RULE XX. LIMITED PARTICIPATION OF LAW STUDENTS IN TRIAL WORK
of the Court March 30, 1999, with dissents and concurrences.
RULE XX. LIMITED PARTICIPATION
OF LAW STUDENTS IN TRIAL WORK
Section 1. The bench
and the bar are primarily responsible for providing competent legal services
for all persons, including those unable to pay for these services. As one means
of providing assistance to clients unable to pay for such services and to encourage
law schools to provide clinical instruction in trial work of varying kinds,
the following rule is adopted.
Section 2. All activities
provided for and allowed to an eligible law student herein shall be limited
to law school sponsored and supervised programs on an individually selected
case basis approved, assigned, and controlled by the law school.
Section 3. Under such law school sponsored clinical instruction plan an eligible law student may appear in any court or before any administrative tribunal in this state on behalf of the state, any political subdivision thereof, or any indigent person or indigent community organization if the person on whose behalf the student is appearing has indicated in writing consent to that appearance and the supervising lawyer has also indicated in writing approval of that appearance, in the following matters: [amended, effective April 15, 1999]
* * *
In 1999 amendments to the rule, the Court repealed a prohibition on the representation of community organizations who are affiliated with national organizations. Affiliates of national organizations may now be represented, provided the other requirements for organizational representation have been met.
* * *
(a) Any civil matter where the law student does not charge a client for his services; however, the supervising attorney is entitled to be awarded attorney's fees and costs for the services rendered by the student attorney and supervising attorney in those cases where the awarding of attorney's fees and costs is provided by statute.
(b) Any criminal matter in which an indigent defendant does not have the right to the assignment of counsel under any constitutional provision, statute, or rule of this court. In such cases the supervising lawyer is not required to be personally present in court if the person on whose behalf an appearance is being made consents to his absence.
(c) Any criminal matter in which the defendant has the right to the assignment of counsel under any constitutional provision, statute, or rule of this court. In such cases the supervising lawyer must be personally present throughout the proceedings and shall be fully responsible for the manner in which they are conducted.
(d) An eligible law student may also appear in any criminal matter on behalf of the state with the written approval of the prosecuting attorney or his authorized representative and of the supervising lawyer.
(e) In each case the written consent and approval referred to above shall be filed in the record of the case and shall be brought to the attention of the judge of the court or the presiding officer of the administrative tribunal.
(f) The procurement and filing of written consent shall not be required when the indigent client is court appointed and unable to provide written consent or approval.
Section 4. Standard
for Determining Eligibility for Representation. Law school clinical program
staff and student practitioners who appear in a representative capacity pursuant
to this rule may represent any individual or family unit whose annual income
does not exceed 200% of the federal poverty guidelines established by the Department
of Health and Human Services. These guidelines need not be applied when the
client is court-appointed or court-referred and the appointing or referring
court has reviewed the economic condition of the client and has determined that
the client is indigent. [amended, effective April 15, 1999]
* * *
The Department of Health and Human Services annually updates the federal poverty guidelines. The 1999 federal poverty guidelines are published at 64 Federal Register No. 52, pp. 13428-13430 (March 18, 1999).
Pursuant to Rule XX amendments which became effective on July 1, 1998, law clinics were required to follow the Legal Services Corporation eligibility guidelines for determining whether a person was eligible for representation. The maximum annual income level for representation under the LSC guidelines is 125% of the federal poverty guidelines. However, the Legal Services Corporation regulations allow for exceptions for persons whose annual income does not exceed 150% of the LSC maximum (125% of poverty). The LSC exceptions, therefore, allow for the representation of persons whose annual income does not exceed 187.5% of poverty (150% of the LSC maximum annual income level (125% of poverty)), provided a sufficient showing of need is made.
Minor changes have been made for ease of administration of the rule. The Court has amended the eligibility requirements to simplify the financial screening which must be performed to determine if a person is eligible for representation. Clinics now need not find special reasons to represent persons whose income falls between 125% and 187.5% of the federal poverty guidelines, and may now represent any person whose annual income does not exceed 200% of the federal poverty guidelines. Thus, for example, an individual may be represented if his/her annual income does not exceed $16,480 (200% of $8,240); a four person family unit may be represented if their annual income does not exceed $33,400 (200% of $16,700); and a seven person family unit may be represented if their annual income does not exceed $50,320 (200% of $25,160). As noted, these income figures will change annually with the promulgation of new federal poverty guidelines.
* * *
Section 5. Representation of Indigent Community Organizations. Any indigent community organization that wishes to obtain representation pursuant to this rule must certify in writing to the inability to pay for legal services. The written certification shall be subject to inspection by the Supreme Court of Louisiana.
Law school clinical program staff and student practitioners who appear in a representative capacity pursuant to this rule may represent any indigent community organization provided at least 51% of the organization's members are eligible for legal assistance pursuant to Section 4 of this rule. The indigent community organization shall also provide information to clinic staff which shows that the organization lacks, and has no practical means of obtaining, funds to retain private counsel. [amended, effective April 15, 1999]
* * *
The Court deleted the word "financial" from the last sentence of this section merely to conform with a Legal Services Corporation regulation concerning the representation of organizations.
* * *
Section 6. In order
to make an appearance pursuant to this rule, the law student must;
(a) Be duly enrolled in this state in a law school approved by the American Bar Association;
(b) Have completed legal studies amounting to at least four fulltime semesters, or the equivalent if the school is on some basis other than a semester basis.
