Suggested Amendments

ADMISSION AND PRACTICE RULES (APR)

Rule 9. Licensed Legal Interns

 

A.                Proponents:

 

University of Washington School of Law

Seattle University School of Law

Gonzaga University School of Law

Washington State Bar Association

 

B.                 Spokespersons:

 

Lisa Kelly, Bobbe and Jon Bridge Professor of Child Advocacy

Emeritus

University of Washington School of Law

 

Renata Garcia de Carvalho, Chief Regulatory Counsel

Washington State Bar Association

 

C.                Purpose:

 

The proponents propose an amendment to APR 9, Washington’s licensed legal intern rule, to permit law students in good academic standing who have completed one-third of the prescribed law school curriculum to be licensed as legal interns so long as they are under the supervision of a clinical law teacher. The purpose of this suggested amendment is to bring Washington in line with national law student practice norms as well as current trends in legal education, which support more practical training experience.

The proponents also propose suggested amendments to allow Master of Laws (LLM) graduates of American Bar Association (ABA) approved law schools who qualify to sit for the bar exam in Washington to be eligible for the Rule 9 license, to clarify possible action by the Washington State Bar Exam (WSBA) for licensed legal intern misconduct, and to update various terms throughout the rule to allow for electronic processing and handling of Rule 9 documents and procedures.

 

I.                    APR 9(b)(A) – Law School Clinic Eligibility

a.      Overview

 

The Washington State Bar Association and Washington State’s three law schools urge amending APR 9 to expand eligibility for Licensed Legal Intern status to those law students who have completed one-third of their law school curriculum and are enrolled in a clinical law course. The current rule confers eligibility only on those law students who have completed two-thirds of the curriculum. The proposed amendment maintains the two-thirds requirement for those law students who are in externships or employment arrangements. It also does not touch upon the current eligibility requirements for those in the law clerk program. This proposal will support the creation of a more logical and cohesive experiential law school curriculum that will better prepare students for the practice of law, align Washington State with national norms, help with the recruitment and retention of a more diverse student body, expand access to justice, assist in the administration of justice, and provide benefit to the bar and clients through more prepared graduates.

This amendment is supported by the Deans of all three law schools and was approved by the WSBA Board of Governors on July 16, 2021.

b.      Rationale in Support of Suggested Amendment to APR 9(b)(A)

 

                          i.            The Suggested Amendment is Consistent with Trends in Legal Education

Legal education has been on a slow but steady path of change in response to pressures from a wide range of constituencies including students, the bench, the bar, and broader society. Calls to recognize the profession’s exclusivity and the law’s effects on social justice, both for good and ill, have re-emerged and grown increasingly urgent. Law schools are called to admit, retain, and prepare a more diverse student body to enter an increasingly complex and demanding legal profession. In this context, it is critical that law students have a curriculum deliberately designed to ensure their success and readiness to enter the profession. APR 9, commonly known among educators as the Student Practice Rule, is a key element in that curriculum design.

The pressure on law schools to develop new pedagogies with clear learning objectives relevant to the practice of law has been building for a considerable amount of time. At least three influential reports in the past three decades have asked legal education to re-imagine itself. In 1992, the ABA’s Task Force on Law Schools and the Profession issued what is commonly referred to as the MacCrate Report, which enumerated and called upon law schools to address the fundamental professional skills and professional values necessary for competent, ethical representation.[1] The MacCrate Report emphasized the importance of clinical and other experiential learning opportunities.[2] In 2007, The Carnegie Report was published, exhorting law schools to rethink their curricula to be more in line with other professional schools providing students with opportunities to develop not only an intellectual understanding of the discipline at hand but also a professional identity attained through opportunities to practice.[3] Also in 2007, a group of law faculty issued Best Practices,[4] which sought to operationalize the concerns of both the MacCrate Report and the Carnegie Report by recommending a curriculum that would better prepare students for practice upon graduation.

