NYC202.txt unknown Seq: 2 24-MAR-14 11:00 430 CLINICAL LAW REVIEW [Vol. 20:429 education voiced by education experts,1 national media outlets,2 as well as legal professors and consumers of the education themselves,3 legal education reform movements have swept the nation. Graduat- ing “practice ready lawyers” has never been more imperative. New learning initiatives encourage law professors to create integrated clas- ses that explicitly join “lawyering” professionalism and legal skills, starting on the first day of law school.4 As part of this movement, faculty at law schools across the coun- try are leaving their silos and collaborating with one another to pro- vide experiential learning opportunities that incorporate client work into the learning of the class. This includes legal research and writing (LRW), clinical, externship, doctrinal faculty, and non-profit lawyers working together in a variety of partnerships to offer students expo- sure to “real life” clients in the first year of law school, as well as advanced courses in particular substantive areas.5 For example, my LRW first-year class partnered with the workers’ advocacy group, 9to5 National Association of Working Women,6 to provide them re- search and analysis on a legal issue important to their policy goal of advocating for paid sick leave to better the lives of working families. This Article uses the phrase “collaborative classroom” to capture these myriad innovations that are currently blossoming in legal education. Collaboration between clinics, non-profit partners, externship programs, doctrinal classes, and LRW students should be mindful of the parameters of legal practice when developing their classes, paying particular attention to the practice of law rules in their jurisdiction.7 1 See ROY STUCKEY ET AL., BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROADMAP (Clinical Leg. Educ. Ass’n 2007) [hereinafter BEST PRACTICES]; WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (Jossey-Bass 2007) [hereinafter CARNEGIE REPORT]; ABA SEC. LEG. EDUC. & ADMIS. TO B., LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT — AN EDUCATIONAL CONTIN- UUM, REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (ABA 1992) [hereinafter MACCRATE COMMISSION REPORT], available at http:// www.abanet.org/legaled/publications/onlinepubs/maccrate.html (last visited Mar. 7, 2013). 2 See, e.g., Ethan Bronner, Law Schools’ Applications Fall as Costs Rise and Jobs are Cut, N.Y. TIMES, Jan. 30, 2013, http://www.nytimes.com/2013/01/31/education/law-schools- applications-fall-as-costs-rise-and-jobs-are-cut.html; Ethan Bronner, A Call for Drastic Changes in Educating New Lawyers, N.Y. TIMES, Feb. 10, 2013, http://www.nytimes.com/ 2013/02/11/us/lawyers-call-for-drastic-change-in-educating-new-lawyers.html. 3 Paul Campos, Goodbye Is Too Good a Word, INSIDE THE LAW SCHOOL SCAM (Feb. 27, 2013, 4:43 AM), http://insidethelawschoolscam.blogspot.com/. 4 See CARNEGIE REPORT, supra note 1, at 87–88, 191–92. 5 See generally Nantiya Ruan, Experiential Learning in the First-Year Curriculum: The Public-Interest Partnership, 8 LEGAL COMM. & RHETORIC: JALWD 191 (2011). 6 9to5 is dedicated to working families and economic justice issues. See 9TO5, WIN- NING JUSTICE FOR WORKING WOMEN, http://9to5.org/ (last visited Mar. 20, 2013). 7 MODEL CODE OF PROF’L RESPONSIBILITY R. 5.5 (2011); see also Laura L. Rovner, \\jciprod01\productn\N\NYC\20-2\NYC202.txt unknown Seq: 3 24-MAR-14 11:00 Spring 2014] The Practice of Law in the Collaborative Classroom 431 This Article addresses one of the ethical risks associated with imple- menting these “collaborative classrooms”: the ethics rules surrounding the unauthorized practice of law. One of the most widely understood barriers to nonlawyer advocacy is the attorney practice rules. Generally, states regulate the unauthorized practice of law (UPL) for their jurisdiction through state rules enacted by various sources: court rules, statutes, administrative regulations, judicial opinions, and the state’s constitution.8 UPL rules regulate the delivery of legal ser- vices, which are defined in varying degrees of breadth and oversight.9 A universal definition of legal services is lacking, but some baseline agreement is that legal services consist principally of preparing legal instruments, giving legal advice, and appearing in a representational capacity before an adjudicatory tribunal.10 Some states broadly interpret UPL standards to more heavily re- strict the work of lay advocates in legal matters.11 Justifications for restricting lay advocates include protecting the public against harmful and unscrupulous conduct and keeping competition for lawyers to a minimum in exchange for their submitting to regulation.12 Other states follow a more narrow definition of legal services to allow for more broad-based lay advocacy, which is in keeping with the ABA Commission’s 1995 Nonlawyer Practice endorsement of lay advo- cates.13 Such an approach recognizes the unmet legal needs in com- munities of limited resources and efforts to improve access to justice.14 The Unforeseen Ethical Ramifications of Classroom Faculty Participation in Law School Clinics, 75 U. CIN. L. REV. 1113 (2007). 8 Quintin Johnstone, Unauthorized Practice of Law and the Power of State Courts: Difficult Problems and Their Resolution, 39 WILLAMETTE L. REV. 795, 797 (2003). 9 For a recent comprehensive list of state definitions, see AMERICAN BAR ASSOCIA- TION TASK FORCE ON THE MODEL DEFINITION OF THE PRACTICE OF LAW , app. A (2003), available at http://www.abanet.org/cpr/model-def/model_def_statutes.pdf. 10 Task Force on the Model Definition of the Practice of Law: Model Definition of the Practice of Law Challenge Statement, ABA CENTER FOR PROF. RESP. http://www.ameri- canbar.org/groups/professional_responsibility/task_force_model_definition_practice_law/ model_definition_challenge.html (last visited Mar. 20, 2013). 11 See Soha F. Turfler, A Model Definition of the Practice of Law: If Not Now, When? An Alternative Approach to Defining the Practice of Law, 61 WASH. & LEE L. REV. 1903, 1910 (2004). 12 See id. at 1959 (citing Derek A. Denckla, Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters, 67 FORDHAM L. REV. 2581, 2581 (1999) (discussing the legal monopoly)). 13 See Suzanne J. Schmitz, What’s the Harm?: Rethinking the Role of Domestic Violence Advocates and the Unauthorized Practice of Law, 10 WM. & MARY J. WOMEN & L. 295, 305 (2004) (recognizing the ABA’s role in advocating for more lay advocates in the domes- tic violence courts). 14 See Deborah L. Rhode, Professionalism in Perspective: Alternative Approaches to Nonlawyer Practice, 22 N.Y.U. REV. L. & SOC. CHANGE 701, 712 (1996); ABA COMM’N ON NONLAWYER PRACTICE, NONLAWYER
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