This article provides a typology of interference based on the type of limitation on law clinic operations the interference seeks to impose and documents some of the history of attacks on law clinics.

A Typology of Interference

Robert R. Kuehn & Bridget M. McCormack
Lessons From Forty Years of Interference in Law School Clinics
24 Georgetown L. Rev. 59 (2011), https://ssrn.com/abstract=1756908

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I. A Typology of Interference

Efforts to interfere in law clinic operations can be generally classified by the types of limitations attempted: case and client selection restrictions, funding restrictions, and practice restrictions. The abbreviated discussion below illustrates each of these categories of interference over the past four decades, with a longer history of publicized efforts to interfere in clinical education cataloged in [a table in the next chapter].

Case and Client Selection Restrictions

The willingness of law clinics to represent unpopular clients, for whom clinics often are the only available legal assistance, has led to numerous attempts by public officials to impose case and client selection restrictions on clinics. The first reported instance occurred at the University of Mississippi School of Law in 1968 where two untenured law professors, with the assistance of students in a new clinical program, worked part-time with the local legal services program on a lawsuit to desegregate public schools. ⁵ Under pressure from the legislature and state bar and at the direction of the University’s chancellor, the dean of the law school, relying on a policy that permitted outside employment provided “it does not bring the employee into antagonism with his colleagues, community, or the State of Mississippi,” prohibited the clinic professors from working with the program.⁶

The professors filed suit in federal court, alleging they had been denied equal protection of the law by being singled out for restrictions different from and more onerous than those imposed upon other professors who were not working with students on desegregation lawsuits.⁷ In Trister v. University of Mississippi, the United States Court of Appeals held that the University had unlawfully discriminated against the professors as “the only reason for making a decision adverse to [the professors] was that they wished to continue to represent clients who tended to be unpopular. This is a distinction that can not [sic] be constitutionally upheld.”⁸

The American Association of Law Schools (AALS) and the American Association of University Professors (AAUP) also responded with great effect. The AALS Committee on Academic Freedom and Tenure found that the violations of academic freedom were so serious that, in the absence of corrective action, the law school would be expelled from membership in the AALS—apparently the only reported time the AALS has found that a member school violated the academic freedom rights of a law clinic teacher.⁹ Similarly, an investigating committee of the AAUP found it was likely that the University’s action violated the professors’ academic freedom since the terminations occurred because the professors were engaged in civil rights activities.¹⁰ In response, the University rescinded its policy and offered re-employment to the professors.¹¹

A few years later, the law clinic at the University of Connecticut came under attack when it helped defend an antiwar protester, prompting complaints from local lawyers and a directive from the governor to rein in the clinic.¹² In response, the dean proposed that clinic professors be required to seek the approval of the dean or a faculty committee before accepting a case against a government official.¹³ This effort resulted in American Bar Association (ABA) Informal Ethics Opinion 1208, which held that requiring clinic lawyers to seek the prior approval of the dean or a faculty committee “makes it likely that the independent judgment of the five clinic lawyers and their loyalty to their clients will be impaired. Thus the proposed limitations . . . violate the professional ethics and responsibilities of the dean and of the lawyer-directors of the clinic.”¹⁴ Instead, the governing body of a law clinic (the law school faculty, dean, university administration, and university board of trustees) “should seek to avoid establishing guidelines (even though they state only broad policies . . .) that prohibit acceptance of controversial clients and cases or that prohibit acceptance of cases aligning the legal aid clinic against public officials, governmental agencies or influential members of the community.”¹⁵ After the opinion was issued, the dean abandoned the oversight process.¹⁶

A number of state legislatures have also sought to restrict clinic representation. For example, in response to a civil rights suit brought by a law professor, a 1975 Arkansas appropriations bill made it unlawful for professors at the University of Arkansas School of Law “to handle or assist in the handling of any law suit in any of the courts of this State or of the federal courts.”¹⁷ The Arkansas Supreme Court held that the prohibition violated the Equal Protection Clause, as there was no reasonable basis for applying the restriction to some but not all faculty classifications or for restricting faculty at only one of the state’s two law schools.¹⁸

A similar bill introduced in Colorado in 1981 prohibited law professors at the University of Colorado from assisting in litigation against a governmental unit or political subdivision.¹⁹ The House of Representatives passed the bill but the Senate, after reporting it out of committee, postponed the bill indefinitely.²⁰

