Clinical Law Review
Lawyers know how to tell a good story and are expected, encouraged, and even ethically required to use that skill on behalf of their clients. More and more, lawyers and legal academics are now using their clients' stories to advance goals that go far beyond achieving a client's objectives: exposing inequities with regard to access to justice; educating the public about the functioning and limitations of the legal system; raising the quality of lawyering; and improving our system of legal education. Unfortunately, the increase in the use of case histories to achieve such laudable goals has not been paired with an increase in the self-reflection and deep analysis required to ensure case histories are used in a responsible and ethical manner. In this article, we identify the benefits to the legal profession and the public of the use of client stories in legal scholarship and highlight the ethical issues raised by such publication. It is the interplay between these values - the improvement of the legal system versus the protection of client confidentiality-that is the focus of this paper. We begin by describing how case studies are invaluable to the development of the law, the improvement of the practice of law and the legal system, and advances in legal education, but also identify how the restrictions of the ethical rules quite possibly have a chilling effect on the publication of those studies. We then describe a survey conducted of scholars who have included case histories in their publications and the methods they used or did not use in addressing these issues. Finding that the approach by scholars has been troublingly inconsistent and often cursory, we examine how the medical and mental health professions approach the ethics of publishing patient and client case studies. Based on the practices in these professions and the legal rules of professional responsibility, we propose a detailed protocol to be used both by scholars and scholarly journals to address the ethical issues in publication of client case studies.
Theo Liebmann and Stefan H. Krieger,
The Elephant in the Room in Clinical Scholarship: Ethical Guardrails and Case Histories, 29 CLINICAL L. REV. 135
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/1387