September 11, 2002
YLS Lawyering Ethics Clinic Wins ABA Award for Professionalism
The Lawyering Ethics Clinic at Yale Law School received the American Bar Association's 2002 E. Smythe Gambrell Professionalism Award in August. The award recognizes programs at law schools, bar associations, and other organizations that increase the understanding of professionalism in the legal community, and is given to two programs each year. The Lawyering Ethics Clinic was particularly cited for its excellence and obvious commitment to professionalism.
Through the Lawyering Ethics Clinic, law students represent individuals bringing ethics claims against Connecticut attorneys before the Statewide Grievance Committee. The clinic, founded in Fall 2000 by Dennis Curtis, clinical professor of law, and Mary Clark, then the director of the Liman Program, has been taught for the last year by Curtis and Deborah Cantrell, director of the Arthur Liman Program and of projects on the profession.
The clinic provides assistance to clients caught in a peculiarly difficult system. To bring a grievance in Connecticut, a client must not only initiate a complaint, but also see the case through to completion. After a panel of the grievance committee finds probable cause that an ethics violation occurred, the client is responsible for arguing the case at an administrative hearing. Usually this means confronting a lawyer the client had previously hired. Cantrell notes that this results in a low percentage of cases reaching judgment. "To be told that you have to take something to trial yourself--when you're not an attorney--is very daunting."
Throughout the year, the two instructors and the students review all of the cases in the state in which a grievance committee panel found probable cause and select cases to pursue. They write letters to the complainants in these cases inviting them to seek the LEC's representation. The solicitation process itself becomes a first lesson in the practical application of ethics. Says Cantrell, "Students learn about the rules relating to attorney solicitation. There are very particular things that we can and can not do in the letters--including certain things have to be written in red ink versus black ink. And it's those little details that remind students how picayune the rules can sometimes be and how easily you can get tripped up."
So far the clinic has had a very high rate of response to their solicitations--almost every complainant contacted wants to work with the LEC. Students begin working on their cases, setting up a discovery plan, interviewing witnesses, researching, and planning their arguments. At the actual hearing, the student always sits first chair, with Curtis and Cantrell available for support.
The grievance cases progress quickly to completion--often taking around a month--meaning that each student can handle several in a semester. The complete cases give students "a sense of beginning and end, which is satisfying from the point of view of a practitioner," says Cantrell.
The cases handled by the clinic have involved subject matter from criminal law to trusts and estates to real estate law. In one particularly unusual case, a client's medical records had been improperly disclosed to an attorney, who misused them. The clinic successfully argued that the records should be protected.
Whatever the details of the case, the students approach the subject matter by thinking about ethical issues from the outset. Cantrell points out that ethics in the profession seldom involve dramatic decisions or wrongdoing (such as a client revealing that he's committed a violent crime, or a recent case in which a lawyer spanked a client), but rather the mundane behaviors of business. "Most attorneys who get into trouble ... have really just fallen down on some day-to-day things," says Cantrell. "They aren't returning phone calls to their clients. They haven't talked to their clients about what strategy to follow in the case."
Throughout the year, the clinic meets weekly in academic session and considers some of the theoretical issues surrounding their activities. Is the current system effective? How could it be improved? Is the model of professional self-regulation appropriate? The clinic was founded in part out of Curtis's interest in how disciplinary proceedings influence the profession, and Curtis and Judith Resnik, the Arthur Liman Professor of Law, published an article on the topic in the April 2002 Fordham Law Review.
Participants in the clinic have also met regularly with the Statewide Bar Counsel's Office, which oversees the grievance process, and reported on their experiences and recommendations. The state recently decided to begin making reforms in the grievance process, including the creation of an office to investigate and prosecute grievances. Cantrell says that one of the clinic's tasks for the upcoming year is to figure out how it can best fit into this new structure and continue its work. In addition to studying the grievance process, Cantrell notes, "we have had the good fortune of being able to participate in efforts to change the process."