Ethics in Practice: Developing Practice -Ready Graduates in a Field Placement Course that Teaches Legal Ethics

1. Ethics in Practice: Developing Practice-Ready Graduates in a Field Placement Course that Teaches Legal Ethics 2012 Midwest Clinical Conference St. Louis, MO Denise Platfoot Lacey University of Dayton School of Law Liz Ryan Cole Vermont Law School

2. Goals • Excite you about teaching ethics as a component of a field placement course or other type of clinic • Identify potential obstacles and benefits • Include your experience and perspective • Consider factors important in implementation • Provide one model for your consideration

3. Can we be expected to produce “practice-ready” graduates? We CAN prepare Ethics practice-ready grads.

4. Course Models for Teaching Legal Ethics • Stand alone podium based • Pre or post field experience • Simultaneous but not integral • Simultaneous with and integral to field placement

5. Why is teaching legal ethics in conjunction with an externship a good idea and how might it produce “practice-ready” graduates?

6. Externships foster development of professional identity: Carnegie’s third apprenticeship • Kelly S. Terry, Externships: A Signature Pedagogy for the Apprenticeship of Professional Identity and Purpose, 59 J. LEGAL EDUC. 240 (2009). See also Laurie Barron, Learning How to Learn: Carnegie’s Third Apprenticeship, 18 CLIN. L. REV. 101 (2011)

7. Context-based learning is key • “…contextualized practice does an infinitely better job of inculcating the understandings, skills, and dispositions that comprise competence in the real world, be it a job, a profession, or a service activity. Likewise, although there may be a useful synergy or complementarity between the classroom and practice, that mutual reinforcement occurs only if practice is placed in the foreground. In reaching this conclusion that performance activities in actual practice settings are crucial to ecological learning, I draw principal support from researchers who propose that apprenticeship-like experiences are a cornerstone of effective learning even during formal schooling.”  Brook K. Baker, Practice-Based Learning: Emphasizing Practice and Offering Critical Perspectives on the Danger of “Co-Op”tation, 56 N.Y.L. Sch. L. Rev. 619 (2011). • “Law schools cannot prepare students for practice unless they teach doctrine, theory, and practice as part of a unified, coordinated program of instruction.” Roy Stuckey et al., Best Practices for Legal Education73 (2007). • “Law schools can provide opportunities for students to engage in context-based learning in hypothetical as well as real life contexts.” Id. at 105.

8. As a result of this approach, students should be able to: • Recognize ethical dilemmas • Identify relevant rules of professional conduct • Apply the rules and other law • Identify other considerations (e.g., moral, economic, social, strategic, and practical factors) that must be considered in resolving specific dilemmas • Discover where to go to get guidance on ethical dilemmas and how to collaborate and consult with colleagues to resolve dilemmas • Consider the roles that lawyers might/should play in representation when ethical issues arise • Enter practice enthusiastic about the role they may play in writing and enforcing rules

9. Considerations for developing a Legal Ethics course linked to externships

10. Level of Course Survey course with no pre-requisite vs. Advanced Course with PR as pre-requisite

11. Course Credit Ethics component as a separate course from the externship field work component

12. Role of Faculty • Who monitors students’ externship field work experiences? • Ethics instructor vs. Externship Faculty/Director • Who teaches the ethics course? • Full-time faculty vs. adjunct faculty

13. Student-Faculty Ratios Benefits of small ratios

14. Confidentiality Issues Field office confidentiality must be maintained when students are asked to relate their field experience to the seminar content

15. Role of Field Supervisors Selection and training

16. Other considerations and experiences?

17. Integral Course Model

18. Course Format • 2-credits, survey course • Teaching Materials • Support • Whether students can return to campus • CALI lessons • Role of MPRE • TWEN based discussion group • Smaller tutorials by practice area

19. What benefits does tying the externship to the study of ethics offer? • What would/do you do?

20. Challenges • Confidentiality concerns on the part of mentors Louisiana's anti-SLAPP statute does not prevent a legal aid group from suing a former summer law clerk that it claims has revealed client confidences in literary works she has published about her experiences, the U.S. District Court for the Eastern District of Louisiana held Nov. 23 (Louisiana Crisis Assistance Center v. Marzano-Lesnevich, E.D. La., No 11-2102, 11/23/11). • Time for faculty member to respond to student observations Modified quote from a student journal - “As a legal writing sample, I submitted alegal memorandum I wrote. Because all the documents are available for public access and no one told me my work product was confidential, I used this memorandum without asking approval. Then at one of our classes I suddenly realized my potential problem. I sent an email to my supervisor to ask for approval and admitted I had already sent out this memorandum to several entities. This issue evolved and has haunted me since.”

21. Strategies • Hypotheticals • Impliedly authorized (MR 1.6 cmt. 5) • Express client agreement

22. Techniques to tie externship experience to doctrinal concepts • Externship “audits” (thanks for this term to Cindy Slane and Carrie Kaas who codirected the clinics at Quinnipiac for many years) • Students as “Ethics detectives” • Class discussions prompted by observed ethical dilemmas • Field Supervisor interviews and class visits • Directed journals • Students draft multiple choice type questions

23. Externship “audits” • Students assess a particular PR topic at the externship field office, determine how it is addressed in that setting, and consider alternatives and best practices • Students devise a PR dilemma on a topic that is common to their field office practice area or type • Students identify “practice realities” they have observed in their field work and describe how those affect a lawyer’s ability to comply with the Rules or engage in best practices (e.g., economic realities, case load, support staff, office organization, etc.)

24. “Ethics detectives” • Tell students they are “Ethics Detectives”. Assign them to interview field supervisors and other lawyers at practicum site regarding a PR topic and bring knowledge back to class

25. Class Discussion • Structure class discussions prompted by observed ethical dilemmas

26. Field Supervisors in class • Invite field supervisors to speak during class on a PR topic they deal with on a regular basis • Invite field supervisorswith a experience similar to the topic for the class to read the materials in advance of class, then respond to students’ resolution of problems from course book • Assign a student to work with her mentor to write a “better” problem, based on their own experience

27. Other ideas • Directed journals on ethics topics • Assign students to draft multiple choice type questions and answers reflecting their experience in the practicum