The integration of experiential learning into the law school curriculum expanded in 2017 when the American Bar Association (ABA) amended its accreditation standards, requiring each student to take one or more experiential courses totaling at least 6 credit hours.[5] The pace of curriculum reform in legal education may be slow, but today’s law schools do provide more opportunities to learn lawyering skills than law schools of the pre-MacCrate Report era. All three of Washington’s law schools have well-established and robust clinical law programs. At the University of Washington, students can choose from among eleven different clinical offerings, staffed by 16 faculty.[6] Seattle University offers thirteen different clinical courses taught by 11 faculty.[7] Gonzaga law students have nine clinics from which to choose with 11 faculty at the helm.[8]

Not only do these clinics provide students with opportunities to practice under faculty supervision, but they also address a wide variety of unmet legal needs. Clinic clients are unable to afford private counsel and are often clients of color. The needs that arise give students the opportunity to engage with some of the most urgent issues of our time—the school-to-prison-pipeline, housing justice, immigration, civil rights, LGBTQ+ rights, and workers’ rights, to name just a few of the current offerings.

Clinical law programs offer students a balanced blend of substantive knowledge, practice opportunities, and reflection on both their individual performance and the law’s capacity to effectuate social justice. While clinical learning goals vary based upon the unique clinical offering, the typical clinic pedagogy—prepare, perform, and reflect—allows clinic students to practice law in slow motion.  The critical role of reflection teaches students the critical skill of how to learn from practice, a skill that is essential and transferable to all practice settings.

Clinic pedagogy has three distinct components—the classroom, the supervision session, and the work performed outside of the law school building. The classroom component allows students the space to come together to learn the skills and substantive knowledge necessary to work on their cases. Typical classroom exercises include roleplays of interviews, client counseling sessions, and mock hearings involving the real-life cases assigned. As the academic semester or quarter progresses, case rounds become a critical part of most clinic classrooms in which strategic and ethical issues are raised and solutions are brainstormed.

Supervision meetings are a critical part of clinical teaching. In most clinics, students work in teams of at least two, which also enables them to learn the important professional skills of collaboration and joint problem-solving. The professor meets with each clinical team on a weekly basis, sometimes more often when case needs demand it. Every step in a case is analyzed and prepared for—from the client interview to research of possible strategies, to the drafting of pleadings, through participation in any court proceedings.

Another salient tenet of clinical pedagogy is the commitment to student “case ownership.” This means that students are the main point of contact with clients and execute all the work required in any case for which they are responsible. Student case ownership is of course subject to meticulous faculty supervision. This means, for example, that the clinical professor will require a student to write multiple drafts of pleadings, briefs, even important emails, before permitting the correspondence or pleadings to leave the clinic office.

Clinics are not the only experiential educational offering that students have available to them. Externship programs also engage students in real-life practice while earning law school credit. Each of Washington’s three law schools have well-developed Externship programs which are managed by an Externship Director who helps facilitate students’ matching with an appropriate field placement. Externships generally have a seminar component staffed by law school faculty as well. Externship seminars address basic skills and professionalism, but the actual supervision of the student work is left to the attorneys in the field, who are carrying their own cases as well.

At the University of Washington, Seattle University, and Gonzaga University, databases containing hundreds of externship opportunities are maintained. While the type of placements involved vary tremendously, externships historically have fallen into one of the following categories: judicial; criminal prosecution; criminal defense; and a wide variety of nonprofits and government offices.

Externship placements may occur during the academic year or the summer. Students earn externship credits in either part-time or full-time externships; the latter allowing them the opportunity to become immersed in the professional life of the office to which they are assigned.

APR 9 determines when law students will begin to exercise their lawyering skills in the real world of state-court practice under the supervision of a qualified supervising lawyer. It allows the licensed legal intern to engage in most critical lawyering functions either with or without the presence of the supervising lawyer. The rule itself details the functions that can be performed and in what context, but in general the licensed legal intern can engage in interviewing, counseling, and negotiation without the presence of the supervising attorney, can draft pleadings and correspondence if also signed by the supervising attorney, and can appear without the attorney for the presentation of agreed and ex parte orders.[9] After “a reasonable period of in-court supervision” or supervised appearances in administrative hearings, a licensed intern can also appear without supervision for misdemeanor matters, for hearings before courts of limited jurisdiction, and can appear in administrative proceedings in which a nonlawyer representative is not permitted.[10] However, licensed legal interns may not conduct depositions or appear in superior court or the Washington Court of Appeals without the presence of a supervising lawyer.[11]

Washington’s current student practice rule only allows those law students who have completed the equivalent of the second year of law school to be recognized as licensed legal interns.[12] Given that most clinics are only offered during the academic year, this means that students who wish to gain experience in state court must wait until their third year of law school to work under the close supervision of a faculty member.

