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1 PRACTICAL WISDOM for a degree in Practicing Professionalism in Legal Externships Externship Orientation May 20, 2013

2 Purpose of Legal Externships Learning to put to practice skills you’ve learned in the classroom, such as legal research & writing. Learning new areas of law that you are interested in. Learning how to become a legal professional.

3 Understanding the legal rules that apply to the practice of law = Rules of Professional Conduct. Understanding supervisor/supervisee roles = Getting the most our of your externship. Understanding power imbalances inherent in these relationships = Creating your professional image and ensuring safety.

4 Externship Orientation: Ethical Issues in Externship Prof. Sarah Deer Getting the Most Out of Your Experience: Being a Good Supervisee & a Professional Melissa Wright, Externship Director Eric Johnson, St. Croix County District Attorney Jean Backes, Administrative Coordinator, Clinics & Externships Safety & Setting Boundaries Between Students & Field Supervisors Kathy Connolly, LCSW Mary Gale, VP Human Resources

5 PRACTICAL WISDOM for a degree in Ethical Issues in Legal Externships Professor Sarah Deer

6 Overview of Ethical Rules Minnesota attorneys are governed by the Minnesota Rules of Professional Conduct Official rules are available free online at

7 Important Ethical Issues ISSUERULE(S) Confidentiality1.6 Conflicts of Interest1.7, 1.8, 1.9 Communication with parties4.2, 4.3

8 CONFIDENTIALITY: General Default Rule 1.6(a) Lawyer shall not reveal any information relating to the representation of a client.

9 Confidentiality: What has to be protected? All information related to the matter, except what is “generally known” Personal information that the client would not want disclosed Information learned from the client as well as other sources Information acquired before representation begins and after representation ends Notes/memoranda that lawyer creates relating to the matter

10 Exceptions to Confidentiality 1.6(a) Informed consent Impliedly authorized Everything in 1.6(b) – but note that these are permissive exceptions, not mandatory As an extern, we recommend that you seek permission before proceeding under an exception.

11 Examples of 1.6 Exceptions: Proceed with Caution! Prevent reasonably certain death or substantial bodily injury Prevent client from committing crime or fraud To secure legal advise about the lawyer’s compliance with Rules (any rule)

12 Rule 1.6 Confidentiality Exceptions in Orange/Red Reasonably certain death or substantial bodily harm Intent to commit fraud causing substantial financial harm using your services Self-defense (fee dispute, malpractice) Required to be disclosed by court order Information needed to obtain legal ethics advice Client authorization: Express or Implied Everything related to representation (regardless of source) Prevent/mitigate financial harm if client used your services

13 Talking to friends and family Rule 1.6 does not make exceptions for friends and family. A literal reading of the rule might suggest that you should not discuss your externship work at all. If in doubt, keep confidential.

14 PrivilegeConfidentiality SourceExclusionary rule of evidence law Rule of Professional Conduct Kind of information covered Only confidential communications between attorney and client Communications covered by privilege PLUS any other information, no matter what the source Disclosure v. Use Prevents government from compelling disclosure Prohibits lawyer from disclosing without consent or using information to the disadvantage of past, present, future clients

15 If Communication is Privileged… Lawyer can’t be forced to testify -Lawyer may not testify over client’s objection Client can’t be forced to testify -Client may waive the privilege even if lawyer objects Paper and electronic records are also protected

16 Scenario 1 After spending a full day at her externship placement, Sue arrived at Mitchell to attend an evening class. She stopped to greet Tony, a friend and classmate who was working at the security desk. Sue tells Tony that she spent most of her day observing witness preparation with her field supervisor at the City Attorney’s Office. Sue explains that the case was on the front page of the Star Tribune not long ago which detailed the story of a highly ranked St. Paul police officer who allegedly beat up a young, unarmed Asian man during an arrest. Sue goes on to tell Tony that she learned today that the police officer, whose name was withheld in the news story, is also Asian. Sue continues to inform Tony that the police officer and the teen-ager were related and their families have a history of bitter rivalry and infighting.

17 Scenario 2 Jenny is having dinner at Chipotle on Grand and Victoria with Sam, her housemate and classmate. Jenny is two weeks into her new externship at an estate planning law firm in St. Paul. During their dinner, Sam asks Jenny how her externship at Dell & Associates is going. Jenny tells Sam that the law firm does estate planning for many well-known people in the Twin Cities. Jenny continues on that the law firm just hit a major jackpot with new clients who are the parents of the catcher on the Minnesota Twins.

