| 3 Web JCLI|
BA, LLB, PhD, Professor, Law School,
University of Strathclyde
Copyright © Donald Nicolson 2006
First published in Web Journal of Current Legal Issues
This article argues that, while in-house student law clinics play a valuable role in skills teaching and exposing students law in action and legal ethics, their primary goal should be the provision of legal services to those in need. Putting student educational needs first reduces a clinic’s potential to serve the community and to model an altruistic ethic to students, and risks unethically treating clients as means to educational ends. In order to best achieve a social justice orientation, it is argued that clinics operate best outside the curriculum. Extra-curricular clinics not only avoid the dangers of educationally orientated clinics, but, in being highly cost-effective, greatly increase the potential to respond to unmet legal need. However, in order to guarantee student commitment to clients, a curricular course may be used to reward student who have been committed volunteers. In this way, the educational values of curricular clinics and the social justice aims of extra-curricular clinics can be simultaneously pursued without sacrificing community service to pedagogy.
I would like to thank conference participants at “Flowers in the Desert: Clinical Legal Education, Ethical Awareness and Community Service”, Monash University, July 2005 and the Sixth International Conference on Clinical Legal Education and Scholarship, UCLA, October 2005, particularly Kevin Kerrigan and Scott Cummings, for their useful comments on earlier versions of this paper. The views expressed here remain entirely my own responsibility. I would also like to thank University of Strathclyde Law Clinic students Amanda Benstock and Adrienne Shepherd for their research help, and Angus Gillies for delivering the UCLA paper on my behalf.
Over the past few decades, in-house ‘live-client’ law clinics have become an increasingly common feature of legal education in the United Kingdom. (Grimes, Klaff and Smith 1996; Browne 2001; Sylvester 2003). Indeed, the Lord Chancellor’s Department at one stage tentatively suggested that they should become a compulsory feature (Sylvester 2003, 31). However, while such clinics are generally regarded as pedagogically superior (cost apart) to other forms of clinical legal education, such as student placements and practice simulations (e.g. Brayne, Duncan and Grimes 1998), insufficient attention has been paid to their various, and potentially conflicting, purposes and functions.
According to the literature, the most important of these fall under three headings:
knowledge and skills – providing students with knowledge of how law actually operates, and with the legal and other skills used by practitioners;
ethics – introducing students to and giving them practice in dealing with ethical issues;
social and political justice – meeting the unmet legal needs of the community and reforming law to assist the less privileged and powerful.
To this list, some would add the aim of motivating students to use their education for the community rather than just for themselves, and hence helping to create a new cadre of lawyers committed to the highest ideals of professional service. In addition to these more explicit purposes, undoubtedly many students (and possibly some staff) have an eye on their CVs, whereas clinical teachers also sometimes mention the enjoyable nature of clinical teaching. Finally, at an institutional level, law schools and universities are likely to emphasise their role as active parts of the community.
At different stages of the history of student law clinics, different aims have dominated (Spjut 1977; Condlin 1983a, p 332ff; Spiegel 1987, p 589ff; Kotkin 1997, p 136ff; Brayne, Duncan and Grimes 1998, pp 5, 10, 236, 267-8; Barry, Dunin and Joy 2000-1, Giddings 2003). In the United States, for example, the Realists’ arguments that students should experience law in action was the dominant motivating force behind the first clinics being established in the 1930s. Then, in the 1960s and early 1970s, calls for legal education to be made relevant and to include an ethical component led to the law clinic movement’s acceleration. Later, however, it became dominated by the goal of skills development, though there has recently been a return to its earlier aims.
