Reprinted in Civil Liberties in American History: Major Historical Interpretations, vol. 1, edited by Kermit L.Hall, 1-20. New York: Garland Publishing, 1987.

Boston College Law School Faculty Papers

The Formative Period of First Amendment Theory, 1870-1915

This article examines how best to educate law students with disabilities so that they can successfully transition from classroom to practice. At the very time that the importance of experiential learning is being trumpeted as critical to the preparation of all law students for practice, all too little attention has been given to the role of clinical education in helping students with non-visible disabilities succeed in their chosen careers. Increasingly, law students are seeking accommodations for a range of mental health, cognitive, and learning disabilities. Law schools have become more adept at providing accommodations in academic classes to qualified students with documented disabilities. Note-takers, special testing and attendance rules, and access to academic support programs are common features of most law schools' disability law protocols. But, how best can we help prepare these students for the demands of practice? Until now, law faculty have lacked guidance on this important topic. This article seeks to fill that gap by studying how law school clinics and accommodations officers can assist students as they begin practice. First we explore the limits of protections afforded by the Americans with Disabilities Act (ADA), after acknowledging that its employment provisions apply to clinics. We then review two case studies built on our clinical experience in an effort to develop best practices for law faculty and administration in helping these students overcome the accommodations gap between classroom and practice.

Beyond the ADA: How Clinics Can Assist  Law Students with “Non-Visible” Disabilities to Bridge the Accommodations Gap Between Classroom and Practice

Through educational barriers, occupational licensing, and bar association activities, American lawyers have endeavored to achieve a monopoly on the practice of law. One tool that has helped cement their ability to define lawyer-only turf is the unauthorized practice of law (“UPL”) doctrine. </p 	This Article, which explores Massachusetts’ attempts to bar lay practitioners, reveals that the state’s unauthorized practice of law movement took hold relatively recently. It has been marked by fits and starts, by active proponents and by equally determined naysayers, by headline grabbing politicians and bar leaders, and by increasingly assertive judges. Perhaps most importantly, this account also reveals much about the inefficacy of judicial decision making in regulating lay practice. </pMassachusetts’ experience with defining the practice of law recently came to the forefront in one hotly contested field – real estate conveyancing. In 2011, the state’s highest court, the Supreme Judicial Court (“SJC”), interpreted the Commonwealth’s UPL statutes in litigation that remains currently unresolved. Real Estate Bar Association, Inc. (“REBA”) v. National Real Estate Information Services, Inc., 459 Mass. 512 (2011). After acknowledging that the “practice of law” is difficult to define, the SJC invoked “custom and practice” as a critical benchmark by which courts should undertake a fact-based inquiry necessary to determine whether certain conduct by laypersons constitutes unauthorized practice. </pThis review examines the key rationales cited by the SJC for restricting the field to members of the bar. It reveals a tradition which has attempted to reconcile the public’s access to services against lawyers’ interest in protectionism, but which has left UPL principles in a confused muddle. While the Massachusetts judiciary has carved out for itself the constitutional authority to define the practice of law, its few clear precedents provide insufficient guidance for application to modern social needs and economic realities. The underlying REBA litigation is a useful example of the inherent limitations of the kind of case by case approach which has marked the Massachusetts experience. The Article concludes with cautionary remarks about the consequences of judicial control of the UPL doctrine and identifies alternative mechanisms by which courts could proceed.

Custom and Practice Unmasked: the Legal History of Massachusetts' Experience with the Unauthorized Practice of Law

Law school faculty engaged in externship teaching have long recognized that the tripartite nature of externship practice, which joins law students, field supervisors, and faculty supervisors in the common enterprise of providing students with opportunities to observe, participate in, and reflect on the work that lawyers do in various practice settings, gives rise to ethical issues that are in some ways distinct from the ethical issues commonly encountered in in-house clinical settings. This article explores the challenges facing each of the externship players with respect to a number of such issues, all clustering around three central professional obligations lawyers owe to clients and others for whom they perform legal work: the duty to keep confidential client and other workplace information; the duty to avoid conflicts of interests in client representation and in the adjudicative process; and the duty of competence, the first ethical duty announced in the Model Rules of Professional Conduct. The article presents case scenarios as the context for an examination of these issues from the vantage point of each of the externship players: the extern, whose participation in an externship program will require him to engage with ethical issues on a regular basis; the field supervisor, who is intent on adhering to the highest professional standards in the work setting and who, under most student practice rules, is charged with professional responsibility for the extern’s legal work; and the faculty supervisor, whose professional and pedagogical interests lie in ensuring that her externship program complies with all applicable ethical standards. It then proposes protocols to assist the players in meeting their respective ethical obligations. These protocols provide guidance for protecting the confidentiality of client or workplace information while allowing externs -- in journal entries, tutorials, and seminar meetings -- to discuss the important personal, professional, and systemic issues raised by their field experiences. They suggest practices that will enable externs, field supervisors, and faculty supervisors first to identify, and then either to avoid or cure, conflicts presented by externs’ obligations to previous or current clients, their personal interests or activities, or their relationships to third parties. Finally, they outline strategies for structuring field placement experiences, supervisory interactions, and seminar curricula in ways that will help students to develop the skills and professional habits they will need to provide competent representation to their clients.

