StarBulletin.com

School law clinics face a backlash


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POSTED: Sunday, April 04, 2010

ANNAPOLIS, Md. » Law school students nationwide are facing growing attacks in the courts and legislatures as legal clinics at the schools increasingly take on powerful interests that few other nonprofit groups have the resources to challenge.

On Friday, lawmakers here debated a measure to cut money for the University of Maryland's law clinic if it does not provide details to the legislature about its clients, finances and cases.

The measure, which is likely to be sent to the governor this week, comes in response to a suit filed in March by students accusing one of the state's largest employers, Perdue, of environmental violations—the first effort in the state to hold a poultry company accountable for the environmental impact of its chicken suppliers.

Law clinics at other universities—from New Jersey to Michigan to Louisiana—are facing similar challenges. And legal experts say the attacks jeopardize the work of the clinics, which not only train students with hands-on courtroom experience at more than 200 law schools but also have taken on more cases against companies and government agencies in recent years.

“;We're seeing a very strong pushback from deep-pocket interests, and that pushback is creating a chilling effect on many clinics,”; said Robert R. Kuehn, a law professor at Washington University in St. Louis, citing a recent survey he conducted that found that more than a third of faculty members at legal clinics expressed fears about university or state reaction to their casework and that a sixth said they had turned down unpopular clients because of these concerns.

But critics say law clinics are costly, unaccountable and often counterproductive to states' interests, especially as they have broadened the scope of their work. The debate has raised larger questions about academic freedom at state-financed law schools and the role lawmakers should have over decisions at those schools.

Michael D. Smigiel Sr., a Republican who represents areas along Maryland's upper shore of the Chesapeake Bay, questioned whether such clinics should be taking sides on controversial issues.

“;I'm pretty sure that there are a lot of taxpayers who would be uncomfortable funding the legal clinic if it was solely interested in just promoting the death penalty or pro-life issues,”; he said.

In Louisiana, the Legislature is considering a bill forbidding law students at clinics that receive any public money from suing government agencies, companies or individuals for damages unless exempted by the Legislature. It is a response to a suit brought by the Tulane Law School clinic on behalf of an environmental group against federal and state environmental regulators, seeking greater enforcement of air quality standards in the Baton Rouge area.

“;There is no reason that tax money should pay for these law students to act like regulators,”; said state Sen. Robert Adley, a Republican who submitted the bill in response to a request from his state's oil and gas industry.

In some states, the challenges may redefine the parameters of attorney-client privilege and the role that law students can play in cases. In March, a Michigan prosecutor called University of Michigan Law School students to testify against a man they had been working to exonerate from criminal charges.

And after students at a state-financed law school clinic at Rutgers University in New Jersey sued to stop a developer's plans for a strip mall in Franklin Township, the developer filed suit against the clinic under the open-records law seeking copies of internal documents, saying he planned to expose how the clinic used taxpayer money to discourage investment in the state.

An appellate court in Trenton will hear oral arguments this month in the case.

“;Like the hapless Wizard of Oz, the clinics want all attention directed elsewhere, while they struggle mightily to keep concealed their actual use of public funds,”; Kevin Kelly, the lawyer for the developer, Sussex Commons, wrote in his brief.

The fight is proving especially heated here in Maryland because it so directly focuses on Perdue, one of the state's most powerful political players and the sixth-largest poultry company in the country.

The suit accuses Perdue and Alan and Kristin Hudson, two Maryland chicken farmers who contract with Perdue, of polluting the Pocomoke River and allowing chicken waste from the farm to flow to the Chesapeake Bay.

The suit argues that Perdue dictates so much of how farmers handle their flocks—including the food and medicine the chickens get, as well as the size and location of the bird houses—that the company effectively shares operational control of the farm and thus should be held accountable for what happens there.

Luis A. Luna, a spokesman for Perdue, said that though the company had done no lobbying in support of the pending legislative measure, the company's chairman, Jim Perdue, went to Annapolis in early March to tell lawmakers that cases like this one represented “;one of the largest threats to the family farm in the last 50 years.”;

“;Perdue can take care of itself,”; Luna said. “;But the small farmers who make up an important part of this industry cannot survive against lawsuits like this.”;

Tulane is no stranger to the type of controversy raised by the recent legal fight. It is a private university, but it has tax-exempt status and receives over $800,000 a year in public money for educating state students and millions of dollars more for endowed chairs.

In 1998, after the law school's environmental law clinic raised concerns over the proposed site of a petrochemical plant, the Louisiana Supreme Court, which licenses lawyers, put tight restrictions on which cases the students could argue in state courts.

“;We're going to tell legislators all over the state, if they want to play hardball by trying to kneecap industry in Baton Rouge,”; said the Louisiana Chemical Association president, Dan Borne, “;then we should play hardball and kneecap them with their state appropriations.”;

Back in Maryland, Rena Steinzor, a law professor at the University of Maryland and a former director of the environmental law clinic there, rejected the idea that law clinics in her state or elsewhere were trying to harm industry. “;The clinics represent people or groups that can't otherwise afford lawyers and by definition, this work often puts the clinics on the opposite side of the government or powerful interests,”; she said.

“;If Maryland has a clean environment, a fair legal system and an unpolluted bay,”; she added, “;doesn't that help the financial productivity of the state?”;