In the UK, the emphasis has been far more on clinics teaching law in context than on ethics, politicising students or seeking to ensure social and political justice (Rees 1975, p 135; Spjut 1977; Sherr 1995).(1) The trajectory has been similar to that in the US, with the earlier more political aims of the Kent and Warwick law clinics being overtaken by the explicit emphasis of most clinics, under the auspices of the Clinical Legal Education Organisation (CLEO), on students’ educational needs. These are largely understood in terms of learning legal skills and how law operates in practice, but also extend to professional legal ethics. Thus in their guide to clinical legal education, three CLEO founders expressly assert that live-client clinics must be firmly focussed on education rather than community needs (Brayne, Duncan and Grimes 1998). As Grimes puts it, “If the clinic is about anything, in our experience, it is about the process of learning…” (Brayne Duncan and Grimes 1998, p 256). Even stronger is his (unsupported) assertion that the “temptation, for financial, political or altruistic reasons, to service the client’s needs without reference to the learning experience of the student, is at best foolhardy and at worst in danger of satisfying neither the student nor client” (Grimes 1996, p 155). Similarly, Brayne refers to the (unspecified) “dangers (to the student, the clinic and the law school)” of advice work which is not properly integrated in the curriculum (Brayne 2000, 31) In fact, for Grimes and Brayne, the fun to be had from experiential teaching seems to be more important than helping those in need (Brayne, Duncan and Grimes 1998, chs 1-3 passim),(2) though Grimes does acknowledge that it is “both understandable and commendable to have as an aim the service to the community”, (Brayne, Duncan and Grimes 1998, p 11) and that “[p]rovided that legal services which address clients’ problems do serve the educational objective at the time, there is no difficulty in equally meeting both sets of needs” (Brayne, Duncan and Grimes 1998, p 11; cf Grimes 2002, p 1516).
In this article I shall argue that the tension between serving the community’s legal needs and educating students cannot be so easily wished away in what I shall call educationally-oriented (EO) clinics. By contrast, this tension (as opposed to others) need not arise in social justice-oriented (SJO) clinics, which prioritise the needs of the community and their clients. These two types of clinics represent ideal-types. They are not meant to map directly onto particular law clinics in the UK (or elsewhere). Moreover, all in-house clinics will serve multiple functions, rather than have an exclusive focus. For example, EO clinics cannot educate students without providing legal services, whereas SJO clinics have to teach legal skills in order to ensure the necessary levels of service. Thus, it is never a question of choosing one or even two exclusive goals for a law clinic, but ensuring that the various goals are prioritised in particular ways.
Given that priorities have to be chosen, I shall argue that SJO clinics represent the best ideals of the law clinic movement and the legal profession. This is primarily because they provide the widest possible access to justice for members of the community at a time when alternatives to costly legal services are severely limited, while also conveying a more positive message about lawyers’ ethics and altruistic professional ideals. However, I will not simply call for a re-alignment of the priorities of law clinics operating as part of the formal curriculum. Instead, drawing upon my experience as an advisor in the (then) totally student-run University of Cape Town Legal Aid Clinic, and as director of law clinics at the Universities of Bristol and Strathclyde, I will argue that the safest and most cost-effective way to ensure that clinics deliver social justice is for students to provide advice and assistance under supervision, but without formal academic recognition. At the same time, I will acknowledge that this extra-curricular in-house clinic (EIC) model does have a major disadvantage – guaranteeing the necessary commitment from its volunteers - and therefore suggest that this problem be met by grafting a curricular course onto EICs in order to reward student volunteers for their past commitment. As long as such courses are built on the firm foundations of volunteer clinics, these ‘hybrid’ clinics will avoid what I will argue are the problems with EO clinics.
For those who see clinics as playing an important role in addressing unmet legal need (e.g. Barnhizer 1990; Quigley 1995; Evans in Brayne, Duncan and Grimes 1998, pp 270-1; Barry, Dunin and Joy 2000-1), the greatest problem with EO clinics is their reduced potential to play this role. Thus, most obviously, cases may be turned away because they have no or insufficient educational benefits. Less obviously, a clinic’s capacity to assist those without access to legal services may be reduced by diverting resources to help those who can afford a lawyer or qualify for legal aid because their cases have pedagogical benefits.
