Washington University Journal of Law & Policy Volume 4 Access to Justice: The Social Responsibility of Lawyers 2000 Denying Access to Legal Representation: The Attack on the Tulane Law Clinic Robert R. Kuehn Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_journal_law_policy Part of the Legal Education Commons Recommended Citation Robert R. Kuehn, Denying Access to Legal Representation: The Attack on the Tulane Law Clinic, 4 WASH. U. J. L. & POL’Y 033 (2000), https://openscholarship.wustl.edu/law_journal_law_policy/vol4/iss1/5 This Essay is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Denying Access to Legal Representation: The Attack on the Tulane Environmental Law Clinic Robert R. Kuehn* I. THE SHINTECH PROPOSAL AND AN APPEAL FOR FREE LEGAL ASSISTANCE.........................................................................38 A. “Enough is Enough”........................................................38 B. The Tulane Environmental Law Clinic Provides Legal Assistance.......................................................................47 II. A BACKLASH AGAINST ACCESS TO ENVIRONMENTAL JUSTICE .....51 A. Governor Foster’s Hostility Toward and Threats Against Tulane ............................................................................51 B. Industry: Access to Justice That’s Bad for Business is Bad for Louisiana............................................................61 C. The Legal Profession: Access to Justice Yields to Attorney Self -Interest.......................................................69 D. The Louisiana Supreme Court: A Certain Kind of Access and Only for Certain People.............................................75 1. The Court’s Changing Politics .....................................75 2. Investigating the Tulane Environmental Law Clinic ......77 3. The Original June 1998 Restrictions .............................81 4. The Revised March 1999 Restrictions ..........................91 III. THE HARM FROM DENYING ACCESS TO LEGAL REPRESENTATION .................................................................96 IV. DETERRING DENIALS OF ACCESS TO LEGAL REPRESENTATION.. 102 * Visiting Professor of Law, University of Utah College of Law. The following Article is based on a presentation by Professor Kuehn in the Public Interest Law Speaker Series at Washington University School of Law on November 17, 1999. From 1989 to 1999, Professor Kuehn was the director of the Tulane Environmental Law Clinic and is one of the plaintiffs in the federal court challenge to the Louisiana Supreme Court’s new restrictions on law school clinics. The author would like to thank Washington University School of Law students L.J. Cox, Erica Freeman, and Justin Pitt, and University of Michigan Law School students Stephen Crowley, Brian Gruber, and Patrick Raulerson, for their research assistance, Washington University School of Law and the University of Michigan Law School for supporting the research on which this article is based, and Kirsten Engle, Oliver Houck, Peter Joy, Rena Steinzor and Elizabeth Teel for their helpful comments on an earlier draft. 33 Washington University Open Scholarship p 33 Kuehn.doc 3/22/01 34 Journal of Law & Policy [Vol. 4:33 A. Ends, Means, and Will of the People Justifications........... 103 1. Addressing Attacks by Politicians on Legal Representation .......................................................... 109 B. The Rhetoric and Reality of the New “Green” Business Ethic111 1. Obtaining Compliance With Green Codes .................. 118 C. The Legal Profession’s Readiness to Ignore its Responsibility to Ensure Access to Legal Representation.. 120 1. Reinforcing the Duty of Non-Interference With Legal Representation of Unpopular Causes................. 130 D. Judicial Integrity and Independence Lost......................... 132 1. Increasing Judicial Integrity and Independence in Overseeing Access to Legal Representation ................ 139 2. Anti Civil Rights Redux ............................................ 143 V. CONCLUSION ......................................................................... 146 We went to Atlanta and had meetings with all kinds of lawyers, but they looked like they were afraid to take our case. Tulane took it, and they’re doing a good job. If they weren’t, the Governor wouldn’t be so worried about them. —Emelda West, St. James Citizens for Jobs & the Environment1 If Shintech is defeated, I’ll just know that I’ll have to do a better job next time of getting people out of the way. —Louisiana Governor Murphy J. “Mike” Foster, Jr.2 Widespread advocacy campaigns by professors and students are beyond the legal parameters of helping indigent people. —Pascal F. Calogero, Jr., Chief Justice, Louisiana Supreme Court3 1. Melba Newsome, Slaying Goliath, AMICUS J., Spring 1998, at 12-13. 