Lawyering in the Academy: The Intersection of Academic Freedom and Professional Responsibility
Journal of Legal Education, Vol. 59, 2009
29 Pages Posted: 8 Oct 2009
Date Written: October 5, 2009
The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.
Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such as politicians or business interests attempting to pressure universities and law schools not to represent or to abandon the representation of some clients. Conversely, internal intrusions on law clinic lawyering, usually by university or law school administrators seeking to influence whether and how clinical faculty and students represent some clients, have not been well-publicized. Consequently, there is virtually no scholarly attention to the tension between the individual lawyer-professor's academic freedom and professional responsibility to clients and the law school's decision-making authority.
The authors are motivated to write this article because of some of the more egregious instances of interference on lawyering in the academy, which include the firing of two clinical faculty members for their involvement in a civil rights case, pressure by university administrators on clinical faculty to avoid taking on potentially controversial cases, and a law school deans forcing the clinic to withdraw from client representation or to limit the types of remedies sought for clinic clients. In these instances, the interference with the faculty representation of clients as part of their teaching was not motivated by educational or professional responsibility concerns but, apparently, to mollify critics of the faculty member.
Against this backdrop, this article considers how the practice of law in the legal academy is both similar to and different from the typical practice of law in a firm or public interest organization and the teaching that law faculty do in the classroom. The authors focus in particular on how notions of academic freedom apply to professors lawyering in the academy and how the professional responsibilities of attorney-professors influence their teaching pursuits and relationships with the dean, other faculty members, and the university administration.
The article focuses on two underlying questions. First, how much discretion should individual faculty have in selecting cases for their courses? Second, once a faculty member undertakes to represent a client within a course, should a dean, clinical program director, or other person not involved in the client’s representation be able to direct the faculty member's decisions on how to handle the matter? In the process of addressing these issues, we suggest an approach that seeks to be true to the professional rights and responsibilities of law faculty both as academics and attorneys.
Keywords: academic freedom, academy, autonomy, clinic, clinical education, discretion, ethics, faculty governance, freedom in the classroom, interference in clinical programs, internal interference, law clinic, practicing law within law schools, professional responsibility, restrictions on clinics
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