The commitment by EO clinics, as recommended by CLEO guidelines < http://www.ukcle.ac.uk/ukcleadm/resources/clinic/standards.html>, to endeavour to refer clients (still less merely to ‘point’ them: Grimes 1995, p 182) to other sources of assistance only partly addresses the possibility that highly vulnerable and needy clients may end up unassisted if they are turned away by clinics. The fact that legal aid lawyers and other agencies offer many of the same services as law clinics means that people often turn to clinics as a last resort. A refusal of assistance may thus represent the end of the road for them. Conversely, even if a law clinic is someone’s first port of call, it should hesitate before turning away a prospective client given that many who need help give up after their first unsuccessful attempt (Pleasance et al 2004).
This failure to fulfil a clinic’s potential to assist those in need is disappointing enough. However, the willingness of EO clinics to put pedagogy over community needs is particularly problematic if it leads to weak and vulnerable community members being actively harmed, such as when clinics represent landlords or employers because of pedagogical benefits (cf Brayne, Duncan and Grimes 1998, p 74). Equally troubling is the possibility that EO clinics cease representation after it has commenced. Thus, notwithstanding CLEO guidelines which make client interests paramount once the retainer commences, the University of Northumbria’s Law Office’s retainer informs clients: “If at any time it is decided that your case is not of sufficient educational value … we will no longer act on the matter.” “Ironically”, as two of its supervisors themselves admit, “this is the point where the client is most in need of quality legal advice and representation.” (Kerrigan and Plowden 1996, p 316).
EO clinics also raise the ethical problem of using the weak, vulnerable and disadvantaged as vehicles for educating those who come from or who will soon join the ranks of the more privileged. This prioritising of student needs is perhaps most unacceptable in clinics where students are able to refuse cases on grounds of insufficient interest after prospective clients’ hopes have been raised by an initial interview (Brayne, Duncan and Grimes 1998, p 74) - even if clients have been warned of this possibility.
However, in all EO clinics, supervisors may be tempted to follow pedagogical wisdom and leave students to learn by muddling along and making mistakes. This may prolong cases, and hence exacerbate client anxiety and vexation, and even risk unsatisfactory outcomes. As Moliterno notes, “[i]t is disturbing to read almost gleeful descriptions of a ‘disastrous [client] interview [that] provided that [clinic] student with valuable insight into the “whys” of his behaviour and the avenues for change.’” (Moliterno 1991-2, p 126). Although written in the US context, there is some evidence of this approach in UK clinics (Brayne, Duncan and Grimes 1998, p 83).
Such behaviour might be ethically acceptable in Kantian terms, since the fact that clients receive legal services means that they are not being treated solely as a means to an ends, but at least partly as ends in themselves. On the other hand, alternative ethical theories reject exploitation of another’s position of vulnerability (see Nicolson and Webb 1999, ch 2). For example, the feminist ethic of care holds that if harm has to be suffered it should be borne by those who can best cope with it. Similarly, postmodernist ethics requires one to respond to needs of the Other, particularly those who are weak, vulnerable and underprivileged.
Utilitarianism seems to represent the most promising route to justifying the use of vulnerable clients for educational purposes.(3) Thus it could be argued that the long-term community benefits of producing graduates with a realistic idea of law and experience in dealing with ethical issues justify the short-term sacrifice of the interests of some of those seeking legal assistance. One problem with this argument is that only a relatively small number of students benefit from the intense educational experience EO clinics provide: an average of 24.2 students, with more than half providing only a semester’s involvement and the rest for only a year, according to as recent survey of US law clinics (McDiarmid 1990). But the main problem is that there is no guarantee that after qualification erstwhile clinic students will put enough back into those parts of the community from which their clients were drawn to justify using them as teaching tools. Unless students are politically motivated before they enter university, they will tend to go on to practise law for material and other personal benefits. If they attend the more elite universities or gain sufficiently impressive academic results, they will usually seek employment in large commercial firms. Otherwise, they are likely to end up in high street firms doing private client work for those who can afford a lawyer. While the community may benefit from private client work, the same cannot be said for large law firms helping companies avoid taxes, exploit their workers and destroy the environment.