The suggested amendment would allow law students who have completed one-third of the law school curriculum and are enrolled in a clinical law course to be eligible to serve as licensed legal interns. This earlier, more heavily supervised practice experience is consistent with the overall trend in legal education to integrate practice with classroom learning after the doctrinal rigors of the first year.

The suggested amendment also makes for a more rational sequencing of experiential courses. As described above, clinics allow students the opportunity to practice law in slow motion with a focus on skill development and professional identity. By contrast, externships introduce law students to the often fast-paced real world of law practice where they often engage in high volume case work. Very few externship field supervisors who have their own caseloads have the time for role plays, mock hearings, or multiple drafts of documents characteristic of clinical practice. Research shows that externships provide fewer opportunities for students to discuss ethical issues than clinics do.[13] This discrepancy is likely due to the constraints of client confidentiality that inhibit discussions of specific case work in the externship seminar as well as the difference in role of the externship law office supervisor and a faculty member with clear teaching goals.  These same confidentiality concerns also restrict the ability of students to engage in reflection on what they are learning from their cases in the externship seminar.  Therefore, the foundational skill of learning from practice is not as easily developed in the externship seminar as it can be in the clinic seminar where students freely exchange the details of their cases with one another.

By allowing second-year students to engage in skill development and careful consideration of ethical issues under the close supervision of a clinical faculty member whose primary responsibility is teaching, students are provided a solid foundation as they move into the externship setting.  There they will be able to take the lessons of the clinic and apply them to a larger volume of cases and without the step-by-step instruction provided in the clinical professor.

In short, clinics and externships are both integral pieces of preparing students for practice. Maximizing the benefit to be gained from each requires a more deliberate sequencing that will be supported by the suggested amendment allowing second-year clinic students a limited license to practice law under APR 9.

                        ii.            The Suggested Amendment is Consistent with National Norms

If Washington were to amend APR 9 as suggested here, it would join the majority of states with student practice rules that allow law students a limited license prior to their third year of law school.[14]

States allowing students to practice during the second year vary in the specifics of their rules. A large number take the moderate approach suggested here and allow clinic students to practice sooner than non-clinical students who must wait until the third year.[15] Even more states allow all second-year students to practice, without reference to clinic enrollment.[16] Another large group of states use the halfway mark as the dividing line, allowing all students to practice in the middle of their second year.[17] A handful restrict all student practice to the clinical context, regardless of whether the student is a 2L or 3L student.[18]

The proponents of this suggested amendment advise against using the halfway point as the demarcating line here in Washington State. Many of the clinics offered in our law schools’ Clinical Programs are yearlong. Some clinics centered in state court practice have students enrolled for the entire academic year in order to provide them with the most satisfying and educationally beneficial clinical experience of seeing a case through from beginning to end. Therefore, making students Rule 9 eligible at the beginning of the year means the student will be able to see the case through from beginning to end. Clients also benefit from the continuity of representation when a student is able to remain on board throughout the life of the case. Making clinic students wait until they are halfway through their second year would thwart the underlying pedagogical purpose of this suggested change. In addition, the halfway mark would be particularly punitive for students at the University of Washington which operates on a quarter system. Requiring students to wait until they have met or exceeded the halfway point would result in the UW clinic students only being able to appear in cases for one eight-week period at the end of their second academic year.

The amendment suggested here strikes an appropriate balance among the approaches offered nationally. It is tailored to the particular needs of our state’s law schools and their students while also ensuring that clients receive quality legal representation from law students at all stages of their education.