A 1982 bill in Idaho sought to prohibit public universities from offering any course or clinical program in which a student assists or participates in suits or litigation against the state or its political subdivisions, unless the assistance is rendered on behalf of the state.²¹ The legislature reportedly acted in response to a lawsuit filed by the clinic at the University of Idaho against the state department of transportation challenging a plan to expand a scenic highway.²² The bill passed the House, but was defeated in a Senate committee.²³

At the University of Tennessee, a clinic lawsuit against the state on behalf of prison inmates prompted the University’s Board of Trustees to mandate that “no suits of significance shall be brought by the UT Legal Clinic on behalf of any litigant against the State of Tennessee, its agencies or instrumentalities or any state official acting in his official capacity.”²⁴ As a result, the clinic does not handle cases against the state where attorney’s fees would likely be available.²⁵

The most dramatic restriction on a clinical program’s cases arose in Louisiana. When the Louisiana governor heard, in 1997, that Tulane Law School’s environmental law clinic was raising environmental justice concerns over the proposed siting of a petrochemical plant, he unsuccessfully tried to get the president of Tulane University to intervene.²⁶ After Tulane refused to back down, three business groups, at the urging of the governor, sent letters to the elected members of the state supreme court complaining that the clinic’s representation had harmed their economic interests and asking the court to restrict the ability of the clinic to provide free legal assistance.²⁷ In response, the Louisiana Supreme Court issued unprecedented restrictions to the state’s student practice rule that effectively prevent clinic students from representing community organizations, limit individual representation to persons living near the federal poverty level, and prohibit contact with prospective clients.²⁸

A federal lawsuit challenging the restrictions was dismissed by the district court without allowing any discovery, although the court acknowledged that political pressure may well have played a role in the new restrictions.²⁹ The Court of Appeals affirmed, holding that because the rule only prevented law students from assisting certain residents and did not restrict what licensed clinic attorneys may do or whom they may represent, the rule did not prohibit or punish speech.³⁰ The court also refused to find viewpoint discrimination in “an across-the-board, wholly prospective and viewpoint neutral general rule,” regardless of the motivation or effect.³¹ After the action of the Louisiana Supreme Court, critics of the Tulane clinic unsuccessfully sought to get the U.S. Court of Appeals for the Fifth Circuit and a U.S. District Court in Louisiana to impose similar restrictions on the types of clients that law clinics may represent.³²

Funding Restrictions

As direct attempts to prohibit law clinics from handling specific types of cases have been largely unsuccessful, legislators and university donors instead have sought to interfere in clinic lawyering by threatening or actually withholding funding from the university or law school.

For example, in 1981, Iowa legislators filed a bill prohibiting the use of funds available for state educational institutions for legal assistance to any person bringing a civil action against the state or a political subdivision or for programs providing civil legal assistance to state correctional system inmates.³³ The proposed legislation, which was filed in retaliation for the University of Iowa law clinic’s successful representation of prisoners in lawsuits against the state, was defeated.³⁴

In 1987, the governor of Maryland conditioned receipt of funding for civil legal services providers, such as the law clinics at the University of Maryland, on an agreement not to sue state agencies.³⁵ The governor dropped the restriction in response to public criticism but did insist on a requirement that recipients provide the state with an opportunity to resolve any disagreement prior to the filing of a lawsuit.³⁶

In 2010, in reaction to a lawsuit filed by the environmental law clinic at the University of Maryland against one of the state’s largest employers, the Maryland legislature threatened to withhold $750,000 in funding for the University until it provided details on law clinic clients, cases, expenditures, and funding.³⁷ After significant pressure from legal educators and the ABA, the legislature backed down, removing the funding restriction and narrowing the scope of the required report to non-privileged information about filed environmental law clinic cases.³⁸

In Arizona, legislators repeatedly attacked funding for Arizona State University’s law clinics after a clinic lawsuit over lack of access to prison law libraries led to a major victory and a sizeable attorney’s fee award.³⁹ Resentment over the litigation prompted a proposed rider in the 1995 state budget that would have dropped all funding for the school’s clinics, but the rider was eventually limited to prohibit the expenditure of state funds for litigation on behalf of prisoners.⁴⁰

