Pitt Elder Law Clinic: Building a Bridge to Practice

Why an Elder Law Clinic at Pitt Law?

Recognizing the need to bridge the gap between law school and the profession, Pitt Law’s clinical program was established in 1987. The clinics provide a capstone experience in the law student’s journey. Through the supervised representation of clients, students advance their understanding of their professional identity—both the skills required to be successful attorneys and their special obligation to society. Founded in 1990, the Elder Law Clinic was the second in-house clinic offered by Pitt Law. It was established in response to the unique demographic characteristics of Allegheny County, which is widely acknowledged as having an unusually high concentration of older adult citizens, and to the then emerging field of elder law. Pennsylvania may have been ahead of the demographic tidal wave, but the rest of the country is fast catching up, making elder law an important and relevant practice area. Elder law was a natural fit for Pitt Law as Professor Lawrence Frolik, one of the founders of elder law as a discrete doctrinal area, was on its faculty, and the Clinic was integrated into the law school’s certificate programs, which allow students to focus their area of study. Pitt’s Clinic is currently one of only approximately 12 law school clinics dedicated to elder law, and a number of its graduates have become leaders in the Pennsylvania elder law bar.

Practical considerations played a role in the Clinic’s creation. Encouraged in part by the availability of U.S. Department of Education Title IX grants, Pitt’s Elder Law Clinic was founded during a national golden age of clinic creation. When this federal funding was “zeroed out” in the late 1990s, the Pitt Law clinical program received bridge funding support from the Commonwealth of Pennsylvania and various private foundations for several years. In 1997, the Pennsylvania Supreme Court Interest on Lawyers’ Trust Accounts (IOLTA) Board began to support law school clinical programs, including Pitt’s Elder Law Clinic. IOLTA support of Pennsylvania law school clinics continues today and is key to the stability of many Pennsylvania programs. Additionally, prominent Pitt Law alumni have provided significant support. In 2004, the Sikov family made a gift to name the Elder Clinic space, which is now known as the “Sikov Elder Law Clinic.” In 2013, alumni David and Dawne Hickton made a substantial gift to endow Pitt Law’s clinical program and name an endowed clinical chair: the Gloria McDermott Hickton Professor of Elder Law. These gifts grew out of a genuine interest in elder law as a specialized field of practice: Carol Sikov Gross is an acknowledged leader in the Pennsylvania elder law bar and Dawne Hickton is a former director of Pitt’s Elder Law Clinic.

The Pitt Law Elder Law Clinic: Structure

Course Structure

A law school clinic is guided by two important goals that sometimes operate in tension: the education of law students and the provision of legal services to underserved populations. This latter goal includes a social justice mission of promoting the profession’s obligation to provide pro bono services. Because it is situated within a larger educational institution, a clinic prioritizes the educational experience of its students over the concurrent goal of increasing access to legal services, distinguishing its mission from that of legal service organizations. Clinic design must consider ABA accreditation standards and state student practice rules, and clinic faculty must carefully consider the structure of the class and the scope of its practice to maximize pedagogical objectives. Ideally, the scope of the clinic practice incorporates the needs of the local community and gaps in legal services. Faculty at Pitt Law designed the Elder Law Clinic to consider all these governing, sometimes competing, interests.

ABA accreditation standards, which focus on the student’s educational experience, require students to complete a minimum of six credits of experiential learning, which may include client representation through clinics. Standard 304 requires clinic courses to include a classroom component that integrates doctrine, skills, and legal ethics; engages students in the performance of professional skills; provides multiple opportunities for performance; and provides opportunities for self-evaluation.

State student practice rules permit students to provide legal services without running afoul of the unauthorized practice of law rules. The Pennsylvania student practice rules are typical. They require a student to have successfully completed a minimum of three semesters at an ABA-accredited law school and be certified by the dean to be in good standing. The rules also provide that the student cannot request or receive compensation from the client, limit representation to low-income clients, and allow students to appear in court and “prepare papers” on behalf of their clients. The rules also require the supervising attorney to take personal responsibility for the supervision and guidance of the student and ensure the student is adequately prepared.