 

                      iii.            The Suggested Amendment Yields Significant Ancillary Benefits

In addition to achieving the primary goal of better preparing law students for the practice of law, the suggested amendment will also result in several significant ancillary benefits. These benefits include: 1) providing law offices and clients with better prepared law students and law graduates; 2) increasing capacity to retain a truly diverse student body through early and strong clinical programming; 3) increasing access to justice in the state courts for the people of Washington state; and 4) improving the administration of justice by reducing the number of pro se litigants in Washington’s courts.

1. The Suggested Amendment Benefits the Bar and Clients by Better Preparing Graduates to Practice

The changing economics of a twenty-first century law practice has been among the strongest drivers for change in legal education.[19] Whether it is Big Law responding to client demand for more efficient and transparent service provision, small and solo practice firms needing to make their services more affordable, or public interest organizations responding to ever-increasing demand for their services, the practice of law feels the pressure to make every billable or trackable hour count.[20] Gone are the days of lengthy mentoring periods for new lawyers.

These pressures have led to calls for practice-ready law graduates.[21] Given that the practice of law is increasingly specialized and always changing, it is unrealistic to demand that each law graduate be fully practice-ready for all of the possible types of opportunities that exist.[22] However, allowing students to begin building their skills in the second year will provide the graduating law student with a better developed set of foundational lawyering skills and a stronger sense of professional identity.

The benefits of this expanded access rule would also extend to summer employment between the second and third year of law school. Those students with clinical experiences in state court practice in their 2L year will be that much more prepared to be effective contributors to the law offices that hire them. Ultimately, these benefits to future employers redound to the benefit of clients who will not only have more efficient junior counsel working on their matters but also will have more experienced, competent services rendered.

2. Addressing Retention of a Diverse Student Body through Early Student Engagement in Strong Clinical Programs

 

In the wake of the uprisings of 2020, the call for diversity, equity, and inclusion within legal institutions has grown increasingly louder. Washington General Rule 12.2 charges the Washington State Bar Association (WSBA) with the mission to “promote diversity and equality in the courts and in the legal profession.”[23] In furtherance of this goal, the WSBA has joined the Washington Race Equity & Justice Initiative,[24] which acknowledges that “[t]he effects of bias and structural racialization are especially damaging to the social fabric of our democracy when they are woven into the law, legal profession and justice system, where they can weaken the ability of these systems to safeguard equity and justice under the rule of law.”[25] The WSBA is committed to “change structures, policies, processes, and practices in the law, legal profession, and justice system that allow harm and disparate outcomes for Black, Indigenous, and communities of color to continue unabated.”[26]

Among the racialized harms and disparate outcomes that land right on the doorstep of law schools is the ongoing structural racism that excludes people of color from the profession itself. Structural racism embedded in legal education deters people of color from applying.[27] It keeps law schools from admitting people of color when they apply.[28] And it subsequently drives people of color out of the institution once they are admitted.[29] While the suggested amendment to APR 9 cannot address the problems surrounding admissions criteria and its impact on recruiting students of color is not well-studied, an amended APR 9 would contribute to creating learning environments early in the curriculum that support the retention of students of color.

Law students of color report that they lack a sense of belonging in law school.[30] These feelings of alienation and isolation are likely among the drivers for the high attrition rates experienced by Black, Indigenous, and Latinx law students. Certainly, achieving a critical mass of students of color through better recruitment and admission practices will go a long way towards creating learning environments that embrace all students. However, curriculum also matters in retaining students once they are admitted. Expanding Rule 9 clinical offerings to the second year has a significant impact on the law school curriculum.

A recent national survey of law students of color indicated that curricular offerings that acknowledge privilege and equity concerns can make a difference in the well-being and sense of belonging that students of color experience. Students of color reported a dearth of learning opportunities that allow them to “reflect on their own backgrounds, connecting these with ongoing racial tensions, gender equity, and broader social justice goals.”[31] There are many ways that law schools can address this need for change in every aspect of their curriculum. However, clinics are already meaningfully engaging in the type of teaching and learning that answers these needs. The small, collaborative environment of clinics is an ideal place for community building, critical thinking about privilege and equity, and learning through the dynamic teachable moments that practice provides.

