Law students, who are often in a hurry to graduate and get to work, fill a large need providing research and assistance in drafting as law clerks. This model has been immensely helpful — it gives busy lawyers a great amount of assistance and law students a unique opportunity to gain experience in the profession.

However, this newfound urgency to leave the confines of law school and join the workforce brings challenges and mistakes that could affect law students for years to come. To understand why law students attempting to practice too soon may cause future issues, an analysis of Michigan Rule of Professional Conduct (MRPC) 5.5 is required.

When working in the legal field, law students are usually supervised by lawyers. Law students are viewed as non-lawyers possessing legal knowledge and skills — the key term being “non-lawyers” — therefore, “[a] lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”¹ This includes ensuring compliance with MRPC 5.5, which “forbids a lawyer from assisting a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.” The comment to MRPC 5.5 specifies that it does not prohibit lawyers from employing paraprofessionals and delegating functions to them “so long as the lawyer supervises and retains responsibility for the delegated work.”²

Unfortunately, lawyers sometimes forget that law students are unable to practice due to the knowledge and skills they already possess. When looking at MRPC 5.5, it is logical to connect it to MRPC 5.3 for determining what law students may do and the ethical obligations attorneys must follow. Applying MRPCs 5.3 and 5.5, even though a nonlawyer is working under the direction and control of a licensed lawyer, the lawyer is ultimately responsible for representation and ensuring that the nonlawyer’s conduct is compatible with the ethical obligations.

Based on MRPC 5.5 and 5.3, it would seem that law students are not able to practice under any circumstance. However, Michigan Court Rule (MCR) 8.120 comes into play for legal aid clinics, public defenders’ offices, and legal training programs. The issue that often arises when applying MCR 8.120 is that attorneys do not read it in its entirety and inadvertently facilitate the unauthorized practice of law in violation of MRPC 5.5, placing the law student at risk with Character and Fitness.

Law students and recent law school graduates are excited when they obtain internships or clerkships. These opportunities provide them with practical experience and allow them to apply principles they learned in the classroom. Conversely, these positions are invaluable to many public defenders’ offices, legal aid clinics, and legal training programs because they provide additional manpower to help handle cases. The downside to these programs is when law students, recent graduates, and their supervising attorneys do not understand the limitations of MCR 8.120 and the connection to MRPC 5.5 and MCL 600.916, thereby creating the potential for an unauthorized practice of law violation.

MCR 8.120 allows law students and recent graduates to work under the supervision of a member of the State Bar at public defenders’ offices and legal aid clinics organized under county bar associations or accredited law schools for the primary purpose of providing free legal services to indigent people.³ It allows students and recent grads to participate in legal training programs organized in the offices of county prosecuting attorneys, county corporation counsel, city attorneys, municipal/township attorneys, the Attorney Grievance Commission, and the attorney general’s office⁴ and though they are authorized to perform similar duties as attorneys in those offices, they may not be appointed as assistant attorneys.⁵ Students enrolled in American Bar Association-approved law schools who have completed their first year of studies, received passing grades in their courses, and meet the

academic and moral standards established by their law schools are eligible to participate,⁶ as are those who have graduated from law schools within the last year.⁷ Students and recent grads must certify in writing that they have read and are familiar with the Michigan Court Rules and Michigan Rules of Professional Conduct, and they must take an oath similar to the Michigan Lawyer’s Oath.⁸

According to MCR 8.120, students and recent graduates participating in legal aid clinics are authorized to advise clients, negotiate on clients’ behalf, and appear in all Michigan courts except the Michigan Supreme Court. Before representing an indigent client, they must have the client’s written consent.⁹ They must be supervised by a Michigan attorney, which includes the duty to examine and sign all filed pleadings.¹⁰ However, supervising attorneys are not required to be present when students or grads advise clients, negotiate on the clients’ behalf, or make courtroom appearances other than during an appellate argument or when the client faces a penalty of more than six months in jail in a criminal or juvenile case.¹¹ Students and recent grads may not appear in a Michigan court without the judge’s approval. If the judge grants approval, he or she may suspend proceedings at any stage if they determine that the representation is professionally inadequate.¹²

Potential unauthorized practice of law issues may arise when legal aid clinics, defenders’ offices, and legal training programs hire recent graduates. MCL 600.916, which governs the unauthorized practice of law in Michigan, prohibits people from practicing law, engaging in the law business, and holding themselves out as attorneys unless regularly licensed and authorized to practice law.¹³ And the practice of law includes, but is not limited to, giving legal advice, using legal knowledge or discretion, and acting as an intermediate in another person’s legal matter on their behalf. Recent grads can violate MCL 600.916 when in training programs and practicing law without a license while no longer covered under MCR 8.120. If someone becomes aware that the recent grad is practicing without a license and no longer eligible to practice under MCR 8.120, a complaint may be filed with the State Bar of Michigan Unauthorized Practice of Law (UPL) Department, which must investigate the matter and potentially bring the case to the Bar’s UPL Standing Committee. A UPL department investigation could have implications for recent grads applying to take the bar exam and go through the character and fitness process.

Under MCR 8.120, a recent law school graduate is defined as someone who has graduated within the last year. If the graduation occurred more than a year ago, that person is not eligible to practice law under MCR 8.120. Supervising attorneys at training programs must adjust graduates’ job duties after the one-year period to avoid unauthorized practice of law. If supervising attorneys do not revise job duties and allow recent grads to continue practicing, they may be violating the unauthorized practice of law¹⁴ — MRPC 5.5a prohibits lawyers from practicing law in violation of the regulation of law and assisting another in doing so. Such violations could subject supervising attorneys to referral to the Attorney Grievance Commission (AGC) for investigation.

Another potential unauthorized practice of law issue may arise when recent law school graduates are hired at defenders’ offices, legal aid clinics, and legal training programs and given titles such staff attorney, assistant public defender, assistant city attorney, assistant prosecutor, assistant corporation counsel, or assistant attorney general when they are not licensed to practice law and are no longer eligible to practice under MCR 8.120. MCL 600.916 prohibits someone from holding themselves out as an attorney when not regularly licensed or authorized to practice law, but these job titles convey to the public that the person is licensed. Therefore, not only do supervising attorneys at legal training programs need to revise recent grads’ duties after the eligibility to practice law under MCR 8.120 ends, but they also need to change job titles to avoid violating MCL 600.916. Failure to do so could lead to the recent grad being subject to a UPL Department investigation and action from the SBM UPL Standing Committee, and create obstacles to taking the bar exam and going through character and fitness. Similarly, supervising attorneys can be deemed to violating the unauthorized practice of law under MRPC 5.5.¹⁵

If graduates are eligible under MCR 8.120, they’re advised to use titles indicating their status – for example, assistant public defender practicing under MCR 8.120 – to avoid leading others to believe they are licensed to practice.

Given the interconnection between MCR 8.120, MRPC 5.5, and MCL 600.916, it is important that law students, recent law school graduates, and supervising attorneys understand these rules in order to avoid UPL investigations, character and fitness concerns, and AGC investigations. Not knowing the rules could turn great internship and clerkship opportunities into unfortunate experiences.