An environmental law clinic at the University of Pittsburgh encountered similar attacks shortly after it opened in 2001. Upset over the law school’s involvement in an earlier lawsuit that had stopped a timber sale, state legislators inserted language in the state’s budget that prohibited the use of any taxpayer funds to support the new clinic. The provision was not expected to harm the clinic since it was funded solely from private sources.⁴¹ A few months later, however, the clinic came under new attacks from business interests and politicians for representing citizens challenging a major highway project. In response to this pressure, the University decided to interpret the budget provision to require the clinic to pay the University’s sizeable overhead costs, something that had never been charged to any other University unit and an amount that would bankrupt the clinic.⁴² In the midst of the controversy, the University Chancellor, a former dean of the law school, prohibited the clinic from seeking additional private funding until it agreed not to take on controversial cases and proposed that the clinic reorganize as a public interest law firm and move off campus.⁴³ After criticism by the faculty senate, however, the University changed course and announced that the clinic would stay in the law school and be funded privately with the University’s help.⁴⁴

On a number of occasions, clinic opponents have argued that it is illegal for clinics to use taxpayer funds to represent private parties or to sue public entities. Beginning in the early 1980s, timber interests and their attorneys attacked the University of Oregon’s environmental law clinic and were successful in getting the University president to sever the clinic’s two-year joint operating agreement with the National Wildlife Federation on the rationale that the Federation’s financial sponsorship of the clinic violated the University’s policy of institutional neutrality.⁴⁵

Even with this action, criticism continued, including a request by a legislator that the state attorney general determine whether the involvement of the clinic on behalf of private parties constituted an improper use of state funds.⁴⁶ The Oregon attorney general issued an opinion holding that “it is well established that a substantial public benefit [such as clinical legal education] is not defeated just because a private purpose also is served.”⁴⁷ The ABA’s Council of the Section of Legal Education and Admissions to the Bar also released a statement opining that attempts to interfere in law school clinical programs “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.”⁴⁸

These opinions, and the report of a University committee that the clinic did not violate the University’s policy of institutional neutrality, did not appease critics, however.⁴⁹ Facing a legislative threat to defund the entire law school over the environmental law clinic’s activities, the clinic’s directors decided to move its operations off campus and to reorganize in 1993 as a nonprofit public interest law firm.⁵⁰

When the law clinic at the University of North Dakota filed suit challenging a Ten Commandments monument outside city hall, a state legislator requested an opinion from the state’s attorney general on whether it was legal to expend taxpayer funds to sue another state-supported entity.⁵¹ As in the opinion issued earlier in Oregon, the North Dakota Attorney General explained that the clinic operated like a law firm representing individual plaintiffs, not the University, and that nothing in state law prohibited law students or faculty from representing individuals with claims against the state or its political subdivisions.⁵² Similarly, opponents in a case brought by the environmental law clinic at Rutgers School of Law–Newark tried to get the clinic dismissed by arguing that its free representation of a nonprofit organization constituted an illegal gift of money by the state to a private entity.⁵³ The court rejected the motion, noting that the clinic served two valid public purposes: to assist in enforcing environmental laws, and to provide hands-on training in the practice of law.⁵⁴

Funding pressure also has been a common tactic of critics of the Tulane Environmental Law Clinic. The first attack on Tulane’s clinic occurred in 1993 after the clinic’s director made a statement critical of the governor’s plan to reduce the state tax on hazardous waste disposal. The governor quickly called the president of Tulane University and demanded that he “shut [the director] up or get rid of him” or else Tulane would lose state financial support for a new downtown arena for the University’s basketball team, state financial assistance to Louisiana students attending Tulane, and the ability of Tulane medical students to gain access to state hospitals.⁵⁵ The University’s president refused to get involved.⁵⁶

Tulane’s president also refused to get involved when some petrochemical companies decided to withhold donations to the University and not hire any Tulane graduates until it closed the environmental law clinic.⁵⁷ Nor did the University get involved when a later governor urged business leaders to withhold their financial support of the University and threatened to revoke Tulane University’s tax-exempt status over the clinic’s activities.⁵⁸

