Massachusetts State House.
Boston Bar Journal

Defending the Supreme Judicial Court, Rule 3:03, Student Practitioner Experience

November 07, 2023
| Fall 2023 Vol. 67 #4

By Christiana Prater-Lee

Could I really do this? Walking into the Boston Municipal Court for my first “duty day” as a Student Defender with Boston University School of Law’s (“BU”) Criminal Law Clinic, I was apprehensive. Every third name on the court-appointed list would become my client. I introduced myself to my first client and explained the benefits of student representation: our clinic’s ample resources including in-house social workers, the aid of supervisors with decades of public defense experience, and my light caseload which would allow me to give them extra attention. After obtaining my client’s consent, I had a few minutes to get to know them before going before the judge. That first day, not only did all my clients leave feeling relieved that they were released without bail, I, too, left feeling relieved. I also had my answer. Not only could I do this work, but I wanted to do it, and more of it.

Supreme Judicial Court (“SJC”) Rule 3:03 allows upper-level law students who have completed underlying requirements to appear in civil and criminal proceedings under the “general supervision” of a barred attorney. This longstanding opportunity in Massachusetts dates back to the 1950s, with only Colorado having established an earlier program. In fact, Rule 3:03 is even enshrined in the popular film Legally Blond. Many have launched their legal careers as Rule 3:03 practitioners, including numerous SJC justices. However, last year, after concerns were raised with particular Rule 3:03 practices, the SJC created a committee to review Rule 3:03. The committee is in the final stages of drafting proposed revisions. Several broad concerns have been raised, including under-supervision, inadequate course prerequisites, and students serving as stopgaps for paid attorneys. While these concerns can and should be addressed, the benefits for all militate against drastic change. As Laura Nelson, Esq. (an alum of BU’s Civil Litigation Clinic) sees it, without Rule 3:03, “you’ll still have student lawyers in court, except they’ll be called ‘attorneys.’”

It is appropriate that I, a proud Student Defender alum, would “defend” Rule 3:03. Overall, my experience — from arguing a subpoena motion to produce a witness’s medical records, to learning how to communicate with clients in crisis, to building practical skills for effective advocacy (like bringing protein bars and extra pens) — reaffirmed my desire to be a public defender. As I start my career, I have already drawn on these lessons.

However, one need not rely on my perspective to appreciate the importance of Rule 3:03. Former student prosecutors who now work as Assistant District Attorneys (“ADAs”) credit Rule 3:03 as “without a doubt” their most beneficial law school experience. Recognizing that they learn best “by doing,” they used the opportunity of making bail arguments, preparing discovery, arguing motions, and conducting trials to “hit the ground running.” Brian Wilson, BU’s Student Prosecutor supervisor, credits his own 3:03 experience as a student practitioner with the clinic in the 1990s for giving him the confidence “both professionally and personally” to become a life-long prosecutor. Now back at BU, Wilson has supervised over 80 Student Prosecutors, approximately half of whom have become ADAs.  The remainder have put the transferable, real-world experience, skills developed, and lessons learned to good use in a variety of legal venues. Simply stated, student practitioners are more “practice ready” to serve clients, justice, and further the rule of law.

Even those who pursued career paths not directly related to their 3:03 experience have greatly benefited from such lessons. One Student Defender alum credits these “training wheels” as providing her with a “deeper sense of responsibility” that prepared her for her current position as a housing advocate. Professor Karen Pita Loor, who directs BU’s Criminal Clinic, sees such “transferrable skills” as a critical takeaway. According to Loor, these benefits are a “win win win” for the student, future employer, and access to justice. With regard to facilitating access to justice, the need for client-centered pro bono representation is particularly acute on the civil side, where the right to counsel is generally not guaranteed. For instance, BU prides itself on its Consumer Debt Practicum, where students defend low-income clients in small claims court on credit collection matters. Without their help, these litigants would have to appear pro se and may be driven further into debt.

Granted, Rule 3:03 also raises challenges. One student noted there is something “unseemly” about students compensating for the shortage of “actual lawyers.” Others caution about the practice of sending student prosecutors into court without a supervisor watching their every move. Although Rule 3:03 requires “general supervision,” amendments have clarified that this “shall not be construed to require the attendance in court of the [supervisor].”

During the review process, the committee has sought feedback from stakeholders, including law schools, public agencies, and judges. The student perspective reveals nuances that caution against broad revisions, while suggesting paths forward. For example, Rule 3:03 allows students “enrolled in” evidence or trial advocacy to appear on criminal matters. Thus, students who have taken only one day of evidence are authorized to conduct a trial. During my first mock trial for my trial advocacy course, which was also one month into my evidence course, I missed hearsay objections and failed to move exhibits in evidence.  Of course, I did not have a supervisor to help me prep for this mock trial. What if these errors occurred at an actual trial with my client’s liberty at stake? Suggestions raised by Professors Wilson and Loor include case-by-case approaches with course prerequisites, more rigorous screening by law schools as to who is allowed to practice under Rule 3:03, and regular check-ins with supervising attorneys.

As Supreme Court Justice William Brennan highlighted over half a century ago, it is “plain that law students can be expected to make a significant contribution, quantitatively and qualitatively, to the representation of the poor in many areas.” The proposed revisions to Rule 3:03 now provide an opportunity both to reflect on this vision and press forward.

Christiana Prater-Lee (she/hers) just started her career as a public defender for the Legal Aid Society in New York City. After graduating from Boston University School of Law in May 2022, she clerked for Associate Justice James R. Milkey of the Massachusetts Appeals Court. The views expressed in this article are entirely her own, and do not reflect those of either the Appeals Court or Justice Milkey.