Taking all of these requirements into account, Pitt’s Elder Law Clinic is structured as a one-semester, seven-credit clinic with no prerequisites (intended to lower the barrier to participation). It enrolls up to 16 students each year, and students dedicate a significant portion of their time to Clinic work, which constrains them from taking more than two additional competing courses. Clinic credit hours are allocated between seminar and “field work” components. Seminar focuses on core areas of elder law: advance planning for incapacity (both financial and health), guardianship, wills, supplemental and special needs trusts, Medicaid eligibility for long-term care, and ethical rules. This doctrinal introduction is provided in a practical context designed to introduce students to basic lawyering skills, including interviewing and counseling, fact investigation, direct and cross-examination, and analysis of lay and expert testimony. These lawyering skills are all within the realm of the types of cases they are expected to handle in “the real world.” Through role-playing, in which they practice these skills and receive feedback in the low-stakes environment of the classroom setting, students gain confidence prior to encountering real clients. The Clinic conducts weekly case rounds, where faculty facilitate discussion about pending cases and students engage in peer-to-peer reflective learning as they present issues arising from cases, discuss issues they find in common, and critique their performance in client interactions. Case rounds have been described as a “signature pedagogy” in clinical legal education.

Fieldwork is where the student transitions to a lawyer. Students must spend a minimum of 104 hours in client work—about 8–10 hours per week during the 14- to 16-week semester. The Clinic is a part-time job, and students construct a work schedule around their other commitments and meet weekly with the faculty supervisor for individual feedback and oversight of their client work. These meetings allow the supervisor to gauge the student’s understanding of their cases, provide directive or nondirective guidance, and guide students in effective case management. Clinic students can expect responsibility for four to six cases over the course of a semester, including at least one guardianship case, with the remaining estate planning, Medicaid counseling, or other matters. The Clinic makes every effort to provide students at least one opportunity to appear in court and multiple opportunities to engage in drafting legal documents and providing legal advice. The caseload is kept intentionally low so students can take a deep dive into the substantive law, master and understand the documents they draft, reflect on any ethical issues, and assess critically their performance.

Central to all coursework is engagement with and application of the ABA Model Rules of Professional Conduct. The four main ethical issues that arise in an elder law practice (client identification, confidentiality, conflicts, and competency) are examined in both the classroom setting and the representation of clients. Students also make educational presentations to older adults residing in subsidized senior housing on a variety of topics, including fraud avoidance. The Clinic faculty hope through these experiences, students will be encouraged to pursue a career in elder law, whether in the public interest or in private practice. At a minimum, students will leave the Clinic with a greater appreciation of the challenges that may arise in the representation of an older adult and the resources available locally.

The clinical supervisor plays an important supportive role closely supervising students’ work while giving them sufficient room to take ownership of their cases in all stages of development. The supervisor attempts to balance competing demands of letting students learn from experience (including making some mistakes) with their supervisory duty to ensure the client is being provided competent representation. The supervisor may face situations in which they must intervene to protect the client but ideally will take a back seat in the representation, thereby recognizing “[b]efore graduation, the law student should have the opportunity to see the world through the eyes of a practicing attorney, facing the full range of ambiguities and complexities that arise in that role and being the one to identify choices and then choose among them.” Clinic faculty believe a student is best served by feeling the weight of responsibility inherent in representing a client. Indeed, a student who wakes up in the middle of the night worrying or thinking about the case arguably has successfully shouldered that responsibility.

Scope of Practice: Pedagogical Considerations

The scope of a clinic’s practice is an important component of clinic design. Case selection may be affected by a multitude of factors: funding streams, expertise/interest of faculty members, staffing, whether a clinic is a one- or two-semester commitment, synergy with other faculty members or programs, and learning objectives. Looming over all this is the goal of professional identity formation: teaching students “what it means to think, act, and feel like a lawyer,” with the Clinic serving as a culminating experience that integrates students’ prior exposure to doctrinal law, research and analysis, and other professional skills training.