(c) Have completed the required law school coursework in legal ethics.
(d) Be certified by the dean of the student's law school as being of good moral character and competent legal ability, and as being adequately trained to perform as a legal intern.
(e) Be introduced to the court in which the student is appearing by an attorney admitted to practice in that court.
(f) Neither ask for nor receive any compensation or remuneration of any kind for his/her services; except that the supervising attorney may be awarded fees and costs as provided by Section 3(a); and any funds so generated shall be deposited into a special litigation expense account maintained by the clinical program for that purpose.
(g) Certify in writing that the law student has read and will abide by the Rules of Professional Conduct, will faithfully perform the duties of a law student practitioner, and will not place his/her personal interests or clinic interests ahead of the interests of the client. The written certification shall be filed with the clerk of this court.
(h) Shall take the following oath:
I,_______________, do solemnly swear that I will support the Constitution of the United States and of the State of Louisiana and have read and am familiar with the Rules of Professional Conduct of the Louisiana State Bar Association; I understand that I am bound by the precepts therein contained as fully as if I were admitted to the practice of law in Louisiana; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client; I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which I am charged; I further accept the privileges granted to me as well as the responsibilities which will devolve upon me, so that I may be more useful through my clinical education in the service of justice.
Section 7. The certification
of a student by the law school dean:
(a) Shall be filed with the clerk of this court and unless it is sooner withdrawn it shall remain in effect until the expiration of twelve months after it is filed or until the announcement of the results of the first bar examination following the student's graduation, whichever is earlier. For any student who passes that examination or who is admitted to the bar without taking an examination, the certification shall continue in effect until the date the student is admitted to the bar.
(b) May be withdrawn by the dean at any time by mailing a notice to that effect to the clerk of this court. It is not necessary that the notice state the cause for withdrawal.
(c) May be terminated by this court at any time without notice or hearing and without any showing of cause. Notice of the termination may be filed with the clerk of this court.
Section 8. In addition,
an eligible law student may engage in other activities under the said law school
program under the general supervision of a member of the bar of this court but
outside the personal presence of that lawyer including.
(a) Preparation of pleading and other documents to be filed in any matter in which the student is eligible to appear, but such pleadings or documents must be signed by the supervising lawyer.
(b) Preparation of briefs, abstracts, and other documents to be filed in appellate courts of this state, but such documents must be signed by the supervising lawyer.
(c) Each document or pleading must contain the name of the eligible law student who has participated in drafting it. If the student participated in drafting only a portion of it, that fact may be mentioned.
An eligible law student may participate
in oral argument in any appellate court of this state, but only in the presence
of the supervising lawyer
Section 9. The member of the bar under whose supervision an eligible law student does any of the things permitted by this rule shall.
(a) Be a lawyer admitted to practice before this court whose service as a supervising lawyer for this program is approved by the dean of the law school in which the law student is enrolled.
(b) Assume personal professional responsibility and liability for the student's guidance in any work undertaken and for supervising the quality of the student's work.
(c) Assist the student in his/her preparation to the extent the supervising lawyer considers it necessary.
(d) Counsel and assist the law student who practices law pursuant to this rule, and provide professional guidance in every phase of such practice, with special attention to matters of professional responsibility and legal ethics.
Section 10. Lawyer staffpersons of law school clinical programs and certified student practitioners shall adhere to the Rules of Professional Conduct, including the rules prohibiting solicitation of cases or clients. In addition, no student practitioner shall appear in a representative capacity pursuant to this rule if any clinical program supervising lawyer, staffperson, or student practitioner initiated in-person contact, or contact by mail, telephone or other communications medium, with an indigent person or indigent community organization for the purpose of representing the contacted person or organization. [Amended, effective April 15, 1999]
* * *
In the amendments to Rule XX which were promulgated on June 17, 1998, Section 10 included two principal components: (1) a prohibition on representing solicited clients pursuant to Rule XX; and (2) a ban on representation of indigent community organizations the law clinics helped form or create.
Subsequent to reviewing a request for reconsideration and a stay of the 1998 amendments, the Court, on June 30, 1998, suspended implementation of this section of the rule.
In 1999 amendments to the rule, the Court repealed the provision which had prohibited law clinics from representing, in a Rule XX capacity, community organizations they helped form or create. However, in furtherance of the Court's policy against solicitation of legal clients generally, the ethical prohibitions against attorney solicitation, and the Court's view that law students should not be encouraged to engage in the solicitation of cases, Section 10, as amended, prohibits a student practitioner from representing a client who has been the subject of targeted solicitation by any law clinic representative.
Section 10 places no restrictions on the pro bono representation of solicited clients by attorneys employed or retained by law schools or law clinics. Furthermore, this singular prohibition regarding the representation of solicited clients by student practitioners does not in any way restrict or prohibit law school clinical activities which are intended to provide education or information to Louisiana citizens.
* * *
Section 11. A law student
who practices law pursuant to the authority conferred by this rule must obtain
additional authority from the appropriate court or agency to practice before
courts and agencies of the federal government, and courts and agencies of other
states. The authority conferred by this rule shall also not be deemed to constitute
authority for student practitioners who act pursuant to this rule to make appearances
in a representative capacity before regular or special sessions of state or
federal legislatures. [Amended effective April 15, 1999]
Section 12. Nothing contained in this rule shall affect the right of any person who is not admitted to practice law to do anything that he/she might lawfully do prior to the adoption of this rule.