Michigan Supreme Court Justices to consider allowing law students to address appellate court Markman, Young have concerns about wisdom of proposed rule change

By John Minnis Legal News Recently appointed Justice Alton T. Davis will make his first public appearance during an administrative hearing Sept. 15. "I know that my fellow justices and the Supreme Court staff join me in welcoming our new colleague," Chief Justice Marilyn Kelly said. "Justice Davis has joined the court as we begin a new term and a new chapter in our court's history. We are glad to have this experienced jurist with us and look forward to working together." Kelly noted that Justice Elizabeth Weaver, who stepped down on Aug. 26, served on the court for 16 years. "I wish her well as she embarks on a new phase in her life," Kelly said. "Betty Weaver can now enjoy her retirement in the northern Michigan she loves so deeply." The administrative hearing may be testy as the court considers whether to allow law students to argue on behalf of indigent clients before the Michigan Court of Appeals. Justices Stephen J. Markman and Robert P. Young Jr. have raised written objections to the proposed rule change. Currently, students, under the supervision of a licensed attorney (usually a faculty member) may argue before the lower courts but not before the state Supreme Court and the Court of Appeals. If proposed administrative order 2009-25 is approved, students could appear before the appellate court but not the state's high court. According to Judge Elizabeth L. Gleicher, chair of the Court of Appeals Rules Committee, a "majority of the appellate judges are favorably inclined" to the rule change. "If the Supreme Court adopts a rule that addresses argument by law students at the Court of Appeals," Gleicher wrote, "the judges of this court ask that the amendment include a two-year sunset provision. The judges do not oppose the proposed amendment, but a majority prefers that such a rule not continue beyond two years without consideration whether, during the two-year period, its benefits outweighed any potential drawbacks." The proposal would allow a law student or recent law school graduate to participate in Court of Appeals oral arguments if he or she is a member of a legal aid clinic that serves indigent people. The student or graduate could only argue the case with the permission of a majority of the Court of Appeals panel that is hearing the case. The rule change, which originated with the University of Michigan Law School, would expand current rules allowing legal aid clinic students and recent law graduates to appear before trial courts. Justice Markman opposes the rule change on many grounds. "An ongoing responsibility of this court by its supervision of the Michigan State Bar, the Attorney Grievance Commission and the Attorney Discipline Board, as well as by its final appellate review of the decisions of all other courts in this state," Markman said in his written comments, "is to enhance the quality of legal representation. I do not believe that extending authority to law students to argue before our second-highest court carries out this responsibility. Rather, I believe this achieves the opposite result. It is not to disparage the outstanding law schools of Michigan, or the caliber of their students, to observe that law students have not yet completed their education or learned their profession, they have not yet been judged competent to practice law through the examination process of our state, they have not yet undertaken an oath promising to comply with standards of conduct of the legal profession, and they have garnered none of the experience and perspective that, with very few exceptions, characterizes lawyers who are participants in our appellate process." Markman itemized eight specific objections: 1) The proposed rule changes delegate Michigan's standards of professional competency and character for lawyers from the elected justices of the Supreme Court to public and private law schools. 2) The requirement that "a majority of the panel of judges to which the case is assigned" must first approve the student's representation is "meaningless." "Would such judge(s) be expected to review the student's grades, or consult with his or her professors, or scrutinize the student's LSAT scores? Unlike in the case of a member of the bar, there would be no background investigations available, no character assessments, no disciplinary histories, no previous court appearances, and no private sources of evaluation, such as Martindale-Hubbell ratings." 3) The indigent clients of the law students would be "guinea pigs" in an experiment allowing non-lawyers to participate in a process in which there is the greatest need for trained and experienced lawyers. 4) Law student representation may provide grounds for criminal appellants to raise claims of constitutionally ineffective assistance of counsel, regardless of the validity of such arguments. 5) Standards for law student participation in the appellate process that rely upon student grades, as do the proposed amendments, risk intruding the justices of in scrutinizing the grading process and "incentivizing" more lenient grading standards in order not to deprive students of their eligibility to participate in appellate arguments. 6) The premise of current rules pertaining to law student participation in "legal aid clinics, defender offices and legal training programs" is that as potential penalties increase, the amount of supervision should increase and in the most serious cases an actual lawyer should be present. "It seems anomalous then under the proposed amendments," Markman wrote, "that law students should now be allowed to participate in the most serious cases in the Court of Appeals with a diminished opportunity for further appeal, under circumstances in which even the presence of a member of the bar would have the least possible effect in rectifying a serious error made during oral argument by the student." 7) However much assistance and supervision law students receive from professors, or members of the bar, what they say in court carries enormous and often irreparable consequences for their "clients." Given the relatively small number of Court of Appeals decisions that are eventually heard on appeal by the Michigan Supreme Court, the stakes are too great to allow parties in the Court of Appeals to be represented by law students. 