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State of MichiganIn the Circuit Court forThe County of Macomb

People of the State of Michigan,

vs. Circuit Court Case No.95-2424-FH

Dwayne Reid Providence,Defendant.

____________________________/

Defense Brief in Opposition to

The Testimony of Students Japassme and Gudgrayed

I. IntroductionWhat would the United States adversarial process would be like in the absence of

the coveted attorney-client privilege? Would you feel comfortable going to a lawyer that

did not have any hands-on experience throughout their educational career? The

answers to these questions hold the future of the functionality and effectiveness of the

legal profession.

The case before us is one that requires redefining the scope of the attorney-client

privilege and addressing the extent of its coverage. Many lawyers would agree that it

would be difficult to do their job smoothly without the assistance of paralegals,

administrative assistants, the office manager, and the law student intern. The concept

of the attorney-client privilege is to give clients the peace of mind to confide in their

lawyer and aid their lawyer in getting ample information to represent the client

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successfully. We then arrive to the most important question: Are the law students that

work closely with a lawyer throughout the course of the clients representation covered

under the attorney-client privilege?

II. The Attorney-Client Privilege DefinedAccording to Mich. Comp. Laws Ann. 767.5a (2)(West), Any communications

between attorneys and their clients. . .are hereby declared to be privileged and

confidential when those communications were necessary to enable the attorneys. . .to

serve as such attorney.

Although the language in the statute does not explicitly mention staff or

subordinates of an attorney as being covered by the confidentiality privilege, the Court

should interpret the statute to include them. More likely than not, legal assistants and

clerks, many of which are law students, aid lawyers in research, meet with clients to

gather information and compile them for the attorney. This immensely helps the

attorney while giving students experience in the legal field. Although there is no clear

precedent with respect to the issue of the applicability of the attorney client privilege to

law students, the facts clearly indicate that the students were closely working with Mr.

Hutz on the Defendants case and were given responsibility over confidential and

privileged information.

III. Michigan Court Rule Allows Law Students to Act as LawyersIn the case at hand, we have two students, Ivana Gudgrayed and Heywood

Japassme (the Students) that are working close Mr. Hutz, a local defense attorney

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with the Not-So-Guilty Project, aiming to prove that the Defendant was wrongly

convicted through DNA testing. Having done most of the research and correspondence,

the studentsfiled a motion for new trial and relief from judgment.

The students are qualified and eligible students from University of Detroit Mercy, a law

school approved by the American Bar Association, and are allowed to carry out tasks

outlined in and pursuant to MI R ADMIN MCR 8.120. This court rule authorizes students

to advise clients and to negotiate and appear on the clients behalf in all Michigan

courts, while working under the supervision of a state bar member though law school

clinics and various programs. Students are allowed to advise an indigent person or

negotiate on the person's behalf and appear in court without the presence of a state

bar member. These students are permitted to carry out legal tasks that a lawyer that

has been admitted to the bar would do.

The drafters of the Michigan Court Rule 8.120 intended to allow law students that

are working under the supervision of a lawyer to be covered by the attorney-client

privilege just as a lawyer would. The drafters knew that students, while dealing with

real cases, would be handling confidential client documents and communications. This

court rule addresses the problem of opposing parties deposing or adding law students

from law clinics or internships to the witness list, by authorizing students to act as

lawyers in these situations. Students that are aiding in the legal process pursuant to

this court rule should be seen as lawyers for the purpose of the attorney-client

privilege.

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The Court should not penalize these future lawyers for observing, participating in,

and gaining essential experience in the legal field. Ordering them to testify about their

work and confidential communications would be unethical and detrimental to the legal

process. After all, how can they become experienced enough and qualified to

exclusively deal with clients as a future bar member when they have not had the proper

hands-on training under a practicing lawyer. These legal programs play a key role in the

development of essential skills of these future lawyers. Therefore, the attorney-client

privilege should apply when the students are handling cases and confidential

communications.

IV. The Students Work Is Covered Under The Attorney Client PrivilegeIn Grubbs v. K Mart Corp., 411 N.W.2d 477 (Mich. App. 1987), theCourt held that

the attorney-client privilege applies to communications and correspondence that takes

place between a client and his attorney as well as communications made through their

respective agents or assistants. The law students in our case are effectively acting as

the Defendants respective agents along with Mr. Hutz. The purpose of the privilege is

to facilitate communications between the client and legal counsel. SeeParker v.

Associates Discount Corp., 205 N.W.2d 300 (Mich. App. 1973). Without the aid of the

law students, this case would be likely to fail. The Defendant has trusted the students,

as his legal counsel, with facts and information. The attorney client privilege should

apply here.

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In Matter of Fischel, 557 F.2d 209 (9th Cir. 1977), the Court held that attorney-

client privilege includes documents and research, prepared by attorney or by attorneys

agent or assistant of the attorney for purpose of advising client, which would tend to

reveal clients confidential communications. The law students have been dealing with

confidential information and communications since the start of their involvement with

the case. Mr. Hutz has also relied heavily on their help, through their tedious legwork,

in representing the Defendant.

The attorney-client privilege is not affected or waived where a law firm shares

privileged information with its subordinates such as law clerks and student interns. See

Jack B. Weinstein, Margaret A. Berger, Weinsteins Federal Evidence 503.07[1] at

503-26 (2d ed. 1997). The attorney-client privilege protects communications made to

an attorneys assistants, student interns, and other agents employed in rendering legal

services. It has never been contested that the privilege protects communications to the

attorneys clerks and his assistants. Since the assistance of these agents is valuable to

the attorneys and the communications of the client is often committed to them by the

attorney or by the client himself, the privilege must include all the persons who act as

the attorneys agents. See8 J. Wigmore, EVIDENCE 2301 at 538 (McNaughton Rev.

