Harvard stymies student's participation in Tenenbaum defense

Harvard Law School has threatened disciplinary charges against the sole remaining law student on Joel Tenenbaum's defense team should she actively participate in Tenenbaum's trial, which gets under way in federal court in Boston Monday.

Debbie Rosenbaum, a joint Harvard Law School/Harvard Business School student who has served at Team Tenenbaum's PR lead (Ars Technica called her work "shockingly effective"), has been participating in Tenenbaum's defense under a special provision of the District of Massachusetts Local Rules that permits law students to appear in federal court, provided they are under the supervision of a member of the bar and have fulfilled certain academic requirements. See D. Mass. Local Rule 83.5.1(b) ("Student Practice Rule").

Among Rule 83.5.1(b)'s requirements for student practice is a letter from the dean of the student's law school, attesting to the student's "character, legal ability, and training." On Feb. 17, 2009, then-Dean Elena Kagan (now Solicitor General of the United States) submitted such a letter on behalf of Rosenbaum and four other students. Rosenbaum has completed two years of Harvard Law School, with one remaining. The four other students graduated in June 2009 and are no longer participating in Tenenbaum's defense.

Rosenbaum had planned to be a full participant in the Tenenbaum trial, possibly conducting opening or closing arguments and examining witnesses. But on June 29, Lisa Dealy, HLS Assistant Dean for Clinical and Pro Bono Programs, informed Tenenbaum's lead counsel, Professor Charles Nesson, that "certification has concluded" for all of his students, including Rosenbaum. In subsequent emails, Dealy wrote to Rosenbaum, "Without certification, you cant appear in court" (June 29) and "you are not certified to appear in court, notwithstanding the language that indicates certification is granted until such time as you graduate" (July 10).

Rosenbaum subsequently appealed to new Dean Martha Minow, but her entreaty was denied on July 21. Nesson then asked Minnow, "do i understand this to mean that if debbie assisting me is ok with the federal district court then it's ok with you?" To which Minow responded, "No, that is incorrect. The clinical office decision stands as the opinion of the law school, subject only to a different decision by the federal district court."

And a representative of the office of Dean of Students wrote Rosenbaum in a July 13 email that she could face serious repercussions if she participates in the trial, including being called before the law school's internal disciplinary body, known as the "ad board," as well as malpractice and bar admission issues:

Unfortunately, it appears as though you can sit at the desk with Nessen [sic], but [sic] might subject yourself to malpractice, ad board and character and fitness problems if you engage in lawyerly conduct.

But Harvard has not notified the court that Kagan's February certification letter is no longer valid, and it appears that Rosenbaum has fulfilled all of the Local Rules' requirements for student practice. Under Rule 83.5.1(b)(5), while a 2L, it was necessary for Rosenbaum to have been "currently participating in a law school clinical instruction program" (which she was, during the school year). But Rosenbaum is now a "senior law student" (defined in (b)(3) as "a student who has completed successfully the next-to-the-last year of law school study"), and (b)(1), which applies to "senior law students," does not contain a requirement of current enrollment in a clinical program. It is not clear what internal Harvard rule, if any, Rosenbaum may be violating should she proceed to represent Tenenbaum in court.

In an interview today, Rosenbaum said that, given Harvard's position, she is not sure whether she will now play a speaking role at Tenenbaum's trial. "I will talk to Professor Nesson this weekend and consider the best course of action for our client," she said. "It's so late in the game that I'm not sure he will change the design" of the defense plans. Rosenbaum said Nesson will take the lead at the trial, with possible assistance from Matthew Feingold and Matthew Kamholtz.

Rosenbaum called Harvard's handling of the certification issue "inexcusable," adding that it's "unacceptable for a top-ranked law school ... to interpret the rule so narrowly that they inhibit their students from representing indigent clients."

Rosenbaum said she has "lived and breathed and eaten this case" since joining the defense team in September 2008, and spent more time representing Tenenbaum during the academic year than she spent on her traditional coursework. "I'm not trying to practice law without a license or proceed outside the scope of the law. I'm well within my rights," she said. Rosenbaum said that, even if she does not actively participate in the proceedings, she intends to sit at counsel table, work behind the scenes, and "oversee all media and press outreach."

Yesterday I emailed a representative of Harvard's Office of Clinical and Pro Bono Programs who has been handling Rosenbaum's certification issues, requesting comment. I have not yet received any response, but will post an update if I do. The last communication from that office to Rosenbaum, an email of July 23, states:

It is not for the Law School to decide whether you are permitted to practice before the Court. Rather, that decision rests with the Court.

At the time HLS wrote to the Court, you were a 2L and there was an ongoing clinical instruction program. There is no longer such an independent clinical; the clinical program ended with the spring semester. You can represent to the Court, of course, that you are entering your third year at HLS. But the decision concerning whether you are permitted to participate in the trial is one for the Court.

While this latest email appears to soften Harvard's position a bit, the school has not rescinded its warning of possible disciplinary action against Rosenbaum.