Jan. 6, 2021 – Law students need practical, hands on experience. Wisconsin needs more law-trained advocates to represent low-income individuals and families. Why not expand rules that allow law students to represent individuals under supervision?
That’s exactly what the Wisconsin Access to Justice Commission is asking the Wisconsin Supreme Court to do in a petition (20-04) to amend Supreme Court Rule (SCR) Chapter 50, which governs to the practical training of law students.
Under current rules, law students must finish one-half of law school before they can represent clients in court under supervision or give supervised legal advice.
But Mitch, a clinical law professor at U.W. Law School and director of the school’s civil legal clinics, says delaying clinical opportunities delays a law student’s ability to obtain crucial practical experience while providing legal services to those in need.
“If we let students practice sooner, we will also increase access to justice,” said Mitch, who supervises U.W. Law School’s Neighborhood Law Clinic. “And we get students who are more ready because they have those first hearings under their belt.”
The proposed rule allows law students to “practice” – including appearing in court under supervision – after completing one-third of their law school course requirements. About 15 other states have student practice rules similar to what is proposed.
More Hands-on Training
SCR Chapter 50 was originally adopted in 1975 and amended in 1977 but the rule has not changed since then. Mitch, a member of the Access to Justice Commission, says it’s time to modernize the rule and clarify when law students can begin “practicing.”
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Both U.W. Law School and Marquette University School of Law offer a wide array of clinical opportunities for law students to gain practical experience. Most of them start after a law student has completed the first year of law school.
Law students can perform many tasks, including meeting with clients and writing memos and briefs under a provision that says they can perform delegated acts “such as those customarily performed by law clerks in law offices before January 1, 1979.”
But law students cannot appear in court in the name of the supervising lawyer until after they have completed half their law school courses of study. That means law students cannot appear in court until after the fall semester of their second year of law school.
Law students can work on cases, but the supervising attorney must appear in court to argue motions or conduct trials for students who have not completed enough credits.
Allowing law students to appear in court earlier would give them more practical training, take burdens off supervising attorneys, and would give Wisconsin communities more law-trained advocates to assist low-income individuals, Mitch said.
He also said expanding the law student practice rule would not fill the state’s well documented justice gap for those with limited means, but it’s a step in the right direction.
U.W. Law School’s Neighborhood Law Clinic, one of 18 clinics, serves low-income individuals in housing, employment, and public benefits law. Mitch supervises a handful of students, who meet with people for one-hour consultations to understand the issues.
Law students meet with hundreds of individuals per year. The clinic will represent approximately 50 people and refer the others based on the clinic’s capacity and the complexity of the issues. Only law students with one-half of law school completed can appear in court, under supervision, otherwise the supervising attorney must appear.
Mitch and the Access to Justice Commission say the current rule creates an unnecessary delay for practical training, and many students are encouraged to seek clerkship positions at law firms or legal departments the summer after their second year.
In other words, law students participating in clinical programs should be able to appear in court, supervised, after their first year of law school because they will likely be seeking law firm and other employment clerkship opportunities after their second year.
The Access to Justice Commission (ATJC), which develops and encourages means of expanding access to the civil justice system for unrepresented, low-income residents, says the change will give those in need greater access to law-trained advocates.
The petition has support from numerous individuals and groups, including the State Bar of Wisconsin, the State Public Defender, Legal Action of Wisconsin, the Legal Aid Society of Milwaukee, and the judges of the Wisconsin Court of Appeals.
Another aspect of the proposal would allow law school graduates from all states “to practice in Wisconsin at government, nonprofit, or pro bono entities, under supervision for up to 12 months after their graduation while studying for the bar exam.”
Mitch said it can be difficult for legal aid, government, and nonprofit organizations to attract diverse candidates who have graduated from law schools outside of Wisconsin.
At the same time, the bar exam may create financial and other barriers for out-of-state law school graduates who wish to practice in Wisconsin.
Unlike in-state law graduates – who can practice law after graduation under the state’s diploma privilege – out-of-state graduates must pass the Wisconsin Bar Exam first.
“They would still have to practice under supervision,” Mitch said. “It doesn’t take away the diploma privilege as a major benefit for in-state graduates. But it does allow organizations to hire diverse talent to come here and get trained in Wisconsin law.”
“We hope that down the line, this will allow governments and nonprofits to employ more diverse candidates than what our law schools are able to admit,” Mitch said. “Eventually, the hope is that this expanded pipeline will lead to a more diverse bar.”
Dedee Peterson, executive director at Legal Action of Wisconsin, noted that the proposed rule will “expand and diversify the law students working in Wisconsin and ultimately incentivizes them to remain as attorneys, to the betterment of the bar.”
U.W. Law School Dean Daniel Tokaji noted, in a letter to the court, that the change “could serve as a magnet to students and recent graduates from other states, while avoiding the temptation for Wisconsin natives to move to other states where they might otherwise have greater opportunities to gain practical experience.”
The COVID Twist
Mitch said the proposed rule change comes as many states still struggle to navigate COVID-19. Last year, various states passed or tried to pass temporary diploma privilege and/or law student practice rules that would allow recent law school graduates to seek job placements and “practice” under supervision without taking the bar exam.
In many states, bar exams were suspended, delayed, or moved online. That meant law school graduates faced delays in using their law degrees to practice law.
“During COVID, you have a whole bunch of people who have a law degree who can’t provide access to justice. At the same time, you have many people who need employment help, who need housing help, who need family law help,” Mitch said.
“The exam is a good quality control measure, but we are also creating this disparity with a backlog of people who want to help and more people who need help.”
Mitch said clinics like the Neighborhood Law Clinic have experienced efficiencies with the pandemic, as more of the work moved online through videoconferencing and other online tools. But the pandemic also created new barriers for low-income individuals.
He said 90 percent of people seeking the clinic’s help do not have internet access or videoconferencing tools and can only “meet” by phone. They would normally meet in-person for the one-hour consultation and bring their documents with them.
“When you have clients like so many of ours who weren’t paid wages or don’t get their security deposit back, they don’t have their documents in PDF,” Mitch said.
“We have to say, ‘take photos of each page with your cell phone and text them.’ Half the time they are blurry and we can’t read them. That slows everything down.”
Changing the law student practice rule is just one proposed solution as the ATJC continues its mission to bridge the access to justice gap and Wisconsin’s legal community seeks more pipelines to diversify its legal talent pool.
“The proposed amendment would provide new law school graduates from throughout the country a pathway to practice law in Wisconsin that does not currently exist,” U.W. Law School’s Student Bar Association wrote in a letter to the state supreme court. The court will hold a public hearing on petition 20-04 on Jan. 14, 2021.
“These new graduates would have a positive impact on the Wisconsin economy,” the student bar association added. “Attorneys who begin their careers in Wisconsin are more likely to put down roots and embrace Wisconsin.”