BY KAITLIN WILLIAMS
Daily Staff Reporter
Published January 20, 2011
If a recent New Jersey Court ruling declaring that public university law clinics must comply with open records requests expands to other states, clinics like the University of Michigan Innocence Clinic may encounter more challenges in trying their cases.
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While law clinics like the Rutgers Environmental Law Clinic and the University of Michigan Law School’s Innocence Clinic are part of public institutions, those affiliated with the clinics say such legislation could have detrimental effects on their practices, which often function like private law firms.
The New Jersey ruling occurred when a appellate division of a New Jersey Superior Court appellate division unanimously declared on Oct. 25 that university clinics have to submit to the state’s Open Public Records Act.
The decision overturned a 2008 New Jersey ruling that exempted public university clinics from submitting to open records requests. No such ruling currently exists in Michigan regarding the relationship between the open records requests and clinics associated with public higher education institutions.
The New Jersey ruling involved the Rutgers School of Law Environmental Law Clinic, which has submitted a brief to the New Jersey State Supreme Court calling for a repeal of the decision. Founded in 1985, Rutgers University law students work at the Environmental Law Clinic to solve issues involving building permits, waste transfer and water and air pollution, according to the clinic’s website.
Frank Askin, director of the Rutgers School of Law Constitutional Litigation Clinic, said he expects the New Jersey Supreme Court to decide whether to hear the case in the next couple of weeks. He said submitting to open records requests would be harmful to the operation of university clinics because clients could no longer expect their information to be safeguarded against becoming public knowledge.
“It would be very harmful to clinical education at public law schools if (the October New Jersey ruling) became the law,” Askin said. “It would open us up to all kinds of harassment.”
The Rutgers Environmental Law Clinic is more like a public defender office since it is funded in part by the state but doesn’t exclusively work for the state, Askin said. Many of the cases the clinic takes on are against the state, Askin said, so treating the clinic like a state employee is confusing.
“The whole thing is ridiculous,” Askin said. “It doesn’t make sense.”
While a co-chair of a subcommittee of the American Association of Law Schools, Bridget McCormack, now co-director of the University of Michigan Law School’s Innocence Clinic, worked on a legal brief in defense of the Rutgers Environmental Law Clinic.
McCormack said the Innocence Clinic functions like a private law firm and should be treated as such. The New Jersey ruling undermines the confidentiality clients should expect from the office representing them, she said.
McCormack said she fears that with such legislation, the opposing council in many cases could use open records requests as roadblocks.
“I don’t think the rule is appropriate for any law practice because it doesn’t allow us to practice law ethically,” McCormack said. “The ethical practice of law requires that we be able to promise our clients confidentiality, and you can’t do that because you happen to be subject to a state open records law.”
But McCormack also said there are other groups that may be affected more from the ruling than the Innocence Clinic. Of great concern, McCormack said, is that all clinics at state universities could be subject to their state’s open records enforcement if laws similar to the one in New Jersey were passed in other states.
“In some ways, the Innocence Clinic is not the clinic to worry the most,” McCormack said. “One of the benefits of representing people who are innocent is you don’t have anything you’re trying to protect.”
Askin and McCormack both said submitting to open records requests is an unfair disadvantage for law clinics at state universities compared to private law firms, which wouldn’t have to submit to the requests. Such a ruling would also affect the demographic that clinics like the Innocence Clinic represent, McCormack said.
“The clinics often are the only law office representing people in certain kinds of cases — usually poor people who wouldn’t otherwise be able to find lawyers,” McCormack said.
Askin said students and professors working in public university law clinics are “independent agents” and represent private clients even though the professors overseeing the cases receive state funded salaries.
According to an October article in The Chronicle of Higher Education, the New Jersey Superior Court appellate division denied a brief filed by the American Association of University Professors, the Clinical Legal Education Association and the Society of American Law Teachers stating that open records requests could be used by the opposition to waste university clinics’ time and resources.
The panel ruled that any disadvantage acquired by the new law offsets the advantage clinics receive through public funding, the article reported.
The Rutgers School of Law issued a statement saying the ruling will be a disadvantage for public university clinics’ clientele because other legal offices won’t be subject to the same treatment, according to the article in The Chronicle.
Sheila Blakney, Washtenaw County senior assistant public defender, said she wasn’t familiar with the New Jersey ruling but thinks public university clinics and the public defender offices have similar roles.
Funded by the county, the Washtenaw County Office of Public Defender is mandated to represent underprivileged clients, but takes on other cases as well.
“I actually don’t know if there are truly significant differences because we both have the duty of confidentiality,” Blakney said. “I think it would have a crippling effect on your law practice if you could not maintain the confidences of your client as you’re legally required to do.”