Professional Responsibility Issues
Some students may not have taken the Professional Responsibility course prior to externing, or they may be taking it concurrently with the Externship course. Consequently, students have differing levels of knowledge regarding issues of Professional Responsibility.
Immediately prior to beginning their externship field work, all students participate in an orientation class which gives them a basic introduction to professional responsibility issues that commonly relate to students in externships. However, this is only an introduction, and it does not specifically address ethical issues in any one practice area or setting. Accordingly, field supervisors should plan to have an in-depth discussion with the student at the outset of the externship so that they understand how professional responsibility issues arise and apply in the particular practice area or office setting of the field office. Field supervisors should also point out professional responsibility issues as they arise during the semester so that the student can discuss with their field supervisor the ways to recognize and resolve ethical issues in practice.
Confidentiality might be a basic concept to lawyers, but students are often unclear about what type of information is confidential and how confidentiality can inadvertently be breached. Consequently, field supervisors should talk to their student at the outset of the externship about the type of information that is confidential in their specific practice area and office setting. Field supervisors can talk about things like who their client is, to whom they owe the duty of confidentiality, what communications in the office are confidential, what common mistakes could inadvertently lead to a breach in confidentiality, how students can appropriately share their work experience with friends and family without breaching confidentiality, etc.
With the constant evolution of technology, field supervisors should also remind their students about confidentiality and technology. For example, students might be tempted to share with their "friends" on social media how they drafted the judicial opinion that got published without changes, or how they found the little-known case law that saved the client from liability, but they may not realize that those sorts of disclosures could also unintentionally breach confidentiality.
Conflicts of Interest
A conflict of interest, or the appearance of one, may arise with an extern because of their past careers, clerkships, volunteer work, and/or clinical experiences. Although students are advised to talk to their field supervisor about their prior work, field supervisors should raise the issue of conflicts of interest with their extern. This raises the student's awareness about the reality and normality of conflicts in law practice and gives them an opportunity to hear a practitioner’s assessment of whether their past work implicates the Rules of Professional Conduct that govern lawyers/judges in the specific jurisdiction of the field office.
Unauthorized Practice of Law
We are extremely conservative when it comes to an assessment of whether a student's field work could be considered the unauthorized practice of law. There are serious consequences for students when a question of the unauthorized practice arises. These can prevent students from sitting for a bar exam or becoming licensed to practice law. Accordingly, field supervisors should be conscientious when assigning lawyering tasks to their student to perform.
Ultimately, the field supervisor is responsible for any tasks their student performs. Field supervisors should remember to carefully review and sign off on any written work that their student drafts. If the field office is in a jurisdiction that allows for students to get temporary licenses to practice law, field supervisors should be sure that their student's credentials comply and the field office setting and/or practice area qualifies under the licensing requirements. When supervising students with a license to practice, field supervisors should provide significant training and direct supervision to the student, including opportunities for the student to observe other lawyers handling similar types of cases that they will be assigned, review and critique of written work that the student plans to submit for a case, assistance with preparation for client interviews, hearings, or trials, etc.