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BY
CATE WEEKS
Terry Smith* didn’t bring much hope with him to
the legal clinic housed inside a little gray barracks on the grounds of
a converted elementary school. Frustrated by paperwork filled with legalese,
Smith thought maybe, just maybe, the clinic could help him save 14-year-old
James* from years in a juvenile corrections facility.
“This boy is not a problem child, but if he stays in that system,
they will make him a problem,” Smith says of his former neighbor.
“I know he has potential. He just needs a home so he can find his
way again.”
The teen-ager once lived with his mother and five siblings in Smith’s
Las Vegas neighborhood. He’d watched the children grow but worried
about their upbringing by a mother who battled drug addiction. “One
day, I noticed the boy had marks on his back,” Smith says. “I
told the mother I was going to turn her in. She said, ‘Just take
them.’”
Smith took in James’ 16-year-old brother while the other siblings
were sent to live with relatives. James, who Smith says has developmental
and emotional problems related to his parents’ drug use, ran away.
“He was living out in the desert all alone and broke into someone’s
house to feed himself,” Smith says. “His grandmother didn’t
want him back and his mother couldn’t have him back if she wanted,
so he got sent to a youth home.”
If Smith wanted to change the situation, he was told, the best way was
to petition for guardianship of James. “(The process) was really
frustrating to me,” he says. “I couldn’t understand
the paperwork. To tell you the truth, if I hadn’t gotten some help,
I probably would have given up a long time ago.”
Help came when Judge Gerald Hardcastle of Clark County Juvenile Court
recommended that Smith contact the Thomas & Mack Legal Clinic at UNLV’s
William S. Boyd School of Law.
Opened less than two years ago, the clinic houses full-fledged, malpractice-insured
law offices. It currently includes two in-house practices: the Juvenile
Justice Clinic and the Child Welfare Clinic. The student-attorneys advise
clients, file legal briefs, negotiate with district attorneys, and represent
their clients in court, all under the supervision of law school faculty.
Professors Mary Berkheiser and Annette Appell founded the inaugural in-house
clinics at the law school in the fall 2000 semester. Their goal is to
provide law students intensive learning through real-world experiences.
“Clinical legal education is founded on the principle that adult
students learn best by doing rather than by just reading or listening
to lectures,” says Berkheiser, associate professor and director
of the Juvenile Justice Clinic. “Students learn how to be attorneys
here by doing the exact things they will do after graduation, but with
a big safety net.”
The Thomas & Mack Legal Clinic is a first step in establishing a center
for children and family law research and policy development at the Boyd
School of Law. “Some law school clinics offer a smattering of all
the different types of law practices out there,” Berkheiser says.
“The clinic committee decided we wanted to do something with an
overreaching theme and an integrated focus.”
The focus on children was an easy decision, given a vast community need.
Clark County’s rapid growth has taxed the social services infrastructure,
leaving the area’s poor, especially children, with few legal resources.
“We had to blaze a trail or two,” says Appell, whose research
focuses on the role of law and courts in family structures. “The
community has attorneys who have incorporated child welfare issues into
their practice, but there are few attorneys who are experts in child advocacy
issues. This is what we do. It’s not part of our practice; it is
our practice.”
The Child Welfare Clinic represents children in protection proceedings,
including termination of parental rights. It also helps adults like Smith
in guardianship cases. Among the clients in the first year were a number
of siblings who were placed in different foster homes. The clinic’s
law students obtained court orders to ensure the state arranged for all
of the children to visit each other.
“We usually represent children who entered the system because they
may have been abused or neglected,” says William Horne, a December
law school graduate who spent his final semester in the Child Welfare
Clinic. “These cases can get pretty complicated and emotional because
the children have a legal right to be with their parents. You want to
make sure the child is safe, but you also want to make sure the state
has met its burden when it tries to step into the situation.”
The competing rights of children – to be with their parents and
to be in a safe environment – have prompted ethical discussions
in the classroom, says professor Pamela Mohr, co-director of the Child
Welfare Clinic. “I challenge the clinical students to think beyond
the norm and think about both practical and legal consequences,”
Mohr says. “We try to emphasize that they are dealing with people,
not files.”
Smith says Lisa Willardson, the student-attorney who helped him become
James’ guardian, learned that lesson well. “Lisa and professor
Mohr explained every little bit to me – and not just how to get
through the paperwork,” he says. “As guardian, I would be
fully responsible for this boy and everything he does. They explained
the downside of what that could mean, too.”
In another case, the law students encountered a 9-year-old who could clearly
express exactly what she wanted. As her attorneys, the students were obligated
to represent those wishes in court. “But what if we didn’t
think what she wanted was right?” Mohr asks. “Students regularly
wrestle with ‘What are our duties to the children in terms of their
best interests versus their clear wishes?’ My students had to deal
firsthand with their ethical obligations as lawyers versus what they saw
as their moral obligations as people, and then work to find the right
solutions.”
In the Juvenile Justice Clinic, much of the legal work occurs outside
the courtroom. The student-attorneys here directly represent children
accused of crimes ranging from minor misdemeanors to felony burglary and
drug charges. In addition to representing clients in court, the students
learn to negotiate with district attorneys and social service providers
to get their clients much-needed treatment.
“Our work involves everything a lawyer on a criminal case would
do in terms of investigation, criminal rights, and determining how you
would attack the prosecution’s case. But we also look at the client’s
life and what’s going on with him,” Berkheiser says. “We
spend a lot of time on the disposition phase, which is like the sentencing
phase in an adult case. For us, the focus is not on helping clients who
admit to delinquent behavior ‘get off.’ We focus on what led
to the behavior and what services will help them overcome that.”