Prior research has established the critical role that clinics play in student engagement and academic success.[32] Students who may have felt intimidated in the larger doctrinal classrooms often regain their confidence and sense of achievement in clinics.[33] Furthermore, students who participate in clinics are more likely than non-clinical students to receive feedback that nurtures their ongoing interest in the practice of law.[34] Allowing students access to clinics with Rule 9 practice opportunities sooner rather than later will support the well-being and academic success of all students.

3. The Suggested Amendment Will Expand Access to Justice

There is no shortage of unmet legal need in Washington.[35] The demand for legal assistance continues to expand and diversify. The longstanding vacuum in legal services for family law matters is well known, but more recently, unmet legal needs surrounding housing, health care, consumer credit, employment, and the collateral consequences of the criminal legal system are being recognized.[36] The Washington Supreme Court Task Force on Civil Legal Needs’ most recent report found that “[m]ore than three-quarters (76%) of those who have a legal problem do not get the help they need.” Most low-income people, particularly those who are the survivors of domestic violence or sexual assault, face not just one legal problem, but a complex web of legal challenges.[37] Clinical law programs provide representation to clients whose legal needs would otherwise not be met. Allowing 2Ls to practice in the state courts of Washington will augment the resources available to address this staggering need.

The exclusion of 2Ls from the student practice rule has shaped the clinical offerings that are available to students, which in turn has artificially constrained law schools’ full participation in educational programming that could help to improve access to justice. Due to the inability to involve 2Ls in state-court practice and the demand among 2Ls for clinical opportunities, the three law schools have looked to other types of clinical offerings that would allow 2L participation outside of state court proceedings. To the extent that state-court practice clinics are offered, they often are undersubscribed because students have opted for a 2L clinic experience and 3L externship. With the opening of the student practice rule to 2Ls, the ability to satisfy unmet legal needs in state courts will expand as clinical programs are freer to design a broader range of clinics to meet the 2L demand that will arise for them.

While it is true that clinic student caseloads are deliberately small, the typical approach with each client is very thorough, which often leads to uncovering and addressing the multiple legal needs that the client faces. In this way, clinics are ideally situated to provide holistic and effective representation for those most in need.

Research has shown that students who participate in clinics are oriented towards valuing public service in their future legal careers.[38] Therefore, clinics also contribute by familiarizing the state’s future bar with the importance of meaningful pro bono representation, thereby expanding access to justice for low-income people into the years to come.

Expanding clinical opportunities to include second-year students creates an access to justice multiplier effect that goes far beyond the services provided by individual students in current clinics. By amending APR 9 as suggested here, new clinics addressing unmet legal needs in state court can be envisioned and, in turn, those students who participate will be prepared and incentivized to assist in pro bono work as they enter into the profession.

4. The Suggested Amendment Will Assist in the Administration of Justice

To the extent that access to justice is improved, the administration of justice is improved as well. As acknowledged by the policies underlying the Superior Court Statistical Reporting Manual, “[p]ro se litigants … place an additional workload on judicial and clerical resources because of their limited familiarity with legal issues and the court environment.”[39]

These sentiments are consistent with an ABA Coalition for Justice survey of judges on the impact of pro se litigants in the courts.[40] Not surprisingly, 86% of the respondents felt that courts would be more efficient if all parties were represented.[41] The impact on the administration of justice goes beyond merely slowing down processes as pro se litigants struggle to find their way through a foreign system. Having unrepresented parties affects the quality of justice itself. Judges also expressed concerns that pro se litigation decreased the likelihood of a fair representation of the facts and compromised the impartiality of the court as it sought to aid pro se litigants in the interests of avoiding injustice.[42]

Amending APR 9 to expand clinical law student access to the state courts is an important step towards decreasing the overall rate of pro se appearances, which will benefit not only the litigants themselves but the courts as well.

                      iv.            Rationale for Specific Language in the Suggested Amendment

The current APR 9 provision requires the law student to have “successfully completed not less than two-thirds of a prescribed three-year course of study or five-eighths of a prescribed 4-year course of study.” The proponents of this suggested change believe that the reference to a 4-year course of study was intended to reference Seattle University’s part-time law school program, which itself has evolved over time.