8) The law student is not subject to standards otherwise applicable to all lawyers. If the student is deemed to be subject to these standards, the impact upon the student of being found to be in violation would be damaging on a long-term basis. Concurring, Justice Young commented: "I share the concerns Justice Markman raises about the extension of the 'student advocate' program to the Court of Appeals. Were it not for the fact that the judges of the Court of Appeals expressed an interest in having this proposal published for comment, I would have opposed it. "The quality of advocacy by licensed attorneys at both the Court of Appeals and the Supreme Court remains a concern even without extending the ability to appear before an appellate court to unlicensed persons. "My agreement to publish this proposal in no way ensures that I will ultimately support its enactment. However, I am interested in seeing the responses to the issues Justice Markman raises from those who support the student advocate program." Paul D. Reingold, director of clinical law program at Michigan Law School, provided a detailed response to Markman's comments. "What is surprising is that the court allowed law students to practice in trial settings first, rather than in the controlled environment of an appellate court, where the issues, and the time to argue them, are more limited," he wrote. "Whenever my law students began to practice in courts that did not previously see them, the judges in those courts were invariably anxious about the change. ... In every court where we have appeared, these concerns turned out to be non-issues." Reingold responded to Markman's eight specific objections: 1) The standards of professional competency and character remain with the court. As in the trial courts, the presiding judge or panel can interrupt the proceeding to ensure that the representation of the client is appropriate. The supervising attorney always carries that responsibility, and can intervene, or supplement the record as necessary, if the adequacy of the representation is at risk. 2) As in the trial courts, a panel can choose to deny student representation in any case. Typically such denials would not be for lack of information about the student lawyer but rather due to the complexity or importance of the case. "Admission to the bar provides little information about skill in appellate advocacy," Reingold wrote, "and absent a suspension, any member of the bar can bring a case to the Court of Appeals, regardless of whether the lawyer earned a high LSAT score, did well in law school, took several tries to pass the bar or has a checkered disciplinary history. Student practice is thus no different." 3) Justice Markman is correct that student attorneys will serve primarily indigent clients. Far from being "guinea pigs," for these clients, the choice typically is not between student attorneys and "trained and experienced lawyers," but rather between student attorneys and no lawyer at all. 4) The specter of ineffective assistance of counsel in criminal cases is already present in the trial courts, where students have been practicing for three decades or more. To my (Reingold's) knowledge, no Michigan case has reversed a conviction due to ineffective assistance of a student lawyer. 5) The proposed amendment does not add any new grading requirement. The current rule, which has functioned well for decades and has been used as a model by other courts, requires that student attorneys must have received a passing grade in law school courses, have completed the first year, and have met the academic and moral standards established by the dean. Students who are at risk academically or morally thus cannot participate under the rule. The only incentive for the students is to do their best work, both for the client and for their grade. 6) Justice Markman is correct that the more that is at stake in a case, the higher the level of supervision should be. In the Court of Appeals, the supervising attorney will always be present, to interrupt, or to supplement, the student's presentation. The supervising attorneys have played exactly the same role for years in the trial courts, without (to Reingold's knowledge) the issues of legal malpractice or ineffective assistance of counsel having been raised in a single Michigan case. 7) As to the high stakes of an appellate argument, the same argument against the proposed amendment would apply with equal vigor to the federal appellate courts. Yet today all circuits except the Fifth and the 11h permit students to argue, and the consensus of the bench is that the student practice rule has brought none of the downside risks that Justice Markman raises; at the least to my knowledge no court has undone a student practice rule after having adopted one. 8) A student who has not yet been admitted to the bar cannot be disciplined (through suspension or disbarment) comparably to a licensed lawyer. The same is true of medical students who are permitted to practice hands-on medicine - sometimes with life or death consequences before they are fully licensed. But the lack of licensure does not mean that discipline is impossible. "Finally, it is worth noting," Reingold concluded, "that the number of cases in which student attorneys will appear will always be quite low compared to the court's total docket." Anne N. Schroth, clinical professor and director of the Pediatric Advocacy Initiative at Michigan Law School, concurred with her colleague. "Paul Reingold has written a detailed response to the concerns raised by concurring Justice Young and dissenting Justice Markman. I entirely agree with his remarks and will not reiterate them here," she wrote. "Based on our experience at the trial level, allowing students to practice in the Court of Appeals would certainly have no negative effects and, quite possibly, would create positive change in terms of efficiency and quality of representation." Michigan Law School Dean Evan Caminker, on behalf of his counterparts at other Michigan law schools - Robert Ackerman at Wayne Law; Don LeDuc at Thomas M. Cooley, Joan Howarth at Michigan State and Lloyd Semple at Detroit Mercy - wrote: "We believe that Justice Markman's concerns, while understandable, do not provide persuasive reasons to reject the proposed changes. First, it is certainly true that student attorneys will primarily serve indigent clients... But we think it misses the mark to describe clients of law school clinics as 'guinea pigs.' Rather, these