2. Meeting with Murphy J. “Mike” Foster, Jr., Governor, State of Louisiana, in Baton Rouge, La. (Aug. 13, 1980); see Joe Gyan, Jr., “Outlaw” Leader Leaving La., ADVOCATE (Baton Rouge, La.), May 15, 1999, at 1B. 3. James Varney, Justice Calogero Seeking 3rd Term, TIMES-PICAYUNE (New Orleans, La.), Aug. 7, 1998, at A2. https://openscholarship.wustl.edu/law_journal_law_policy/vol4/iss1/5 p 33 Kuehn.doc 3/22/01 2000] Denying Access to Legal Representation 35 Legal representation is not available to most Americans who have legal problems. A 1992 American Bar Association study, for example, found that each year approximately half of all low-income and moderate-income households face legal problems and that 71% and 61% of these households’ legal needs, respectfully, are never addressed by the civil justice system.4 The number of lawyers working for the needy declined by about one-third since 1980,5 with fewer than 20% of America’s lawyers performing any pro bono legal services.6 The supply of this limited, free work is usually restricted to routine legal matters and often “goes to friends, relatives, and organizations likely to attract paying clients.”7 Former President Jimmy Carter observed that “[n]inety percent of our lawyers serve ten percent of our people. We are over-lawyered and under- represented.”8 When people require assistance to advance public interests, rather than private interests, the lack of legal representation is even more 4. A.B.A. CONSORTIUM ON LEGAL SERVICES AND THE PUBLIC, LEGAL NEEDS AND CIVIL JUSTICE: A SURVEY OF AMERICANS 15 (1994). In 1991, 85% to 92% of low-income residents in Louisiana with civil legal needs were unable to receive assistance from an attorney. William P. Quigley, The Unmet Civil Legal Needs of the Poor in Louisiana, 40 LA. BAR J. 477 (1993). See also Talbot D’Alemberte, Tributaries of Justice: The Search for Full Access, FLA. BAR J., Apr. 1999, at 12, 27 n.19 (reporting that only 19% of low-income individuals with legal needs were represented by lawyers in Florida); Karen A. Lash et al., Equal Access to Justice: Pursuing Solutions Beyond the Legal Profession, 17 YALE L. & POL’Y REV. 489 & n.1 (1998) (observing that only one-fourth of poor California families with civil legal problems receive full or partial legal assistance). 5. Luke Cole, The Crisis and Opportunity in Public Interest Law: A Challenge to Law Students to be Rebellious Lawyers in the ’90s, 4 B.U. PUB. INT. L.J. 1, 2 (1994). 6. Rosalind Resnick, Looking at Alternative Services; The Lawyer/Non-Lawyer Wall Continues to Erode, NAT’L L.J., June 10, 1991, at 1. Lawyers at the nation’s 100 largest law firms dedicated over one-third less time to pro bono work in 1999 than in 1992. John Turrettini & Keith Cunningham, The Way We Were, AM. LAW., July 2000, at 96. Only nineteen of the largest 100 firms averaged the fifty hours or more of annual pro bono work recommended by the ABA’s Model Rules of Professional Conduct. Bruce Buckley, The Do-Good Law Firms, NAT’L JURIST, Nov-Dec. 2000, at 31, 32 (citing the American Lawyer survey); see also Not Too Much to Brag About, AM. LAW., July 2000, at 161. 7. GEOFFREY C. HAZARD, JR. & DEBORAH L. RHODE, THE LEGAL PROFESSION: RESPONSIBILITY AND REGULATION 469 (3d ed. 1994). 8. Jimmy Carter, Remarks at the 100th Anniversary Luncheon of the Los Angeles County Bar Association, in PUBLIC PAPERS 834, 836 (1978). Supreme Court Justice Sandra Day O’Connor lamented: “There has probably never been a wider gulf between the need for legal services and the availability of legal services” than exists today. William J. Dean, Challenge to Law Firms, NAT’L L.J., Oct. 2, 1995, at 3 (quoting Justice O’Connor’s 1991 address to the ABA). Washington University Open Scholarship p 33 Kuehn.doc 3/22/01 36 Journal of Law & Policy [Vol. 4:33 severe—less than .001% of lawyers in the legal profession are public interest lawyers.9 “Although recent data are unavailable, the best available estimates suggest that the number of full-time public interest lawyers is less than one attorney for every 240,000 Americans.”10 Citizens advancing issues of public concern often have no choice but to turn for free assistance from law school professors or one of the nation’s law school clinics.11 Legal needs remain unsatisfied in spite of ethical rules commanding that “[e]very lawyer, regardless of professional prominence or work load, has a responsibility to provide legal services