In the Juvenile Justice Clinic’s first year, student-attorneys negotiated
plea agreements with the district attorney to keep every delinquent client
at home or in a community-based rehabilitation center. In the spring 2001
semester, the student-attorneys successfully lobbied to prevent a teen-ager
accused of a serious crime from entering the adult justice system, where
he would not have access to therapy, special education classes, and other
state services for juveniles.
The law school plans to expand the clinic program into other areas of
family issues. In the fall, professor Joan Howarth will direct a new in-house
clinic to assist defense counsel with the sentencing phase of death penalty
cases. The students will review the failures of institutions that served
offenders when they were children – their families, schools, and
health-care providers – and other mitigating circumstances that
would prevent the imposition of the death penalty.
“Death penalty cases often are related to juvenile justice work,”
Berkheiser says. “Those who end up facing the death penalty most
likely have been abused and neglected, and they usually first entered
the justice system as juveniles.”
Another potential clinic may focus on immigration law as it relates to
children and families. “This may include political asylum work,”
Berkheiser says. “We may also work with people in danger of being
deported and victims of domestic violence who have an immigrant status.”
All services at the Thomas & Mack Legal Clinic are free. Mohr says
the clients, who generally have no other avenue for legal help and no
ability to pay a private attorney, receive exceptional attention. “Our
students have an average of three or four cases, whereas an attorney in
practice typically has more than 50,” Mohr says. “In addition,
the students are directly supervised by experienced attorneys. We ensure
everything that needs to get done, does get done. Really, each client
has the benefit of three minds – two students and a faculty attorney
– with diverse backgrounds and real-world experience.”
The law students work a minimum of 20 hours a week in the clinics in addition
to attending the classroom portion of the program. In the fall semester,
Child Welfare Clinic students logged 1,380 hours while Juvenile Justice
Clinic students devoted 1,750 hours to their clients.
Because clinic work is more time-intensive than a regular class, the school
limits participation to 16 students per clinic each semester. The professors
alternate a year in the regular classroom with a year in the clinic. Such
a system frees the faculty in their off-clinic year to continue scholarly
writing and to research policy issues while teaching in the classroom.
“We recognize that the clinical work feeds our writing and teaching,
and so much of our writing can feed our clinical work,” Berkheiser
says.
Appell adds, “The clinic experience is very helpful in teaching
students who are primarily from Nevada. I’m able to use examples
drawn directly from the system here and contrast that with the issues
we’re discussing in class.”
As an outgrowth of that work, both clinic students and faculty are having
a hand in forming legal policy in Nevada. At the same time, the Boyd School
of Law, the only law school in the state, offers local governments another
resource to call upon.
Judge Hardcastle appointed the Child Welfare Clinic as “amicus,”
or “friend of the court,” in four cases. As such, clinic faculty
and students filed legal briefs to help determine the limits of authority
between the courts and the Nevada Division of Children and Family Services.
Students and faculty in the Juvenile Justice Clinic also teamed with state
legislators to draft and pass legislation regarding a juvenile’s
right to an attorney. As a result, Nevada now provides legal counsel to
all juveniles facing felony charges before they plead guilty or not guilty.
In the past, attorneys were appointed only after the children denied the
charges.
Leah Ayala, who is in her final year of law school, and other clinic participants
currently are working to change the state’s wardship policy. “When
a child is adjudicated in juvenile justice, he becomes a ward of the court
– it’s like being on probation,” Ayala explains. “But,
unlike on the adult side, the wardship isn’t automatically discontinued
after that six-month probation. And that’s just wrong. A small infraction
could become really serious, just because that wardship is still –
erroneously – in effect.”
The passion that students like Ayala show for the issues is what makes
the legal services above par, says Audrey Fetters, administrative director
of the clinical program and a veteran social worker of the juvenile justice
system. “One good thing about new attorneys is they bring a fresh
perspective,” Fetters says. “The clients certainly benefit
from the students’ enthusiasm, and having worked for so long in
the system, I know how jaded a person can get.”
Fetters’ experience with the local court system will be complemented
this year as the program adds a social worker to assist with clinic cases
and with interdisciplinary research. Law school faculty and members of
other UNLV departments, including social work, special education, and
criminal justice, formed a committee to tackle community issues from all
angles.
“A lot of the kids we see have mental and emotional development
problems that feed into their delinquent behavior,” Berkheiser says.
“By taking an interdisciplinary approach, we’re serving the
client by focusing on a holistic solution to both their legal and non-legal
problems.”
Still, at the heart of the clinical program is the school’s primary
goal: to turn UNLV’s law students into community-minded legal professionals.
“In even the best classes, the teaching is still abstract,”
Appell says. “When students are involved in a real case with the
real files, they understand in a much deeper way how things work and why
each step is important. Sometimes students can recite a particular legal
theory, but it doesn’t always click until they’ve actually
experienced it.”
Horne, the recent law school graduate, felt that click the first time
he stood up in court as a student-attorney. He represented two young children
in a hearing to determine if one child was abused. Their mother had no
attorney.
“I believe the hearing was unfair to the mother of the children,”
he says. “This really highlighted to me what I’ve been taught
throughout my law school career: the proceedings are not always fair,
particularly for the poor and uneducated.”
Yet, Horne’s most gratifying law school experience came at the same
time. “My first thought was that I was woefully unqualified to spar
against the seasoned DA that would be present during the proceeding,”
he says. “But I stood toe-to-toe with the DA and the hearing master
and held my own.
“That gave me a tremendous amount of confidence. I realized that
I still have a great deal to learn, but I have gathered, through my legal
education, all the tools necessary to serve my future clients successfully.”
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