BYU Law Professor Carl Hernandez and several law students were instrumental in changing the Third-Year Practice Rule with the Utah Supreme Court. The change extends greater latitude to law students to practice law after their first year of law school. Professor Hernandez and the law students proposed the changes and provided significant research. The Court then adopted the proposed amendments to Rule 14-807 of the Rules Governing the Utah State Bar.
The genesis for the change came in the fall of 2013. Professor Hernandez taught a class called Government and Legislative Representation, where students learn how to draft legislation and write in a government environment. Students Andy Gonzalez, Austin Martineau, and Jessica Marinello worked on the Third-Year Practice Rule as their class project. As they researched, “they came to understand that Utah’s rule was the most restrictive law student practice rule in the nation,” recalled Professor Hernandez, which put Utah law students at a serious competitive disadvantage with law students in other states as far as developing professional lawyering skills.
Previously, the rule only allowed a student to practice in civil, administrative, and misdemeanor cases if there was a stipulated agreement between both parties as well as both attorneys allowing student participation. There were no provisions for students to counsel, give advice, negotiate, or otherwise engage in the practice of law. Further, students could not make personal appearances outside the presence of the supervising attorney unless it was for an uncontested divorce case.
Now, students can practice in all cases, including felony cases, and have the opportunity to appear outside of the personal presence of their supervising attorney in certain circumstances. A student needs to have taken an evidence class if he or she is going to appear in any evidentiary hearing, and needs to have taken a class in evidence as well as criminal procedure to appear in a criminal evidentiary hearing. Now, a student who has completed the first year of law school can engage in the practice of law in limited circumstances.
The rule before the change limited Utah law students’ ability to engage in professional skills training. Whereas in other states, students have been able to exercise their legal skills in the courtroom.
Not only does this rule change enhance the training of future lawyers, but it also provides greater access to the legal system for individuals who otherwise might not be able to pay for services. Now, lawyers can team with law students to provide services that are easily accessible and are very effective.
“We believed that a more permissive rule would allow students to have more practical legal training while promoting pro-bono services and increasing support to individuals of limited means,” Gonzalez said.
In the wake of this change, BYU Law is working to enhance its clinical alliance programs so that students who are engaging in related classes can take full advantage of this new rule. In addition, BYU Law is working on a prosecution and defense clinical alliance which will allow students to go into courtrooms and use this rule to engage in trial advocacy. The current and future clinical alliances will “allow students to more fully engage in terms of interviewing, counseling, and providing legal advice to members of the community,” remarked Professor Hernandez. “It’s important for students to see that through these clinical alliances and these professional skills courses they can have real impact on our community. That to me is the narrative.”
Although the new rule is still in the comment period, it is currently in effect, and students are now able to practice under the rule. “I am excited for the opportunities that will now be available to students throughout the state,” Gonzalez said. “I am confident that the newly adopted rule will allow law students to gain practical practical experience while ensuring greater accessibility to the legal system.”