clients are accessing smart and hard-working law students supervised by experienced and skilled faculty members when the clients would otherwise go unrepresented." Jim Neuhard, director of the State Appellate Defender Office, wrote, "I ... enthusiastically support the proposed court rule amendment to allow a law student or recent graduate to appear in the Court of Appeals." The State Appellate Defender Office represents 25 percent of indigent criminal defendants in the Court of Appeals and also oversees appellate practice clinics at four Michigan law schools. "Many young lawyers are reluctant to embark upon a career in appellate work because of the specialization," Neuhard wrote. "The best way to encourage new attorneys into this area of practice is to expose them to practice in the Court of Appeals with the hope that the best and brightest will want to make a career out of appellate work. The most competent new appellate attorneys will also be those with direct training in law school." Chief Judge John Hohman of the Monroe County Probate Court submitted his written support of the rule change: "I have been a trial judge for the past 13 years and have presided over approximately 20 cases where the University of Michigan law students represented the petitioner in a child protective proceeding... The students are appropriately supervised, and are well prepared for the proceedings. They have a thorough understanding of the applicable case law, and for the most part, demonstrate their preparedness by having developed well-reasoned arguments to anticipated objections. "It is my belief that appropriately trained and supervised law students would perform admirably in the Michigan Court of Appeals." Carrie L. Hempel, clinical professor of law at University of California, Irvine School of Law and formerly with the University of Southern California Law School's Post-Convection Justice Project clinic, has supervised more than 20 students who have argued before the California and federal appellate courts. "In every instance," she wrote, "students performed as well or better than most of the attorneys appearing before the court on the same hearing schedule. Also in virtually every case, at the conclusion of the argument, the judges hearing the appeal complimented the student on his or her outstanding representation of the client. In many cases, opposing counsel also complimented the student. Also in many instances, the clinic's client prevailed in the litigation (no small feat in cases seeking post-conviction relief)." Barbara A. Schwartz, a graduate and former clinic professor at Wayne Law, now with the University of Iowa College of Law, also wrote in favor of the rule change. "I have been supervising law students in our in-house clinic for 33 years," she wrote, "and in that time have overseen, with my clinical colleagues, literally dozens of students representing clients in the Iowa Court of Appeals, the Iowa Supreme Court and the US Court of Appeals for the Eighth Circuit. I have no qualms whatever recommending to the Court that similar student practice be permitted in Michigan." Prior to joining the law faculty of the University of California, Irvine, Schwartz colleague Catherine Fisk was a chaired professor at Duke Law School in Durham, N.C., where she taught an Appellate Litigation Clinic. The clinic successfully handled a number of appeals in the U.S. Court of Appeals for the Fourth Circuit and one case in the Virginia intermediate court of appeals. "The judges and opposing counsel expressed great admiration for the quality of the written and oral advocacy," Fisk wrote. "The clients obtained superb and, in many cases, successful representation. It was an extraordinarily valuable experience for the students." Suellyn Scarnecchia, University of Michigan vice president and general counsel, said her comments were based on her experience as a legal educator and not in any way related to her current role with the University of Michigan. "By allowing students to make their very first oral argument in the Michigan Court of Appeals through a supervised educational program focused on careful preparation and without the time pressures faced by licensed attorneys," she wrote, "you will very likely assure that students will be better appellate practitioners throughout their careers. And the clients served by those students, who might otherwise not be represented at all, will garner the advantages of a team composed of an experienced supervisor and well-prepared student. I urge you to adopt the proposed amendment." The Michigan Judges Association weighed in on the rule change. The MJA supports the proposed amendment except during appellate argument or in a criminal or juvenile case exposing the client to a penalty of more than six months. "This would ensure that the state bar member who is supervising the law student or recent graduate would be present during appellate argument in either the trial court or the Court of Appeals and in criminal cases for which the possible penalty is for more than six months," wrote Judge James Alexander, president of the MJA. Janet Welch, executive director of the State Bar of Michigan, said the bar's executive committee concurred with the MJA's recommendation and also suggested, as did a majority of the Court of Appeals judges, that the rule change have a two-year sunset provision. Judge David A. Hogg, 84th District Court, lamented an "overstock of recent law school graduates and a scarcity of entry-level jobs." Short of limiting the number of law students, the courts should encourage and support law school clinics and professional mentoring programs, he said. "The danger to the public and to individual litigants posed by highly supervised law students appearing for oral argument in the Court of Appeals," Hogg wrote, "is dwarfed by the harm now caused by inexperienced, licensed lawyers practicing without supervision throughout our justice system." The Supreme Court's public administrative conference will follow the administrative hearing. Both will take place in the courtroom on the sixth floor of the Michigan Hall of Justice, 925 W. Ottawa Street, in Lansing. The public hearing will begin at 9:30 a.m. and adjourn no later than 11:30 a.m.; the administrative conference will follow after a brief break. Published: Fri, Sep 10, 2010

––––––––––––––––––––
 Subscribe to the Legal News!
 https://test.legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available