A judicial externship gives a law student an opportunity to observe and participate in a wide variety of court proceedings as well as provide a platform for learning and developing a system of professional ethics before entering the work force as a licensed attorney. Judges use interns in many ways and usually assign tasks that are similar to those that their law clerks perform. Part of these duties include conducting legal research, preparing research memoranda for the judge, writing rough drafts of orders and opinions, attending preliminary hearings, talking with attorneys, and attending trial proceedings. All of these tasks require ethical considerations. Being directly responsible for these assignments can provide a law student with meaningful lessons for developing professional conduct as an attorney and address ethical and professional issues that may arise. Therefore, issues relating to ethics and professionalism should apply to law students because although they are not working as licensed attorneys in an official capacity, they are taking on the role of such and should learn and apply the ethical responsibilities and obligations that come with that role. These responsibilities should be conveyed, implemented, and reinforced by the supervising attorney through the Rules of Professional Conduct.
The New York Rules of Professional Conduct (“New York Rules”, “Rule”, “Rules”) are similar to the American Bar Association (“ABA”) Model Rules of Professional Conduct in that both are categorized by duties owed to the client, the court, and the profession, and disciplinary action for rule-violation. Duties to the client include confidentiality (Rule 1.6), avoiding conflicts of interest (Rule 1.6 – 1.12), being competent (Rule 1.1), diligence and effectively assisting the client (Rule 1.3), avoiding commingling (Rule 1.15), self-dealing and fee splitting (Rule 7.2), and withdrawing from representation (Rule 1.16). Rule 3.3 defines the duties to the court which include disclosing legal decisions of adverse authority, proper courtroom demeanor, and disclosing perjurious intentions of a client. Duties to the profession embrace a vital area that may have an impact on an intern’s work in the court: lawyer misconduct and reporting such professional misconduct (Rule 8.3, 8.4). Duties to the profession also include legal advertising standard (Rule 7.1), voluntary pro bono services (Rule 6.1), honesty in the Bar admission process (Rulev8.1), and involvement in legal services organizations (Rule 6.3). There are a few rules related to legal interns that overlap with the duties owed to the client, court, and profession, which may also have an impact on an intern’s work in the court. They are lawyer’s responsibility for a nonlawyers’ conduct (Rule 5.3), trial publicity (Rule 3.6), confidentiality (Rule1.6), and unauthorized practice of law (Rule5.5).
According to Rule 5.3 of the New York Rules of Professional Conduct and the ABA Model Rules of Professional Conduct, a lawyer is responsible for the ethical behavior of non-lawyers who work in his law firm or practice. Regarding placement as an intern within the court, the law clerk must ensure that the intern’s conduct is “compatible with the professional obligations” of being a lawyer. If the law clerk observes the intern engaging in unprofessional conduct or learns that unprofessional conduct has occurred, the law clerk, in his capacity as “supervising attorney,” must take appropriate corrective action. For example, if an intern attends a social event or goes out for a few drinks and begins telling people about the details of confidential court matters, the law clerk that included the intern in these affairs can be disciplined for violating the ethical obligation of Rule 3.6, “refraining from making extrajudicial statements that should not be publically communicated.” Even though the law clerk did not make these statements, the unethical conduct of the intern is projected onto the law clerk. One could say that the law clerk is “vicariously liable” for the conduct of an extern. Moreover, under New York Rule 5.3.8, if the supervising attorney “knowingly fail[s] to supervise” an intern, he can also be disciplined for violating the ethical responsibility for the conduct of the intern. This rule in particular could have a strong impact on an intern’s work because they would not receive the guidance or feedback needed in making decisions which could lead to potential ethical dilemmas. Supervision from the law clerk and school faculty is key in helping law students not only make challenging decisions and to comply with ethical standards, but also to offer practical guidance, critique, and encouragement as they experience, develop, and shape the foundation of their own professional and ethical structure as future attorneys.
Working as an intern for the court raises several questions regarding the Rules of Professional Conduct. First, do the ethical rules bind students even though they are not yet admitted to the bar? In other words, are law students in subordinate lawyer roles guided by Rule 5.2? If so, does Rule 5.5, Unauthorized Practice of Law, apply? To illustrate, in the case In re Wilkinson, an attorney was sanctioned for violating Louisiana Rules of Professional Conduct for failing to supervise an unlicensed law student employed in his office. 805 So. 2d 142 (La. Jan. 15, 2002). The Court held that the attorney was responsible for the incorrect legal advice given to his client by the unlicensed law student even though the attorney was not directly responsible for the misinformation. Id at 146. The Court further found that “A lawyer cannot delegate his professional responsibility to a law student employed in his office . . .The student in all his work must act as agent for the lawyer employing him, who must supervise his work and be responsible for his good conduct.” Id. at 147. Second, what if a law student suspects a violation of the Rules which raise significant questions as to the judge or law clerk’s honesty, work ethic, trustworthiness as per Rule 8.4, Misconduct? Does the law student report to the school’s supervising professor? If the student confides in the supervising professor, who happens to be a licensed attorney, is legal advice being offered? Does Rule 1.6, Confidentiality of Information, kick in exempting him or her from reporting the misconduct as per Rule 8.3, Reporting Professional Misconduct? Finally, would there be a conflict of interest if the student appears in front of the judge they interned for as an attorney in the future? How would the student inquire about this potential ethical predicament? The Rules do not cover all bases, which in my opinion, is the reason why they are known as self-governing rules.