‘S’ is for ‘Summer Students,’ Who Require ‘Supervision’

Clerkships can be great for students and law offices, but supervising lawyers need to play an active role.

Summer is underway, and for many lawyers that means working with a summer associate or law clerk. A summer clerkship can be beneficial to both the law office and the student, but be sure to keep some special ethical considerations in mind if you've brought a student on board.

711 v. private clerkship

First, there's a difference between a clerk working at a private firm and a student practicing under Illinois Supreme Court Rule 711. Students who become certified by the dean of their school under Rule 711 are permitted to do more.

There is an important limitation, though: 711 students may only work for 1) a legal aid bureau or legal assistance program, organization, or clinic, 2) a public defender, or 3) a law office of the state or any of its subdivisions.

Rule 711(c) states that "[u]nder the supervision of a member of the bar of this State, and with the written consent of the person on whose behalf he/she is acting, an eligible law student or graduate may render," certain services. These students are permitted to advise clients, negotiate settlements, represent clients in mediation, prepare and draft legal instruments, and appear in court subject to qualifications outlined in Rule 711.

The critical requirement is that this work be carried out under the supervision of an Illinois licensed lawyer. As with all rules, exceptions may apply, so it is important for a supervising lawyer to become familiar with Rule 711 and its comments to adequately supervise a 711 student.

Clerks working in private practice, on the other hand, cannot appear in court or act on behalf of clients as 711 students can. While clerking can be fruitful for both students and law offices, clerks cannot be treated the same as their 711 counterparts. As a supervising lawyer, you must be aware of the differing limits applicable to 711 students and clerks.

Embrace the supervisor's role

Regardless of whether you are supervising a student as a 711 or in private practice, there are supervisory rules you must follow. Become familiar with Illinois Rule of Professional Conduct 5.3, "Responsibilities Regarding Nonlawyer Assistance."

Rule 5.3 imposes responsibility on a managerial authority in a law firm. The gist of the rule is that lawyers with that responsibility must make reasonable efforts to ensure that nonlawyers working at the firm act in a way compatible with the professional obligations of the lawyer and that the supervising lawyer can be held responsible for the nonlawyer's conduct.

Active supervision. At the outset, supervising lawyers should review key rules of professional conduct with law clerks. Don't assume your clerk knows the intricacies of, say, Rule 1.6 governing confidentiality. In fact, don't assume your clerk knows anything about Rule 1.6.

Comment [2] to IRPC 5.3 touches on this by acknowledging that nonlawyers act for the lawyer in rendering professional services:

A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

A good example of the risks of lax supervision is In the Matter of Clark, 04-CH-28 (Hearing Board, Dec. 3, 2014), where a lawyer was reprimanded for directing a third-year law student to conduct unsupervised questioning of an expert witnesses at a deposition. The ARDC found that the supervising lawyer in that case violated IRPC 5.3(a), 5.3(b), 5.3(c)(1), 5.5(b), and 8.4.

Beware of UPL. Summer clerks will be eager to do as much as possible to gain valuable experience. But don't let the clerk go too far and risk engaging in the unauthorized practice of law. As stated in Chicago Bar Ass'n v. Quinlan & Tyson, 34 Ill. 2d 116 (1966), a nonlawyer may fill in the blanks of a document that requires the "supplying of simple factual data," but a non-lawyer may not fill in "blanks on deeds, mortgages, and other legal instruments subsequently executed."

In Illinois, giving legal advice to another in any matter involving the application of law or legal principles to specific circumstances, facts, status, rights, obligations, purposes, or desires when such advice is intended to be or may be reasonably relied upon constitutes the unauthorized practice of law. In re Howard, 18 Ill. 2d 423 (1999); People ex rel Chicago Bar Ass'n v. Barasch, 406 Ill. 253 (1950).

IRPC 5.5 governs the unauthorized practice of law, and Comment [2] to that rule allows a lawyer to delegate tasks to a nonlawyer, but only "so long as the lawyer supervises the delegated work and retains responsibility for their work." So again, careful and active supervision is the key.

BaIley E. Felts is assistant counsel for the ISBA.

bfelts@isba.org