Most recently, the petrochemical industry sponsored legislation in Louisiana that would require a university to forfeit all state funding for that fiscal year if any of its law clinics brought or defended a lawsuit against a government agency, represented any person seeking monetary damages, or raised state constitutional claims (subject to limited exceptions).⁵⁹ The bill was part of an eleven-point Louisiana Chemical Association plan to financially “kneecap” Tulane University into dropping its environmental law clinic. The plan included urging association members to cease donations to the University, curtailing recruitment of Tulane University graduates, contacting Tulane donors to urge them to cease their support, and enlisting the help of the state’s Congressional delegation.⁶⁰ The bill was defeated in committee, after criticism that it would harm legal education and cut off access to environmental representation at the very time the state was suffering the consequences of BP’s oil spill in the Gulf of Mexico.⁶¹

Many other unsuccessful efforts by alumni, donors, and politicians to intervene in law clinic matters have come with explicit or implicit threats to withhold funding. For example, in the early 1980s, an alumnus called the dean of Columbia University School of Law to complain about a lawsuit filed against his company by the school’s housing discrimination clinic.⁶² The dean responded that there was nothing he could or would do, explaining that clinic litigation decisions were made by the faculty running the clinic. When the clinic at Washburn University School of Law filed a class action challenging a City of Topeka towing ordinance, a city official called the University to complain.⁶³ In response, the law school’s dean explained that it would be unethical for the clinic not to sue the city just because it was a governmental entity and a funder of the law school. An alumnus of the Northwestern University School of Law threatened that he would hold the University accountable for damages unless it made the law clinic withdraw from representing the attorney’s former client in a lawsuit against that attorney.⁶⁴ While a 1996 age discrimination lawsuit brought by the law clinic at the University of Iowa was awaiting a decision by the jury, counsel for the opposing party called the University’s general counsel and threatened to withdraw the company’s funding to the engineering department if the case could not be resolved before the jury’s verdict.⁶⁵ The general counsel said he would not do anything other than simply inquire into the status of the case, which the clinic subsequently lost and which did result in the company’s termination of funding to the engineering department. The dean of the University of Illinois School of Law also refused to get involved in a 1997 clinic case after a law school alumnus and member of the school’s advisory board called to complain about a class action filed by the clinic against the state agency represented by the alumnus.⁶⁶ Likewise, the president of the University of Michigan refused to intervene in a law clinic class action against the Michigan Department of Corrections after the chair of the Michigan Senate’s appropriations subcommittee on higher education sent an e-mail questioning the appropriateness of the clinic’s lawsuit against the state and warning that such suits could interfere with the University’s legislative funding.⁶⁷ Recently, a Hofstra University trustee and $1 million donor complained when the clinic sued his company over housing discrimination claims.⁶⁸ The University’s president rebuffed the donor, stating that the clinic must exercise independent judgment in the case without considering the gift or any threat to withdraw it.⁶⁹

Practice Restrictions

The third type of interference seeks to control or influence the decisions or conduct of law clinic lawyers while they are representing a client. The intended effect of such restrictions is to burden clinic lawyers with obstacles that are not faced by opposing attorneys, in order to render clinic representation less effective or to drive the clinic to abandon the client or case.

A stark example of this approach occurred after the law clinic at the University of Denver received a directed verdict in a housing discrimination case and was authorized to submit an attorney fee petition. The opposing attorneys, both graduates of the law school, complained to the dean about the clinic’s handling of the case and were given a private meeting with the clinical program’s co-directors without the knowledge of the supervising clinic attorneys on the case.⁷⁰ Based on concerns raised at the meeting and on an alleged clinical program attorney’s fee policy, the program co-directors directed the clinic attorneys not to request fees.⁷¹ The supervising attorney responded that the client had a right to and had been promised the fees and that no policy against fee petitions had ever been communicated to the attorney.⁷² The attorney asserted that he had a professional responsibility to the client and no choice but to file the fee petition, which he did.⁷³ The program co-directors subsequently wrote to the clinic attorney that his filing of the petition over their objections would have “clear consequences.”⁷⁴ It did. The attorney had to leave the school at the end of the year when it failed to renew his contract.⁷⁵

In Michigan, a prosecutor listed law students in the University of Michigan’s Innocence Clinic as prosecution witnesses in an attempt to force the students to testify against their client.⁷⁶ The prosecutor offered no justification for disregarding rules of professional conduct that generally bar a prosecutor from forcing a lawyer to testify about a client, other than to claim that the student attorneys had interviewed a person who might exonerate the defendant.⁷⁷ The prosecutor ultimately dropped the case before the clinic’s motion to strike the students from the prosecution’s witness list could be heard.⁷⁸

