Glance at any law school’s website and it becomes readily apparent that clinical legal education has moved into the mainstream of law school programs. And while law schools may often give pride of place to their clinical programs on their websites—quick to remind students, prospective applicants, and employers alike that they offer practical hands-on curricular components—it was only recently that the American Bar Association (ABA) Section of Legal Education and Admissions to the Bar, the national accrediting body for U.S. law schools, revised its standards in favor of more experiential course work.
Law clinics, field placements, and simulations must each integrate theory and practice, develop professional skills, and give students the chance to put those skills and knowledge to use.
In 2008 the ABA announced it was undertaking a review of its accreditation standards “to think comprehensively about whether the Standards are appropriate and accomplishing their objective of assuring a sound program of legal education that will prepare law school graduates to become effective members of the legal profession.” The eventual result was the ABA’s revised Standards and Rules of Procedure for Approval of Law Schools, 2014–2015, which established many of the core frameworks for clinics that continue to exist today. Through its 2014–2015 Standards, the ABA made updates and tweaks including explicit credit-hour requirements for experiential courses, a more detailed definition of law clinics in contrast with other acceptable types of experiential courses, and clearer facility requirements for operating law school clinics. (To view the full evolution of the Standards, see the ABA’s Standards Archives here.)
The latest 2019–2020 version of the Standards contains explicit guidance relating to clinics. Specifically, law schools are to require students to complete at least six credit hours in at least one law clinic, simulation course, and/or field placement. While each of these three options are to provide “substantial lawyering experience,” law clinics involve advising or representing real clients or serving as a third-party neutral; simulations do not involve real clients but offer a “reasonably similar experience” of lawyerly advising or representing; and field placements are “reasonably similar experiences” that take place outside of law clinics, are supervised by lawyers or others “qualified to supervise,” and are carefully structured to “assure the quality of the student educational experience.” These are the only three options that the Standards offer for filling its six-credit-hour experiential requirement, and each one must integrate theory and practice, develop professional skills, and give students the chance to put those skills and knowledge to use such that their performance can be supervised and critiqued. In addition, the Standards emphasize that law schools shall have “substantial opportunities” for their students to participate in law clinics or field placements as well as in pro bono or other public-service-oriented legal work or law-adjacent activities.
Student practice rules
In addition to the ABA rules, there are other rules that impact clinical legal education. One particularly noteworthy example is the varied landscape pertaining to “student practice rules.” Each state and federal court—and a few federal agencies including the departments of Justice, Homeland Security, and Veterans Affairs—have their own student practice rules that define the bounds governing law students’ legal activity in those settings. To appear in court in New York, for example, law students require written consent from both their supervising attorney and the client (the person on whose behalf the student is appearing). Law students practicing in New York are also limited to certain prescribed activities and courts depending on the matter in question—in noncriminal vehicle and traffic matters, for example, they are authorized in local criminal and justice courts to perform services including arraignments, conferences, appearances, pleas, and trials provided, again, that they are under the supervision of a licensed attorney. This variability by jurisdiction, court, and matter inevitably shape any given student’s clinical legal experience depending on where they are and what they are trying to do.
The Standards also reference clinical faculty and the facilities appropriate for clinical work. The portion that relates to clinical faculty (see Minna J. Kotkin’s “Clinical Legal Education and the Replication of Hierarchy” for more) stipulates that law schools ought to treat their clinical faculty “reasonably similar” to how they treat their other faculty, such as providing job security “reasonably similar” to tenure for full-time clinical professors. Then, in describing what law school facilities shall include (as Kotkin notes in “Clinical Legal Education and the Replication of Hierarchy,” the Standards prefer the use of “shall,” which seems to exist somewhere between “should” and “must”), the Standards define an appropriate space for clinical programming as one that includes “confidential space” for working with clients and client files and “assures competent and ethical representation of clients and meaningful instruction and supervision of students.”
The ABA’s Standards are a powerful force that guides how law schools behave.
Again, these Standards are applied in a specific context—to determine whether a law school should have their ABA accreditation granted or revoked. Their significance is amplified because the ABA is recognized as the accrediting agency for law schools by institutions like the U.S. Department of Education and law degrees from ABA-accredited schools are specifically required in many states to sit for the bar exam. As we write in “Teaching Ethics and Professionalism,” and as the National Conference of Bar Examiners documents, 23 states and territories require a degree from an ABA-approved school to sit for the bar exam, and all acknowledge them as proof of a satisfactory legal education. Put short, there is a lot riding on ABA accreditation for any given law school, and hence, the Standards are a powerful force that guides how law schools behave. Setting aside law schools’ manifold and context-specific motivations for structuring their law clinics as they do, the ABA Standards’ explicit emphasis on clinical legal education is significant.