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

Abstract:     
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.

Keywords: professionalism, competency, confidentiality, conflicts, externships, clinics

JEL Classifications: K40

Accepted Paper Series