A chief pedagogical and professional identity goal of the Pitt Elder Law Clinic is allowing students to take ownership of their cases so that they understand the very real challenges of providing competent representation and nurturing an attorney-client relationship. The one-semester clinic structure presents a challenge—how can a student gain sufficient competency and develop rapport with a client within just 14 to 16 weeks? The Clinic answers this question by concentrating its representation in the previously mentioned core areas where cases generally can be resolved over the course of a single semester, thus giving students maximum opportunity to take primary responsibility for their assigned cases from start to finish rather than acting as a law clerk to the faculty “partner.” In our experience, students and clients have greater satisfaction with the process when one student or team of students is responsible for the whole case rather than just a piece of it. Guardianship cases can be filed and heard within a single semester. Advance planning for incapacity and “simple estate planning” provide students an opportunity to learn by repetition, allowing for deeper learning through repeated exposure to an area of practice. By handling multiple estate-planning cases over the course of the semester, students learn how to effectively interview their clients, identify relevant facts, engage in other fact-gathering, explore how forms can be modified to meet individual circumstances and goals, and how to competently conduct a document signing.

Guardianship and advance planning/estate planning intersect in significant ways with a core aspect of elder law: Medicaid eligibility for long-term care. Students regularly counsel guardianship and estate-planning clients on financial eligibility and application rules for Medicaid. Students advise their clients on how the scope of a power of attorney can impact an agent’s ability to achieve Medicaid eligibility for the client or protection for a community spouse; specifically, how gifting might negatively impact a Medicaid application or how a gifting power might provide the ability to avoid estate recovery and preserve Medicaid eligibility in cases of disabled or caregiving children. Students advise wills clients about the inclusion of a supplemental needs trust to preserve Medicaid eligibility for disabled beneficiaries. Students thus have repeated exposure to this complex area of law in different contexts.

In “short-term” one-semester cases, clients work closely and directly with the students and often do not meet the faculty member until late in the representation. This accomplishes the goal of allowing the attorney-client relationship of trust and confidence to develop between the client and student rather than encouraging the client to seek the assistance of the “real” lawyer in the form of the professor. In cases with horizons longer than one semester, faculty by necessity take a more prominent role when students are not available during school holidays, summer recess, and the transition time between semesters. There is a greater reliance on the faculty during those periods of student unavailability.

Scope of Practice: Community Interests Served

The Clinic’s practice area helps meet the elder justice needs of the community. Clinic clients are referred from social service and aging agencies, hospitals, local courts, and former clients. The Clinic’s guardianship services target petitioners seeking to assist older family members or older adults seeking a voice in decisions affecting an incapacitated adult child. While recent attention to guardianship practice may suggest justice is served primarily by focusing representation on the alleged incapacitated person, the Clinic’s experiences recognize guardianship as a last resort. First and foremost, the Clinic’s guardianship services involve intensive counseling on alternatives to guardianship and ways to seek the narrowest possible guardianship to accomplish the client’s goals and advance the welfare of the alleged incapacitated person. Cases have included guardianships to help obtain or preserve Medicaid eligibility, provide consent for medical treatment when no other decision-making option is feasible, and assist with the citizenship process for legal refugees. The Clinic also helps court-appointed guardians with their annual reporting obligations, thereby contributing to the welfare of the incapacitated person, and assists older adult guardians with planning for a seamless transition of decision-making upon the guardian’s incapacity or death. The Clinic’s guardianship services meet a critical gap in services: By statute, the county funds the cost of court-appointed counsel for the alleged incapacitated person, but no such payment mechanism exists for low-income families who need to resort to guardianship. No other local service provider regularly takes on these cases, and the Clinic often is the only option for such families who need pro bono services.

Through advance planning for incapacity, the Clinic focuses heavily on guardianship prevention to preserve client autonomy in the future. It avoids the “pop-up” model of services and instead engages in discussion and education with the client throughout the semester about important decisions embedded in powers of attorney. Extended contact allows students to assess client capacity and undue influence and build trust, thus fostering greater candor by the client. The “simple wills” drafted for our clients may include a supplemental needs trust so that a disabled beneficiary is not rendered ineligible for needs-based government benefits through the receipt of a modest inheritance. For clients who still reside in the community, these wills provide a way to avoid future problems of a “tangled title” to real estate by avoiding intestacy, helping contribute to the stability of neighborhoods. All these cases provide the opportunity to counsel and assist clients with the complex law and regulations regarding Medicaid eligibility for long-term care.

