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New Supreme Court rule changes how Louisiana law clinics help working poor
By Anna Marie Kukec

Two universities in Louisiana are asking the state Supreme Court to reconsider amendments to a rule that literally harnesses how law school clinics represent the working poor. The action comes after Tulane University’s Environmental Law Clinic successfully blocked construction of a controversial chemical plant and sparked criticism from business and political leaders.
The law schools--at Tulane University and Loyola University in New Orleans--are protesting amendments to Rule XX, a Supreme Court rule that governs operation of law school clinics. The amendments, approved in June 1998, limit the clinics from representing organizations that are local chapters of national groups and eliminate direct solicitation of certain organizations that may need legal assistance. Also, only organizations that can prove that 51 percent of their membership are indigent can be represented by the clinics.
"This leaves the clinic unable to take cases for the working poor and prevents us from representing these organizations. We won’t be able to help environmental groups or religious groups or even the NAACP," says Edward Sherman, dean of Tulane’s School of Law.
The amendments were imposed after a Tulane case angered local business and political interests.
Student success sparks trouble
About two years ago, Shintech Inc., a Japanese chemical company, planned to build a $700 million plant in Convent Parish between New Orleans and Baton Rouge along the Mississippi River. The site was considered part of an area nicknamed "Cancer Alley" because about a dozen plants have helped make the region the third most polluted in the state, according to Sherman.
Predominantly poor, African-Americans live in the area and fear for their safety. Community groups were so alarmed about the new plant that they asked the Tulane Environmental Law Clinic to help block Shintech’s construction.
In the meantime, Shintech got the nod from Gov. Murphy Foster who hoped the company’s new plant would encourage industrial growth, and the Louisiana Department of Environmental Quality provided permits needed to begin construction, notes Sherman.
Tulane took the case and began investigating, which elicited criticism from the governor. Regardless, the law students prepared a Title VI complaint regarding discrimination by the state in granting the permits, and filed it with the U.S. Environmental Protection Agency. The complaint led the federal agency to launch an investigation into Shintech’s permits.
While Tulane and the community groups pushed Shintech to follow state and federal environmental laws, the company abandoned its plans last September to build in Convent Parish. However, the company selected another site elsewhere in the state and plans to partner with Dow Chemical. As a result of that move, Shintech must now go through the entire permit process again.
Meanwhile, during the 1998 election year, the influential Louisiana Association of Business and Industry reportedly asked the Louisiana Supreme Court to change the rules overseeing law school clinics, Sherman claims. The court then added the amendments last June.
Chief Justice Pascal Calogero Jr., of New Orleans did not return Bar Leader’s phone calls. The court has declined comment while it reviews briefs for reconsideration filed by Tulane and Loyola University, according to Tim Averill, deputy judicial administrator and general counsel for the chief justice.
Bar reacts
The Louisiana State Bar Association is also reserving comment about the law school clinic rule because the court declined the bar’s request
"This is a matter that should be considered by our House of Delegates. We don’t have a crystal ball to ask what should and should not be done by the House," says bar President Patrick Ottinger of Lafayette, La.
In August, the law school clinic rule and the Tulane-Shintech case came before the bar’s Board of Governors through Sherman, who is a board member. The board approved a resolution requesting that the Supreme Court withhold implementation of the amendments to Rule XX until after the bar’s House of Delegates met in January.
Bar officials wanted the house to fully consider and, possibly, comment on the rule. But since the House only meets twice a year, its January 1999 meeting fell outside the court’s Oct. 19, 1998, deadline for comments.
The court denied the bar’s request for more time. In turn, the board elected not to take a position on the rule, notes Ottinger.
"We chose not to take a position because the changes in the rule were not explained to us, good, bad or otherwise. The court then declined our request to wait until after January 9 when the House meets and would have reasonable time to respond," adds Ottinger.
Nation is also watching
Some national leaders in law are reviewing the effects of Louisiana’s amended rule, including the National Legal Aid and Defender Association.
"Our organization has always supported the rules in all of the states which allow properly supervised third-year law students to represent low-income people without restrictions," says Clint Lyons of Washington, D.C., president and chief executive officer of NLADA. Supervised law students have helped to expand legal services to low-income people who otherwise would not have access to justice, Lyons adds.
"We are concerned with the new rule in Louisiana. We don’t generally support restrictions on this type of representation," Lyons says.
The Louisiana rule may be one of the most restrictive in the country, according to officials at the Association of American Law Schools.
"The rule as amended denies important educational opportunities to students, and it also denies access to justice to certain groups and individuals," says Carl Monk of Washington, D.C., executive director of AALS.
While every state has some type of court rule that oversees law school clinics and the work performed by law students, Louisiana’s amended rule is unique.
"It may be the only one that requests that more than half of those in an organization meet federal poverty guidelines before their organization can be represented by the law clinic. We believe that is unfair. It places an impossible burden on the clinic," Monk adds.
That burden would be to examine tax returns of every member or gather other financial data to determine the economic level of an organization’s total membership, Monk explains.
The American Bar Association Legal Education Council had a standing policy since June 1997 regarding interference in law school clinical activities. The policy states:
"Improper attempts by persons or institutions outside law schools to interfere in the ongoing activities of law school clinical programs and courses have an adverse impact on the quality of the educational mission of affected law schools and jeopardize principles of law school self-governance, academic freedom, and ethical independence under the ABA Code of Professional Responsibility."
Tulane officials informed the ABA of the rule change and provided a report last August.
"After we reviewed the report, we expressed to them our concern that the rule became a political issue," says James White of Indianapolis, consultant to the ABA Legal Education Council. Education at stake
Despite the fallout related to the Shintech case, the Tulane law clinic earned an honorable mention in late 1998 as "Lawyer of the Year" from The National Law Journal, which noted: "Their victory came at a cost."
"Our chief concern is that these clinics provide a good learning experience for students. The by-product is that they provide representation. But these new rules are taking away cases that would be good learning experiences," Sherman says.
The Tulane law clinic is one of seven within the law school. Each of the clinics has five to 25 students working on any one case. The clinics still have hundreds of cases pending that were accepted before the new rule amendments went into effect.
"However, the full impact of the new rule has not yet been felt. But we are seeing some impact effecting the quality of these clinics as educational vehicles," Sherman says.

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