Bob Ambrogi posts about an ambitious project by Boston College law student Anusia Hirsch, who has decided to blog about her experience at the law school Legal Assistance Bureau. While there’s nothing new about another law student who feels that her transitory feelings are worthy of telling the world, or that her insights are inherently meaningful, Hirsch’s approach is different.
A second-year student at Boston College Law School is intentionally doing something that most legal bloggers know better not to do: blog about a client. A key difference here is that the student, Anusia Hirsch, is doing this with the full consent and cooperation of the client, who reads and approves each post before it is published, as well as of her supervising attorneys.
Hirsch started the blog, bclabstudent, in August to chronicle her experiences working at the BC Law Legal Assistance Bureau in Waltham, Mass. She wanted the blog to serve as a guide to other law students considering working at LAB. She soon realized that the most important aspect of LAB was her work with clients, so she wanted to blog about that.
Hirsch decided that her blog would tell the story of the clients she encountered at the LAB. How this serves as a guide to anyone isn’t exactly clear, but clearly using this blog to reveal client confidences is a world apart from the usual blog chronicling a law student’s feelings as she grows into the profession.
Her supervisors at the LAB obviously realized that this wasn’t within the scope of what lawyers do, but rather than kill the idea, sought to find a way for Hirsch to reveal confidences without violating ethical proscriptions. This is what they came up with:
They agreed on this plan by which the client consented to the posts and approves them in advance. Names and identifying information are changed to protect identities.
A spokesperson for BC Law says this is the first law student blog that includes sanitized yet open discussions of client experiences in a sanctioned format such as this.
Essentially, this shifted the responsibility from lawyers/law student to client to determine whether privilege should be waived. Technically, it should suffice, as the privilege belongs to the client, and the client is entitled to waive privilege. Technically. Yet, these scheme is troubling on two levels.
First, to what end? This blog clearly doesn’t serve the interests of the client, who has come to the Boston College LAB for help, and ended up a public guinea pig so that a law student has something to write about. Does this smack of using the poor and needy, the ones for whom clinics are intended, as test cases or, at best, educational tools as a price of representation? It’s unclear whether the clients will feel pushed into agreeing to give up privilege, and it may well be that they are told in no uncertain terms that they can refuse to play along and there will no consequences whatsoever.
The most that can come of this is that it provides fodder for Hirsch, a second year law student, to express her feelings about these clients. So what? Hirsch is learning herself, and neither her thoughts nor feelings offer much insight. She has no insight to give. She’s a second year law student. If anything, the only insight gained is how much a student has yet to learn. Is this worth the sacrifice of a client’s confidentiality?
Worse still, this reflects an effort to find something new and different, provided one doesn’t mind the fact that the pedagogical lesson is that one of the most important aspects of practicing law, the protection of client confidences and putting the interests of a client ahead of one’s own, can be tossed to the wind in order to come up with a new concept in blogging.
“This is a big deal,” Hirsch says in her video. “We are testing new waters.”
It is a big deal, but she is not “testing new waters,” She is ignoring a foundational duty of a lawyer so a second year law student has something cool to write about on the internet.
As for the clients, they are unlikely to appreciate what it means to give away their privilege. Even though their names may not be fully revealed (Hirsch does use the first name, but not the last), it’s more than enough to reveal to their identity to anyone involved in a case. Moreover, once a client has waived privilege, they waive it for all purposes. They can’t change their mind later, when something embarrassing, significant or critical happens, and reclaim it.
Do clients appreciate what they’re giving up? Rarely, and it’s part of the advice that an attorney would provide so they can appreciate the importance of their decision. Are they getting this advice from a second year law student? Are they getting this advice from a disinterested counselor? Are they getting this advice at all?
Even if this is handled with the utmost discretion and circumspection at BCLAB, will the next law student who decides to reveal all be similarly cautious, or will this become the new, cool trend for law students to reveal client confidences?
I can appreciate, better than most, how difficult it can be to write about something that is new and interesting on the internet, and why Anusia Hirsch is reaching for something different. But I can also appreciate that the trade-off of client confidences for Hirsch’s insights is a rotten deal. And I can similarly appreciate how this can spiral out of control and do serious harm to the very people these clinics exist to serve.
There is a pedagogical lesson to be learned here, that law students should be taught to appreciate the importance of protecting client confidences. The first lesson is that there is nothing that pops into their heads that’s worth giving away a privileged communication.
This blog is a bad idea, and it should not be allowed by Boston College Law School regardless of whether they’ve found a way to circumvent ethical rules. It’s just a really bad idea.
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This post makes me sad.
SHG, I appreciate that you thought the blog was worth writing about. Looks like you found something new and interesting to write about on the Internet. However, I have some factual clarifications:
1. The entire name is changed. The client’s first name is not Sarah. Nor is Sarah any part of her name.
2. The client was excited to share her story. She was not a public guinea pig.
3. You mention “once a client has waived privilege, they waive it for all purposes. They can’t change their mind later, when something embarrassing, significant or critical happens, and reclaim it.” In doing so, you ignore a foundational rule of the blog. Only a closed case could be mentioned. I spoke about one client and that client’s case was closed. It was a delayed time blog. I never spoke of events as they were happening. And I never discussed an open case. So, nothing embarrassing, significant or critical could happen in the case. It was closed.
4. As was stated in one of my videos, the blog was to serve as a guide to incoming clinic students. Not practicing attorneys. I was not offering insight to attorneys, or to anyone for that matter. I was trying to give incoming students a “heads up.” My hope was that having this information would help a new student provide better service to the client because they would be better prepared for the client interview. It was never about my “insights,” it was about my experience and how incoming students would likely undergo similar ones.
And, Dan, I’m curious, why does this post make you sad?
What saddens Dan, and me as well, is your utter lack of grasp of what you’re doing. We recognize you’re a law student, and lack the discretion or experience to appreciate what you’re doing. That you are playing with other people’s lives — you, a law student, who knows nothing and understands even less — so that you can have a blog is a shame. But we don’t expect you to understand why, as you’re only a law student. That your professors allow this is an absolute disgrace.