Currently, a real estate development company, frustrated by its inability to gain access to internal clinic documents about a clinic case involving the company through normal discovery means, is seeking to force the Rutgers School of Law–Newark law clinics to comply with a request under the state’s Open Public Records Act.⁷⁹ The trial court rejected that effort, holding that the law school was outside the scope of the act and that clinic clients should not be disadvantaged by the nature of the entity that represents them.⁸⁰ An appellate court reversed the trial court [but the New Jersey Supreme Court upheld the trial court’s exemption, holding that record relating to cases at public law school clinics are not subject to the act, including requests for information about the development and management of litigation.]⁸¹

Another approach to limiting clinic attorneys aims to impose special ethics restrictions on clinic attorneys. In 1986, Rutgers School of Law–Newark confronted claims by clinic opponents that its representation of clients before state agencies violated a state conflict law which provides that no “state employee” may represent, appear for, or negotiate on behalf of any person or party other than the state in connection with any matter pending before a state agency.⁸² The New Jersey Supreme Court held that applying the phrase “state employee” to clinic attorneys when the representation of a client brings them before a state administrative agency would misperceive the history of the conflict law and would violate its legislative purpose.⁸³

After the unsuccessful effort in 1993 by the governor of Louisiana to pressure Tulane University’s president to fire its environmental law clinic director, the attorney who ran the governor’s department of environmental quality filed a complaint with the Louisiana Supreme Court alleging that the clinic had engaged in “political conduct” and overstepped its authority under the state’s student practice rule.⁸⁴ The court quickly rejected the complaint, finding no basis to get involved.⁸⁵ The Oregon State Bar likewise dismissed an ethics complaint filed against two Oregon Law School environmental law clinic attorneys by an opposing attorney who claimed the clinic attorneys had selectively presented scientific studies to a judge and failed to report contradictory information.⁸⁶

A unique effort to control the decision making of clinic attorneys occurred at the University of North Dakota School of Law. In 2002, its clinic filed suit on behalf of residents challenging a government display of a Ten Commandments monument.⁸⁷ A vocal critic of the law clinic then wrote a letter to the clinic stating that the “pagan religious” statute of the Greek goddess Themis on top of a courthouse offended him as a Christian and requesting that the clinic develop a lawsuit on the same basis as the clinic’s suit challenging the Ten Commandments monument.⁸⁸ The clinic declined the request for assistance, explaining that it was not taking any new cases at the time and that the critic’s persistent and antagonistic actions against the clinic would “adversely affect our ability to establish an effective client-attorney relationship with you and would consequently impair our ability to provide legal representation to you.”⁸⁹

The critic then filed a pro se complaint in federal court against the clinic director, alleging that her refusal to provide legal representation violated his constitutional rights to free speech and equal protection.⁹⁰ The district court granted judgment on the pleadings for the defendant, holding that an attorney should not be compelled to represent a client where the attorney believes it would violate the attorney’s ethical obligations.⁹¹ The U.S. Court of Appeals, however, reversed the dismissal on the pleadings, explaining that because the plaintiff alleged that the basis for denying representation was pretextual, he should be given an opportunity to prove his claim against the clinic director.⁹²

A final example of interference with clinic lawyering involves St. Mary’s University. In 2002, its human rights clinic filed a complaint with the U.S. Department of Labor against the Mexican government alleging violations of the North American Free Trade Act, after first following what the clinic director believed was the school’s pre-filing notification policy and receiving the approval of the clinical program director.⁹³ A few days later, the clinic director learned from one of the clients that the school’s dean and associate dean had called to tell the client that the school was immediately withdrawing from the representation.⁹⁴ The dean’s letter to the Department of Labor stated that the clinic would not be participating in the case and that the clinic director, in her individual capacity and not on behalf of the school, would represent the complainants, something which had never been discussed with the director.⁹⁵ At the same time, the school’s associate dean came to the clinic’s file room and began looking through the case files, over the objection of the clinic director.⁹⁶ The dean later stated that he withdrew the clinic from the case without discussing it in advance with the client or clinic director because the University had not authorized the filing and for budgetary concerns.⁹⁷

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