18 Goals of Conflicts Rules 1.Conflicts can create an unacceptable risk that the lawyer will fail in duty of loyalty and/or confidentiality. 2. Trust and confidence of clients may be lost or diluted if they feel their position is threatened. (In other words, there is no assumption that a conflict WILL ALWAYS harm the client)

19 Types of conflicts 1.Conflicts between two of lawyer’s clients 2.Third party attempts to interfere in the relationship between attorney and client 3.Lawyer has a personal interest that is in conflict with the interests of the clients

20 Types of conflicts CONCURRENT CONFLICT Two present clients OR One present client and one prospective client SUCCESSIVE CONFLICT One present or prospective client AND One former client

21 Difference between 1.7 and 1.9 Present clients – 1.7 Representation may be problematic regardless of the subject matter of the two representations Former clients – 1.9 Representation may raise a problem only if there is a “substantial relationship” between the work done for the former client and the new matter.

22 Rule 1.7(a) Conflict of Interest – Current clients DEFAULT RULE A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if (either of these): –Representation of one client will be directly adverse to another client OR –Significant risk that the representation of one or more clients will be materially limited by lawyer’s responsibilities to another client

23 Rule 1.9(a) Duties to former clients A lawyer who has formerly represented a client in a matter shall not thereafter –represent another person in the same or a substantially related matter [and] –In which that person’s interests are materially adverse to the interests of the former client UNLESS the former client gives informed consent in writing.

24 Rule 1.10 While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.

25 Scenario 3 Ryan is selected to work on the Innocent Project next month through MJF. The work will involve reviewing court documents relating to convictions to determine if there are cases that should be reviewed further due to advancements in technology. The case review is to determine if there are convictions that could be overturned. His current externship placement is at the Hennepin County Attorney’s Office in the Criminal Division.

26 Scenario 4 Patti just received an externship offer from a law department at a medical device company in the Twin Cities. After graduation, she will be starting as an associate at a Minneapolis law firm that is well-known nationwide for its expertise in plaintiff’s product liability work.

27 Rule 4.2 Communication with persons represented by counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter. Unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Comment 3: A lawyer must immediately terminate communication with a person if they learn that the person is represented in the matter.

28 Rule 4.3, Sentence 1 Dealing with unrepresented persons In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.

29 Rule 4.3, Sentence 2 Dealing with unrepresented persons When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

30 Getting the Most Out of Your Experience: Being a Good Supervisee & a Professional Melissa Wright, Externship Director Eric Johnson, St. Croix County District Attorney Jean Backes, Administrative Coordinator, Clinics & Externships

31 Interacting with Supervisors Assignment Clarification: What do you need to know about a project to increase the chance you will produce what the supervisor wants?

32 Assignment Clarification Deadline Jurisdiction What should be the final product? How does this project fit into the larger picture of what the attorney is working on? Who is my audience– will anyone else read what I give you?

33 Assignment Clarification cont. How will you use the information I gather? Do you already have a similar product or format that I could use? Are there specific resources you suggest I start with? Is there anyone with expertise in this area who I should talk to? Memorialize in a short email what you understand is your assignment.

34 Assignment Clarification cont. Student: She looks too busy to be bothered and I don’t want to reveal that I have no experience on this subject by asking questions. Problem: Student will spend her time and resources on something that does not meet the attorney’s purpose. Time wasted by both parties.

35 Assignment Clarification Ask for a few minutes to discuss - show that it’s in the attorney’s interest to do so. Example: I would appreciate having a few minutes to discuss the assignment you gave me so that I can make sure I produce what would be most helpful to you.

36 Starting Assignments Start with a Project Plan What are the issues or problems I’m trying to solve? What resources should I start with? Look for sources outside case law & statutes: think outside the box. Policy, mission, client being served.

37 Why might supervisors not explain? Attorney not thinking about the difference between a law student and experienced attorney. Lack of time. Know something so well that she doesn’t realize others are not familiar or have level of knowledge. May not know what she wants! By asking questions, you may be refining and developing what needs to be done.