Benefits to Students

Participating in the Elder Law Clinic provides students with a range of tangible benefits. Novice lawyers who often are unfamiliar with working in a professional environment, Clinic students get their first exposure to everyday lawyering tasks—drafting professional correspondence and legal documents, speaking on the telephone in a business environment, documenting time spent on a case and documenting the file, establishing effective time management, and seeking supervision. In the process, they also engage in deeper learning about what it means to be a counselor/advisor and how to develop the relationship of trust and confidence at the heart of the attorney–client relationship. Equally important, students become more confident about their ability to be life-long learners attuned to the special needs of older clients.

Through real-world work, Elder Law Clinic students develop many foundational skills necessary for career success. These include communications, professionalism, technological aptitude, litigation, transactional practice skills, and emotional and interpersonal intelligence. The Elder Law Clinic is heavily client-oriented, and this is often the most important reason students choose to enroll. Over the course of the semester, a student will be responsible for four to six clients, conducting multiple interviews with them and counseling them about the pros and cons of proposed courses of action. Clients will rely on them for legal advice, requiring students to project confidence and competence and to translate often confusing legal concepts. Through this experience, students begin to understand the complicated dynamics of client interaction and learn strategies to effectively communicate. Clinic students engage consistently with the Rules of Professional Conduct, including rules governing representing clients with a disability and, because of the not infrequent involvement of other family members, the challenges of answering the question, “Who is the client?” Students learn to be responsive to client inquiries, communicate proactively with clients, and understand what it means to guard client confidence. Additional issues of professionalism students encounter include knowing when to seek and how to prepare for supervision, taking responsibility for one’s actions, and cultivating good work habits so that cases do not languish.

By drafting wills and powers of attorney, correspondence, memos to file, and pleadings, students learn the value and shortcomings of forms, how to write in a professional voice, and how to write for an intended audience. Guardianship cases offer a sturdy vehicle for an initial court appearance, in which the student is responsible for knowing their case inside and out. While focusing on the basics of where to stand, how to address the court, and how to present their case, students also learn to think on their feet when responding to the court’s questions.

The Elder Law Clinic also introduces students to the nuts and bolts of practice management, including billing and cloud-based management systems for tracking and documenting cases through the all-important calendaring function. Clinic students utilize various platforms for virtual meetings with clients and appearances at remote court hearings. These are opportunities for students to assess whether and how technology adds value to lawyering and judging.

Perhaps the most formative part of the clinic experience is students’ exposure to clients with very different life experiences than their own. Students are charged with building rapport with someone from another generation who has limited financial resources and who may be facing difficult health or family issues. The nature of their representation is often sensitive: the mental incapacity of a loved one, personal decisions around illness and death, and the complications of family dynamics in legacy planning. Students learn the importance of nonjudgmental responses, engaging the client with empathy and sensitivity, and, of course, being respectful and courteous.

One student summarized the impact the Clinic had on her understanding of the role and work of a lawyer:

All in all, the clinic really helped me understand what it means to be a lawyer. I have worked at a firm, and I would work on narrow issues of larger cases. When I would do that, I would never really see the whole picture. The clinic showed the whole process. Further, the client interaction was great with the clinic. That is something I have had very little experience with and it was great. Oftentimes I would talk through an issue with the client, and I would think I understood it, but when I would start to put the pieces together later, I would realize a thousand questions I should have asked. I really feel like I developed as a fact-finder through this process. . . . The clinic really helped me gain confidence that I will be able to actually practice law someday.

Conclusion

The need for attorneys trained in elder law will only grow as our nation ages. Law schools can help meet this challenge by offering clinics that address these needs. The ability to sustain any effective clinic over the long run is dependent on funding and synergy with the school’s programming and other faculty. Pitt Law’s experience—how the Elder Law Clinic is structured, the practice areas it chooses, and its responsiveness to the needs of the community—provides one example of how a clinic can thrive. More significantly, it also reflects how students derive tangible benefits that can make them successful future lawyers attuned to the needs of older clients, and concurrently promote access to legal services.