Ed.) (1961)

Subordinates of attorney include paralegals, secretaries, and student law clerks who

work directly under the supervision of the attorney in the rendering of legal advice or

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assistance will come under the attorney's blanket of protection.In Dabney v. Inv. Corp.

of Am., 82 F.R.D. 464 (E.D. Pa. 1979)the Court found that the:

Attorney-client privilege applies only to members of bar or their subordinates; protectedsubordinates include any law student, paralegal, investigator or other person acting as

agent of duly qualified attorney under circumstances that would otherwise be sufficientto invoke privilege; but no privilege exists for law student who performs duties ofattorney, is regarded and treated as attorney, and is made privy to certain confidentialinformation that would have been disclosed only to an attorney, where law student isacting on his own.

In Reed Dairy Farm v. Consumers Power Co., 576 N.W.2d 709 (Mich. App. 1998),

the Court looked into the extent of applying the attorney-client principle to paralegals

holding that:Our first inquiry is whether the paralegal was an agent of defendant, acting in arepresentative capacity and authorized to speak on its behalf. We are not persuaded thatthe paralegal, who merely signed his name to the interrogatories, had first handknowledge of the answers to which he affixed his signature, nor that he was privy to theconfidential communications in which defendant engaged with its attorney. Moreover,there is no indication that the paralegal participated in trial strategy or preparation to theextent that he revealed confidential information to counsel on behalf of defendant.Therefore, although he may be an employee of defendant, we do not find that theparalegal was defendants agent, authorized to speak on its behalf. Id., at 121- 122.

It is obvious in Reed Dairy Farm why the paralegal was not covered under

the attorney-client privilege. The paralegal was not involved in the confidential

communications nor was he authorized to do so. Our case is much different.

Pursuant to court rule, the students were actively involved in case, appearing on

behalf of the Defendant, doing case research, corresponding with the Defendant

and performing tasks that lawyers would be doing. The law students have first-

hand knowledge and can be viewed as an agent of the Defendant.

Rule 5.3 in the Michigan Rules of Professional Conduct says that

With respect to a nonlawyer employed by, retained by, or associated with a lawyer:

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(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in

effect measures giving reasonable assurance that the person's conduct is compatiblewith the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall makereasonable efforts to ensure that the person's conduct is compatible with theprofessional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violationof the rules of professional conduct if engaged in by a lawyer if:(1) the lawyer orders or, with knowledge of the relevant facts and the specific conduct,ratifies the conduct involved; or(2) the lawyer is a partner in the law firm in which the person is employed or has directsupervisory authority over the person and knows of the conduct at a time when itsconsequences can be avoided or mitigated but fails to take reasonable remedial action.

The comments to this rule explain that

Lawyers generally employ assistants in their practice, including secretaries, investigators,law student interns, and paraprofessionals. Such assistants, whether employees or

independent contractors, act for the lawyer in rendition of the lawyer's professionalservices. A lawyer should give such assistants appropriate instruction and supervisionconcerning the ethical aspects of their employment, particularly regarding the obligation

not to disclose information relating to representation of the client, and should beresponsible for their work product. The measures employed in supervising non-lawyersshould take account of the fact that they do not have legal training and are not subjectto professional discipline.As does Rule 3.8, this rule may in certain situations impose on a prosecutor an obligationto make reasonable efforts to assure that a defendant's rights are protected. Of course,not all of the individuals who might encroach upon those rights are under the control ofthe prosecutor, but where this rule applies, the prosecutor must take reasonable andappropriate steps to assure that the defendant's rights are protected.

It is important to note that the Michigan Rules of Professional Conduct recognize the

role that students or non-lawyers have in aiding lawyers when representing client. The

rule outlines the lawyers duties to inform the non-lawyer assistants to be mindful of the

professional obligations of the lawyer. They are also advised about non-disclosure of

confidential client communications. The court determined that the Federal Rules of

Evidence 501 is extended to safeguard privileged communications and that this

privilege was extended to a lawyer's representative. SeeIn re French, 162 B.R. 541

(Bankr. D.S.D. 1994).

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Mr. Hutz has very much relied upon the work that was performed by the students in

preparation for the litigation of this case, just as an attorney would rely on a law clerk

or a paralegal in his or her law firm. The students did most of the legwork on the case.

This included traveling to meet and interview Mr. Providence, researching the old court

file, reading through the volumes and volumes of transcripts, interviewing the alleged

witnesses, and conducting legal research. Under MI R ADMIN MCR 8.120, the students

were permitted to appear and argue a bond motion on Providences behalf, as well as a

motion for funding of a scientific expert. They were, in effect, acting as lawyers.

Providence confided in them and acted as if they actually were his lawyers. Many courts

have recognized the instrumental role that law students play in the legal process,

whether on the front lines or behind the scenes. This Court should support the

experience and hand-on knowledge that these law programs give to the students and in

doing so apply the attorney-client privilege in this case.

V. ConclusionDefendant respectfully requests that the Court excludes testimony of the students in

light of the facts and rule of law outlined in this brief.

Respectfully Submitted,

Attorney 315 for Defendant, Dwayne Provience