38 Asking for Feedback Demand to be supervised. Comments do not make sense or you do not receive anything except a cryptic- good job. Remind supervisor you set out specific learning goals to learn how to ______, and you would like to ensure you can accomplish your goal.

39 Asking for feedback cont. Example: I would appreciate knowing why you eliminated the two cases and analysis from Iowa. It would help me understand your reasoning so that I know what to do next time.

40 Concluding your externship Wrap up all unfinished projects with a memo to the file to update your work and what needs to be finished. Contact attorneys and other supervisors you’ve worked with to let them know your last day of externship, if applicable, progress report on projects. If you have multiple projects to finish, ask supervisor which one to prioritize and finish.

41 Concluding your externship cont. Check with supervisor about use of product as writing sample. Ask your supervisor, other attorneys and managers if they are willing to be your references. Continue to touch basis with anyone you would like to maintain in your network.

42 Maintain your connections Periodically ask for short meetings/coffee. Provide updates on what you are doing. Follow up on advice attorneys gave you and let them know you did so and the outcome.

43 Looking and behaving like a professional Dress appropriately for the legal office, when in doubt, dress conservatively. Reality of the legal profession: women’s clothing matters more than men’s clothing. Women need to watch the neckline and hemline. Avoid wearing strong perfume and cologne.

44 Being a legal professional Respectful and courteous to all members of the office. Do not ask anyone to do work for you unless you first cleared it with your supervisor. If possible, have a schedule that is easy for the members of the office to remember: Mon-Tues-Wed.

45 Being a Professional Set your hours with supervisor and stick with it. Be on time, if something unexpected comes up, notify your supervisor.

46 Student Attorney Practice Certification Restrictions on law practice by students. Students need authorization to appear in court Minnesota Rule 1.03 of the Student Practice Rules. Applies to students working for a government agency or appearing on behalf of an indigent client. It does not apply to students working at private law firms representing clients for a fee.

47 Student Attorney Practice Certification cont. Students who work for private firms that contract to act on behalf of a government agency may be certified. For example, a firm that contracts to do public defender cases may ask that a student be certified to represent those clients.

48 Student Attorney Practice Certification cont. WMCL Procedure: Your placement must make a written request to Mitchell after you are selected for the placement. Procedure is set out in the Legal Practice Center’s Website: center/externships/student-attorney-practice-certification/ center/externships/student-attorney-practice-certification/ Students should also read and understand Minnesota’s Student Practice Rules: r&subtype=stud&id=1 r&subtype=stud&id=1

49 Student Attorney Certification To be eligible a student must be: Currently enrolled; Have completed at least two semesters of full-time study (22 credits);and Be in good academic standing (2.0 G.P.A). The rule also states that you must identify yourself as a student and be accepted by the client.

50 Student Attorney Practice Certification Your supervisor must send a letter (there is no form) to: William Mitchell Law Clinic Attn: Jean Backes Administrative Coordinator for Clinics and Externships 875 Summit Avenue St. Paul, MN 55105 Fax: 651- 290-6407 E-mail requests are not accepted From the time the letter is received, the process generally takes ten business days. Your employer is notified by mail that the certification has been approved. You will be notified by e-mail with employer’s attached letter. Template letter available upon request, contact Jean Backes.

51 Student Attorney Certification in Other States Quickest method is to contact the state’s supreme court, attorney registration, and ask about the process for student attorney practice certification. Generally speaking, you will need to ask Dan Thompson, Dean of Students, to write a letter to state you are enrolled at Mitchell, in good standing, and completed the requisite number of credits.

52 PRACTICAL WISDOM for a degree in Safety & Setting Boundaries Between Students & Field Supervisors Kathy Connolly, LICSW

53 PRACTICAL WISDOM for a degree in Assumptions: You will encounter uncomfortable situations at some time in your professional career. How you handle it is up to you but you do have the responsibility to handle it – even as a student. Be prepared by being thoughtful about the potential. Friendly and sociable does not mean Friends

54 PRACTICAL WISDOM for a degree in Power Differential Supervisory relationships have Power Differential. -In a relationship where there is a Power Differential one has more power, control or influence over another. The one with the most power can see themselves as having more command or clout in the relationship, and more voice in the working of that relationship.

55 PRACTICAL WISDOM for a degree in Different Kinds of Power Expert Knowledge Legitimate Power Coercive Power Professional-Positional-Role Power Reward Power Referent Power Manipulative Power

56 PRACTICAL WISDOM for a degree in Power Differential has much value in supervisory relationships. When used wisely and appropriately it creates a safe boundary and professional context for growth and learning.

