ABA Standard 304(B) Update

The ABA Section of Legal Education and Admission to the Bar released a memo on proposed revisions to the ABA Standards for Approval of Law Schools. As you may recall, the Standards were approved over the summer and defined law school clinics in a manner that meant that mediation clinics would no longer be considered clinics. (Indisputably coverage on this here).  Subsequently, the ABA DR Section put together a Task Force to look at the issue and after soliciting feedback on the list serv, the Task Force made a proposal that Jen put out on the list serv sometime in January.

You will be happy to see that the proposal includes revising Standard 304(b) to reinstate Mediation Clinics to the clinical world. The primary thrust of the Task Force’s proposal was adopted. Thanks to my fellow members of Task Force for their work on this – Jim Alfini, Howard Herman, Carol Izumi, Brian Pappas, Geetha Ravindra, Jen Reynolds, and Nancy Welsh.

A hearing on the proposed change is scheduled for Thursday April 30, 2015 from 3-5 pm at the ABA offices in Chicago. Any written comments on the proposal (the proposal in its entirety is here) should be sent to JR Clark at jr.clark@americanbar.org by Friday April 24, 2015. The proposed change to 304(b) involving mediation clinics and the discussion for the proposed revision is below.

Standard 304

Subsequent to the comprehensive revision to the Standards, several faculty teaching mediation clinics submitted comments that the new definition of a “law clinic” excluded work done by their students serving as mediators, a lawyering role that does not involve advising or representing one or more clients. The change addresses that issue. The language of “serving as a third-party neutral” is used in Rule 2.4 of the ABA Model Rules of Professional Conduct to describe lawyering work as mediators. In mediation clinics, students serve as third-party neutrals for real parties who are either proceeding pro se or with the assistance of counsel. This is real lawyering work and involves actual individuals. Like other law clinics under the new definition, these mediation clinics provide students with substantial lawyering experience in a real life context.

Standard 304. SIMULATION COURSES AND LAW CLINICS (strikethroughs for deletions)

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(b) A law clinic provides substantial lawyering experience that (1) involves advising or representing one or more actual clients or serving as a third-party neutral, and (2) includes the following:

<strike>(i) advising or representing a client;</strike>

(<strike>i</strike>i) direct supervision of the student’s performance by a faculty member

(<strike>ii</strike>i) opportunities for performance, feedback from a faculty member, and self-evaluation; and

(iii<strike>v</strike>) a classroom instructional component.

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By Art Hinshaw

Art Hinshaw is a Clinical Professor of Law and the Director of the Lodestar Dispute Resolution Program at ASU Sandra Day O'Conner College of Law. His research and teaching interests focus primarily on mediation and negotiation, often bridging ADR theory and practice. He is an avid writer and contributor to ADR Prof Blog.