March 9, 2021 – The Wisconsin Supreme Court has approved a petition that gives law students earlier opportunities for practical, hands-on experience through a rule that lets law students represent clients under the supervision of an attorney.
Under the current law student practice rules (SCR Chapter 50), law students must finish one-half of law school before they can represent clients in court under supervision or give supervised legal advice. The rule was originally adopted in 1975.
The Wisconsin Access to Justice Commission filed a petition, requesting modifications to modernize and expand the rule to give law students practical experience earlier.
Effective July 1, 2021, law students can “practice” – including appearing in court under supervision – after completing “the first-year curriculum for a full-time student.”
For most law students, that means they can obtain supervised law practice experience through clinical programs starting the summer after their first year of law school. Under the current rule, they have to wait until halfway through their second year.
Mitch, a clinical law professor at U.W. Law School and director of the school’s civil legal clinics, said the old rule unnecessarily delayed clinical opportunities, and the 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.”
Both U.W. Law School and Marquette University Law School offer clinical education programs, including externships, practicums, supervised field placements, and other experienced-based programs that allow students to get practical training.
Mitch, a member of the Access to Justice Commission, was one of numerous individuals who spoke in support of the petition at a public hearing in January.
Amending the rule achieves two goals, proponents argued. First, it gives law students more training and experience. Second, it expands the pool of law-trained individuals available to help the state’s indigent and low-income individuals and families.
The Wisconsin Supreme Court approved the petition, with certain modifications, in a final order that repeals and recreates SCR Chapter 50 (effective July 1, 2021). The State Bar of Wisconsin supported the petition.
Recent Out-of-State Graduates Also Benefit
Another aspect of the new rule allows recent law school graduates 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.
Specifically, the new rule allows recent law school graduates to gain supervised practice experience through:
- a “qualified pro bono program,” as defined in SCR 31.01(12);
- a “nonprofit legal services organization that received funding from the Wisconsin Trust Account Foundation or the Legal Services Corporation;” or
- a “government agency which employs the supervising lawyer.”
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.”
Activities Authorized; Attorney Supervision
Under the new student practice rule, students can appear on behalf of a client or a governmental agency in any proceeding before a court, tribunal or public agency, negotiate on behalf of a client or a governmental agency with another person or entity, and counsel and give legal advice to a client or governmental agency.
The new rule still requires a supervising attorney to read, approve and personally sign pleadings or other papers prepared by the student prior to filing or for signing by another person, and the supervising attorney still assumes professional responsibility for any services performed or undertaken by the student while under the lawyer’s supervision.
The new rule clarifies the circumstances in which the supervising lawyer is not required to appear with the student in proceedings before a court, tribunal, or public agency.
The current rule says the supervising attorney’s presence is required “except for those times when very routine actions take place (including when representing one charged with a misdemeanor, such action as a request for continuance or a plea of not guilty on first appearance, but not including, when representing one charged with a felony, such actions as an arraignment or a bail argument) if the judge or other presiding officer and the client agree with the lawyer beforehand the lawyer's presence is unnecessary.”
Under the new rule, the supervising attorneys need not appear if: a) the lawyer's presence is not necessary; and b) if representing a client, the client gives informed consent, as specified in SCR 20:1.0(f); and c) the judge, panel of judges or presiding officer does not object to the student appearing without the supervising lawyer present.
The Wisconsin’s Supreme Court’s final order includes “certification” and other requirements, including caps on the number of students that may be supervised by one supervising attorney, depending on practice environment. Read the full order.