57 PRACTICAL WISDOM for a degree in What’s True? Both parties are responsible for the quality and integrity of the relationship BUT the one with more power has more responsibility. Many supervisors downplay their power and might act as if they are “equal”. Regardless of how they act, if they are in that role, ultimately they have the power to influence, make decisions

58 PRACTICAL WISDOM for a degree in Boundaries The goal is to maintain the relationship at an appropriate professional level Professional boundaries define effective and appropriate interaction. It protects Both people. Both people are responsible for them. Setting boundaries include stating limits and expectations, maintaining consistency, respecting structure of relationship

59 PRACTICAL WISDOM for a degree in Boundary Challenges: It can happen to you. No one sets out to violate boundaries BUT it can happen even to those who are dedicated, moral, and well intentioned supervisors who are highly respected and highly responsible in their overall conduct. Most believe it won’t happen to them and if it does that they can handle it. Not just sexual – over sharing, intrusiveness Happens to men and women

60 PRACTICAL WISDOM for a degree in Why these situations are challenging: Power differential Normal emotional reaction is to feel confused, ashamed, worried about consequences, uncertain if you perceiving situation accurately so difficulty trusting self, concerned about your reputation and future job potential. If it feels secretive in any way it is an important signal there is a potential problem.

61 PRACTICAL WISDOM for a degree in Being realistic and proactive- How to take care of yourself: You have personal power – even though you are a student and don’t feel like you have any! Even when you know yourself you don’t know what the other person might do Personal power comes from – –Knowing yourself –Behaving like a Professional, including dress –Having self care skills

62 PRACTICAL WISDOM for a degree in Setting Boundaries is a positive and professional action. -Have a script that is positive, polite and firm that you can use: “I'm uncomfortable with that….joke, behavior, request.”. OR “No, Thank you.” -Have a trusted ally, friend, mentor to get a reality check -Know the reporting policy of the organization and school -Discuss your concerns with someone who can help: WMCL, Counseling Services, LCL

63 PRACTICAL WISDOM for a degree in Examples: Job shadowing Invitation for dinner to discuss cases Small firm boss who wants to be friends Reputation of attorney at County Court Two different judges were subtly approaching students Uncomfortable requests

64 PRACTICAL WISDOM for a degree in Barriers to reporting Fearful of ramifications to reputation, ashamed, afraid of job loss. Know that every effort is made to protect your identity. Assume confidentiality at school and often in the organization.

65 PRACTICAL WISDOM for a degree in Social Media Texting for business not same as personal LinkedIn Be Careful of too Much Information Sharing. Twitter – Follow firms but not supervisors Facebook – –Don’t friend supervisors –Consider 2 Facebook pages, one for professional use –Adding co-intern?

66 PRACTICAL WISDOM for a degree in Mitchell’s Student Policies Mary Gale, VP Human Resources

67 What should you do If you feel safe (you are not required to do this): communicate to your offender and inform him/her that you expect the behavior to stop. If you choose this route we still encourage you to inform William Mitchell. If you chose to report and/or if the behavior is repeated please immediately report it to the person(s) listed on the next slide.

68 Reporting Options –Dan Thompson, VP of Student Affairs and Title IX Coordinator –Human Resources (Mary Gale) –Associate Dean (Mary Pat Byrn or Mehmet Konar-Steenberg, Simon Canick) –President & Dean (Eric Janus)

69 College’s commitment to you We strive to provide a learning environment that maximizes the potential of each student. Take all complaints seriously. Conduct timely and appropriate fact-finding. Retaliation will not be tolerated. Enforce policies.

70 Fact-finder Dean or Dean’s designee –This may include an employee(s) of the college or an outside consultant retained by the college, or –A combination of the above.

71 Confidentiality Concerns are handled discreetly. Confidentiality protected to the extent possible. –Information is limited to those with need to know. –We cannot guarantee confidentiality.

72 Post fact-finding communication Decision is communicated to alleged complainant and respondent.

73 Policy & Resources May be found on the student web: students-office/title-ix/

74 QUESTIONS If you have questions about any of the topics covered in these presentations, please contact: Melissa Wright 290-6369 Room 159

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