Ethics in Externships: Confidentiality, Conflicts, and Competence Issues in the Field and in the Classroom

Individuals are drawn to connect with other people because of shared experiences and personal characteristics. These connections often help people establish rapport, trust, and engagement. Surely these same benefits would apply in the lawyer-client relationship where a lawyer’s ability to find common links with her client would facilitate the lawyering process. Perhaps that is true, but not necessarily and not without some potential costs. As clinical teachers, we have become increasingly wary that assumptions attributable to sameness can complicate lawyering. Untested assumptions, whatever their source, can impair lawyering judgments. In our collective experience, we have found that assumptions rooted in sameness are particularly seductive and bring unique challenges to our work. Our aim therefore is to identify the assumptions that accompany sameness, to increase the likelihood that personal and experiential connections enhance the lawyer-client relationship and the lawyering process, and to minimize the possibility that they interfere. In addition, we explore how questions of sameness, or its complement, difference, arise in clinical supervision and provide suggestions to best address these questions with our students, our clients, and third parties within the justice system. Our focus is on the intersection of difference and sameness, as they are assumed or actually exist between lawyer and client, and the effect of difference and sameness together on the lawyer-client relationship and the lawyering process. In our experience, lawyers and clients build professional relationships both because of shared personal characteristics or life experiences and in spite of them. Just as other commentators have helped lawyers develop methods for bridging difference, we seek to offer tools for dealing with the consequences of assumptions rooted in sameness. It is our hope that this inquiry will assist clinic students and their supervisors to acknowledge and deal with the normal human response of making and acting on connections. Ultimately, we hope that all lawyers will interact with clients with holistic awareness of sameness and difference.

Challenges of “Sameness”:  Pitfalls and Benefits to Assumed Connections in Lawyering

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns in a direct way, using the example of social work as an exemplar for many kinds of interdisciplinary practices. Part I of the Article explores the commitments of zeal and autonomy in interdisciplinary work involving lawyers and social workers. It acknowledges that social workers and lawyers receive differing training about advocacy stances, attention to the needs of the larger society, and concern for the best interests of clients, and therefore are apt to confront client interactions with dissimilar orientations. But the authors conclude that those differences in orientation in fact offer critical opportunities, when the professionals collaborate, for more effective lawyering, rather than posing a risk to a lawyer's or a social worker's ethical commitments. A lawyer and social worker team are likely to offer clients a richer brand of legal representation when working together than a lawyer working without the collaboration would provide. While some pointed ethical conflicts might arise, the authors contend that those conflicts are not unlike those faced by any reflective lawyer practicing without the benefit of collaboration. Part II of the Article addresses the mandated reporter issue. When lawyers and social workers (or other helping professionals) collaborate, lawyers tend to be prohibited from reporting suspected child abuse and neglect if learned during a client's representation, while social workers tend to be mandated by state law to make a report. The authors contend that when a social worker serves within a law firm or legal clinic as a consultant to the legal team, the social worker ought not be covered by the state mandated reporting laws if the lawyers are not so covered. If the social worker, by contrast, provides social work services to the law firm's client, though, the state reporting laws will apply, and the collaboration must account for the resulting conflict in confidentiality duties.

Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting

Immigration advocates have long noted how ethical challenges pervade certain areas of their practice, particularly in the employment and spousal contexts. A significant body of literature exists that attempts to identify clear, professional norms for grappling successfully with thorny ethical questions inherent in those areas. This article expands that scholarship by studying the ethics issues that arise for counsel representing youth seeking Special Immigrant Juvenile ("SIJ") status in state court. Using SIJ case studies to explore questions of confidentiality, conflicts, and candor, this article uncovers key factors that complicate practitioners' ability to comply with existing ethical mandates. One defining feature of SIJ relief is the requirement that separate proceedings be brought in state court as the first step in establishing youth's eligibility for relief. Other distinguishing factors include the effects of abandonment, abuse, and neglect on the SIJ youth. In addition, the decision-making capacity of SIJ minors is subject to scrutiny under the relevant ethics rules due to their age. These factors combine with a systemic lack of resources to pressure SIJ advocates into unworkable attorney-client relationships rife with conflicts of interests. This project confirms that SIJ practitioners receive inadequate guidance from existing rules of professional conduct and proposes practical reforms of the state court SIJ process, as well as new trainings on implementation of core ethics rules in the SIJ representation. The article concludes with an invitation for further study of these proposals as a critical step in offering long-overdue relief to SIJ counsel.

Ethics Issues Inherent in Special Immigrant Juvenile State Court Proceedings - Practical Proposals for Intractable Problems

Technological advances have made law school administrations, faculties, and students increasingly interested in recording class sessions. Administrators gain significant flexibility if class recordings are readily available to mitigate weather, transportation, medical, or other unexpected emergencies. Faculty members appreciate students' enhanced comprehension of material following their subsequent study of the in-class proceedings. Students with disabilities and those who want more opportunities for content review benefit from access to recordings. Despite those acknowledged advantages, there are legal parameters for class recordings that have not previously been addressed in the literature. Existing legal constraints on class recording by any law school stakeholder include federal and state wiretapping laws, federal statutes protecting students with disabilities, privacy protections, and copyright provisions. In addition, the unique pedagogical objectives of law school education, designed to prepare professional advocates, further complicate the development of an effective taping policy. This Article reviews the significant legal issues inherent in various classroom taping scenarios and then offers law schools a framework for adoption of a cohesive class recording policy consistent with legal norms.

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The Formative Period of First Amendment Theory, 1870-1915

Beyond the ADA: How Clinics Can Assist Law Students with “Non-Visible” Disabilities to Bridge the Accommodations Gap Between Classroom and Practice

Custom and Practice Unmasked: the Legal History of Massachusetts' Experience with the Unauthorized Practice of Law

Ethics in Externships: Confidentiality, Conflicts, and Competence Issues in the Field and in the Classroom

Challenges of “Sameness”: Pitfalls and Benefits to Assumed Connections in Lawyering

Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting

Ethics Issues Inherent in Special Immigrant Juvenile State Court Proceedings - Practical Proposals for Intractable Problems

Classroom Taping Under Legal Scrutiny—A Road Map for a Law School Policy