CLARE E. CRAGAN

April 16, 2010

The Maryland Legislature this month proposed unprecedented disclosure requirements for the University of Maryland School of Law's environmental legal clinic, compromising confidentiality privileges that are standard in the field of law. The Legislature proposed the bill in direct response to the clinic's involvement in a Clean Water Act suit against Perdue Farms.

Environmental law clinics at law schools around the country fall into a unique place in legal education. Law clinics serve as an experiential educational opportunity for law students while providing essential legal services to citizens and organizations that would otherwise likely be financially barred from the courts. In their effort to provide "real-world" client experience for students, clinics, like law firms, operate under the same professional, ethical, and confidentiality rules, including attorney-client privilege. Often a clinic, as an institution within a larger university, may depend on funding from the state budget. These facts seemed disparate and unrelated until recently.

The University of Maryland's law clinic represented the Assateague Costal Trust in litigation against Perdue Farms for polluting water sources in violation of the Clean Water Act (CWA). The clinic sought to enforce CWA requirements under the citizen-suit provision, which allows parties other than the EPA to enforce pollutant discharge rules. When Maryland legislators caught wind of the lawsuit, they took quick action and introduced a bill that would deny funding to the University and would require disclosure of the clinic's client lists—a requirement that would violate attorney-client privilege.

Sen. J. Lowell Stoltzfus, the main proponent of the bill, told the Washington Post that "[w]e, as taxpayers, are supporting the law school, which . . . turns these students loose on businesses that are being very productive." However, these businesses, according to the law clinic and their clients, were violating the law.

The legislative action was met with harsh criticism that included a statement from the American Bar Association and a letter signed by legal clinic directors across the country. In subsequent negotiations, the parties agreed to remove the $ 250,000 funding cut for University of Maryland, but many of the original disclosure requirements remained. The negotiations concluded on April 6, and the bill now requires that the clinic, "shall submit a report on the Environmental Law Clinic listing and describing each legal case in the past two years in which they participated in a court action including a complete delineation of the non privileged expenditures for each case."

While the measure does not go so far as to violate attorney-client privilege, it hovers on the borderlands, and as Dean Phoebe Haddon of Maryland's law school mentioned, it has the "specter of intimidation" by the legislature, particularly since Perdue Farms is a major campaign contributor. The experience worries law clinic advocates, especially since this is one legislative attack of several in the past few years. Louisiana, New Jersey and Michigan have also faced similar threats to reveal privileged and confidential information. Now many law clinics, especially clinics at public schools, fear their program's fate may depend on the how much political power or how deep the pockets of the opposing side.

Sources:

David A. Fahrenthold, Md. Legislature Scrutinizing Law Clinic Over Chicken Farm Suit, The Wash. Post, (Mar. 28, 2010), available at http://www.washingtonpost.com/wp-dyn/content/article/2010/03/27/AR2010032702380.html

Karen Sloan, Independence of Maryland Law School Clinic Is Challenged by Lawmakers, National Law Journal (Mar. 29, 2010), available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202447072923

Karen Sloan, Partial Victory for Law Clinic in Fight with Legislature, National L.J. (Apr. 5, 2010), available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202447502486&hbxlogin=1

Ian Urbina, School Law Clinics Face a Backlash, N.Y. Times (Apr. 3, 2010), available at http://www.nytimes.com/2010/04/04/us/04lawschool.html

General Assembly Will Not Withhold Funds over Clinic Lawsuit, University of Maryland School of Law, http://www.law.umaryland.edu/about/features/enviroclinic/index.html