By Rena Steinzor and Robert Kuehn. Professor Steinzor is the former director of the University of Maryland Environmental Law Clinic and is now president of the Center for Progressive Reform. Professor Kuehn was the director of the Tulane Environmental Law Clinic when it first came under attack in 1998 and is now president of the Clinical Legal Education Association.
As any American who has read To Kill a Mockingbird should know, attacking lawyers for representing unpopular clients threatens the heart of an American justice system already weakened to the verge of collapse by the defunding of public defenders and legal aid. The right-wing tirade against the "treasonous" lawyers who represent Guantanamo prisoners was a huge shove in a bad direction. Less sensational, but at least as damaging, are a rising tide of attacks on law school clinics by those powerful interests affronted by law clinic opponents' access to pro bono assistance in any form.
Liz Cheney's misstep on terrorist lawyers was swatted to oblivion in the blogosphere, ultimately condemned by lawyers across the political spectrum. Too often, the clinics stand vulnerable and alone, leaving their young lawyers-in-training to take intolerable lessons about the limited availability of American justice. As The New York Times reported on Sunday, such attacks are as harsh as Cheney's: "We're going to tell legislators all over the state, if [the Tulane University environmental law clinic] want[s] to play hardball by trying to kneecap industry in Baton Rouge," said the Louisiana Chemical Association president Dan Borné, "then we should play hardball and kneecap them [Tulane University] with their state appropriations." Having gone through the wringer once in 1998 when elected judges supported by the chemical industry set sharp limits on the kinds of clients student attorneys could represent in court, the latest round of abuse includes a pending bill in the state senate that would block any university that receives states funds from suing government agencies, businesses or individuals or raising most constitutional challenges unless exempted in the legislation.
In Michigan, student attorneys in an innocence clinic were recently threatened with a subpoena to testify against their client in a criminal case; the case against the client was ultimately dropped. And in New Jersey, a real estate developer is trying to use the state's open records law to force a Rutgers clinic to turn over its case files for a community group opposing the developer. A survey of 300 faculty members at law school clinics across the country found that nearly 10 percent said they have been urged by their school's dean to avoid a particular case, and nearly 15 percent reported similar advice from their clinic's director.
This week, a remarkable national, state, and local campaign turned the tide in Maryland, where the University of Maryland environmental law clinic came under fire in the state legislature for bringing a lawsuit on behalf of grassroots waterkeepers against Perdue Farms, the sixth largest poultry producer in the country, and one of its contract farms. The amendment crafted by legislators supporting Perdue would have conditioned $750,000 in funding for the law school on the receipt of a report satisfactory to the legislature disclosing the sources and amounts of expenditures made by all of its laws clinic on behalf of their clients before, during, and after cases are filed in court going back for five years.
The poultry industry is unique among American manufacturers because it shifts responsibility for the management of manure to small, marginally-profitable farmers, who receive chicks, raise them, and then return them to the companies for processing. Nutrient pollution, including pollution from farms, is the number one threat to the ecological integrity of the Chesapeake Bay, the natural resource at the heart of Maryland's economy.
Letters from the American Bar Association, 450 law school faculty members and over 50 deans, the Clinical Legal Education Association, Society of American Law Teachers, American Association of Law Schools, and University of Maryland alumni, students, and faculty deluged the state legislature, which withdrew the amendment and instead inserted language requiring a report on "non-privileged" expenditures made by the environmental clinic over two years. Observers of the state's political scene doubt that the attack will recur in future years. The active engagement of the practicing bar both at the state and national levels was essential to this result.
Few issues are more important to the legal profession than the lesson taught by Atticus Finch: lawyers who do not defend access to justice for those shunned by society's most powerful interests betray the profession's reason to exist. Nothing is more important than reiterating this sacred trust for the law's next generation.
[image via a1.vox.com]