The proponents have simplified the reference to the law school curriculum by eliminating the three-year versus four-year distinction, instead referencing only that the student must have completed one-third of the prescribed law school curriculum if enrolled in a clinic or two-thirds if not. This choice was made in order to be inclusive of all of the varieties of law school curriculum that have arisen or may arise in the future. For example, since this rule was established Gonzaga University has both a part-time program and the “3+3 Program,” which prescribes specific pathways for students to earn their undergraduate and law degrees in six years instead of seven.”[43] Given the possibility for these and other unanticipated innovations in legal education in the future, the proponents believe that the suggested amendment will allow for maximum flexibility while maintaining the structure that adheres closely to the more common 3-year full-time student trajectory.

c.       APR 9(b)(4) – APR 6 Eligibility 

Law students and law clerks are eligible for rule 9 licensure upon partial completion of their course of study. Law students, in addition to being eligible to apply while attending law school, are also eligible to apply within nine months of graduation. This flexibility is not afforded to law clerks who are currently only eligible to apply while in the program and not upon completion. The proposed amendment is intended to address this discrepancy by allowing individuals who have completed the APR 6 law clerk program to qualify for the rule 9 license.  Generally, most law clerks are licensed under APR 9 during the course of the law clerk program.  However, if a clerk does not for some reason, the clerk should have the same opportunity to apply after completing the program as would a J.D. graduate from a law school. 

d.      APR 9(b)(5) – LL.M. Graduate Eligibility

This amendment would allow certain LLM graduates of ABA approved law schools to qualify for the rule 9 license.  Currently, under APR 3(b)(4), J.D. graduates of non-ABA law schools and graduates of foreign law schools can qualify for the bar exam if they earn an LLM from an ABA approved law school, but they are not eligible for a rule 9 license. This amendment is intended to address this discrepancy and increase equitability of the rule 9 license. In the past few years, the WSBA has received inquiries from some LLM graduates who would like to have a rule 9 license while they are in the exam and admission process.  These LLM graduates who are intending to practice law in Washington and who qualify for the bar exam in Washington should be afforded the same opportunity to gain practical experience prior to entering the profession just as J.D. graduates would.

e.       APR 9(d) – Application

This proposal is related to misconduct by a licensed legal intern.  The proposed amendments would clarify and broaden the conduct that could result in the Bar taking action on the rule 9 license.  In addition, it removes the language about forfeiture of the privilege to take the bar exam, as that privilege can only be denied by the Supreme Court.

f.       APR 9(h) – Term of Limited License

The suggested amendment to increase the maximum period of the Rule 9 license follows from the suggestion to begin the license 12 months earlier under the law clinic proposal.  This would allow those law students who receive a Rule 9 license in their second year to be able to have a sufficient license period after graduating while awaiting bar exam results and admission to practice.  APR 9(h) limits the validity of the license to no later than 18 months after graduation which will prevent law students who receive the Rule 9 license late in law school from having the license for an unreasonable length of time after graduation.

g.      Technical Amendments and Modernization

There are several suggested amendments that are technical in nature or serve to update the procedural rules regarding administration of the of the application and licensing processes in APR 9.  These amendments would allow for electronic delivery and other alternative methods of handling the administrative procedures rather than through the use of physical documents or “snail” mail.

D.                Hearing:

 

The proponents do not believe that a public hearing is necessary.

 

E.                 Expedited Consideration:

 

The proponents do not believe that exceptional circumstances exist to justify an expedited consideration of the proposed change.

 

F.                 Supporting Materials:

 

1.      Suggested Amendments to APR 9 (Blackline)

2.      Suggested Amendment to APR 9 (Clean Draft)

3.      Joint letter from Washington law school deans dated May 3, 2021

4.      Letter from University of Washington School of Law leadership team dated May 5, 2021

5.      Letter from University of Washington School of Law Externship Program Director dated September 24, 2021

6.      Letter from Seattle University School of Law Externship Director dated September 24, 2021

7.      Order dated May 15, 2020, temporarily amending Admission and Practice Rules