Idea for a law school clinic: assist clients in mandatory fee arbitrations

Prof. Bainbridge asks, "Does clinical legal education really have to be about left-liberal politics?" In the comments, I offered an idea (edited slightly below) for what I think would be a very useful clinic:

[H]ere's an idea for a "real world" clinic that would immensely help law students prepare for practice. Set up a clinic that assists clients in Mandatory Fee Arbitration matters.

(Lawyers [in California and some other states] are required to offer non-binding MFAA arbitrations to clients if there is a fee dispute. The large majority of the clients are unrepresented in the arbitrations and they are going toe-to-toe with their own former lawyers (who, needless to say, are typically better prepared than the clients). The MFAA matters run the gamut: family law, criminal law, trust & estates, commercial litigation, personal injury, etc. Admittedly, those cases might not be appealing to law schools and some professors because they are so mundane. But they reflect the real world of practice.)

With some help from a clinician and some law students, the clients' performance at the arbitrations could be much improved. And I guarantee that the students would learn a lot about the standard of care, the fiduciary duties lawyers owe clients, the way that lawyers should (and the way they actually do) communicate with clients, fee agreements, time sheets, billing statements, the law governing legal fees, the vagaries of litigation, etc. Students would learn about "problem clients", about "problem lawyers," and about how it sometimes happens that despite the best efforts of lawyers and clients the matter goes poorly. I've been sitting as an MFAA arbitrator for a long time and I still learn something new every time I do one.

The arbitrations are of manageable size, so that a student could prepare one each week, allowing plenty of opportunity for teaching, feedback, and improvement. And each case would be quite similar to the bar exam performance tests, because the students would need to read a fairly short file and figure out what the issues are, etc.

Comments

[Mike Frisch]

Great idea.

The students also would learn something about how the profession self-regulates and how the state bar admininisters the arbitration program.

[John Steele]

@Mike, good point. The MFAA's in California are confidential and the hearing isn't open, but I wish I could take students to them.

[Steven Lubet]

Many of the subject areas undertaken in clinics might be called liberal, but only because conservatives disdain such cases. For example, there is nothing inherently liberal about challenging wrongful convictions – as we do here at Northwestern – but conservatives typically don’t do that sort of work. I really don’t know why, as it is obviously a situation without any market solution and conservatives as well as liberals ought to object to wrongful convictions.

In my own long-ago days as a clinician, I concentrated on consumer cases – that is, contracts litigation. Again, there is nothing particularly liberal about enforcing consumer protection laws, but only liberals seem to be interested in it. Likewise, refugee asylum cases, which we do at NU, which is also a form of law enforcement.

At Northwestern, btw, we also have a Shareholder Protection Clinic and a Small Business Opportunity Clinic, as well as a program that concentrate on mortgage fraud.

[John Steele]

Steven, thanks for posting. I'm not invested in the left-right fight except that I'd observe strictly as a descriptive matter that the large majority of clinicians I've spoken too are quite open about being progressive-left (both at their clinics and across clinics nationwide). Of course there are exceptions and nothing is 100% this way or that. For a variety of reasons, though, I'd expect that general political orientation to continue unabated.

But would you say that as a descriptive matter law school clinics don't tilt left in the US? Is that just factually wrong?

[David Cameron Carr]

It is a great idea.

[Steve Lubet]

Sure, most clinical teachers are liberals, but so what? The more interesting question is why so few conservatives are interested in challenging wrongful convictions and similar work. Unlike Bainbridge, I won't cast any aspersions (in his full post, he suggests without evidence that conservative students are "harassed out" of clinical programs), but it sure seems to me that critics of "big government" ought to be equally skeptical of prosecutors. There's gotta be an explanation, right?

[John Steele]

Steve,

Thanks. As I said, I have no dog in the left-right fight but I would be interested to hear any learned views casting doubt on the idea that clinics are by and large left leaning.

My main point for that post is that there is a potential clinic that would be deeply educational for law students and helpful for the down-trodden clients of the world.

[Steve Lubet]

I guess I am not making my point clearly, John. To say you have "no dog in the fight" implies that there is a fight. There isn't. There is nothing inherently right or left about most clinical work, except that conservatives don't seem to be interested. If more conservatives were involved in consumer protection, would that make it right leaning? The representation would be the same.

Most football coaches are Republicans, for example, but that doesn't make football "right leaning."

[John Steele]

Steve, my apologies for not following your point!