In any event, there is clearly a need for lawyers to help those who are most vulnerable, either on a pro bono basis or, better still, by pursuing careers in law centres, or legal aid or public interest practices. Unless EO clinics can be said to encourage lawyers in this direction, it can be argued that having better educated and more ethically aware students is insufficient to justify the potential exploitation of clients and disappointment of prospective clients. In theory, resolving the problems of the vulnerable and those in need might inspire clinic students to seek careers which allow the continuation of such activities. However, by prioritising education over community service, EO clinics are just as likely to have the opposite effect of encouraging students to see their interests as trumping those of people less privileged than themselves.
This raises the third problem with EO clinics. As we have seen, one aim of law clinics is to introduce students to issues of professional legal ethics. There is no reason to think that EO clinics are worse than SJO clinics in delivering an explicit ethics curriculum. Indeed, because they raise noteworthy ethical issues, EO clinics might take on cases that a SJO clinic would not. On the other hand, this willingness to put ethical education before client and community needs contributes to the “latent” or “hidden” ethics curriculum (Chaifetz 1993; Higgins 1995, p 60) involved in all law and other teaching. As many have pointed out (Menkel-Meadow 1991; Chaifetz 1993, Jewell, 1994 p 481; Webb 1999, p 286), it is not a question of whether professional legal ethics should be taught in law schools. Whether consciously or not, law schools always teach ethics, even if the lesson is that lawyers’ ethics are not worth discussing. The problem with EO clinics, however, is not that the issue is ignored, but that the message conveyed is debased.
Lawyers partly justify their professional status on the grounds that legal practice involves more than just a business, but serves the community through the altruistic concern for those who need access to justice and the willingness to elevate client needs over self-interest (Boon and Levin 1999, pp 49-50; Nicolson and Webb 1999, p 53). But, instead of this, EO clinic students may learn that their interests are predominant, and that clients are means to their ends (now educational but later commercial), rather than potentially vulnerable human beings with pressing material and emotional needs (cf Evans in Brayne, Duncan and Grimes 1998, p 269). Thus the Sheffield Hallam Law Clinic handbook informs students: “The Law Clinic is a vehicle for the study of law. Although it may fulfil other functions (eg providing a useful service to others or giving you a grounding in skills that are useful in the outside world), it is primarily about helping you understand the law.” <http://www.shu.ac.uk/schools/ssl/handbook2004.doc>.
The long-term effects of this message are not difficult to imagine, though of course impossible to quantify. There might, however, also be a more direct effect on clinics themselves. If their ethos encourages students to prioritise their own interests or at least does not discourage them from doing so, students might well abandon clients once their own educational needs are met, such as when courses end or vacations begin.
This expectation – confirmed by a brief experiment in admitting Diploma in Legal Practice students into the University of Strathclyde Law Clinic solely in order to fulfil course requirements - was one reason why I established extra-curricular clinics at the Universities of Bristol and Strathclyde (cf Griffiths-Baker 2002; Rochester 2002). However, perhaps the main reason was that this model can be easily sold to law schools as a highly cost-effective means of running an in-house law clinic.
One reason for this cost-effectiveness is the extent to which these clinics are run by the students themselves. For example, at the Strathclyde Law Clinic (on which I shall henceforth concentrate), a partly elected and partly appointed Executive Committee chaired by myself, has responsibility for training, membership, publicity, funding, and relations with external bodies.(4) It meets regularly during term and intermittently over the summer, and is responsible for the Clinic’s day-to-day running and future direction. It also decides on whether to decline cases which raise ethical problems or otherwise conflict with the Clinic’s ethos, and how to deal with students who fail to fulfil their clinic obligations. In all of this, it is advised by a Management Committee, comprised of University members, lawyers and representatives of the local community.
A second reason for the Clinic’s cost-effectiveness is that, because its main aim is to provide quality services to clients, rather than educate students, there is much less need for the low staff-student ratio adopted in most clinics.(5) Of course, training is required to ensure such quality services. Thus prospective advisors must attend an intensive two-day training programme on interviewing skills, law clinic procedures, legal research and letter writing. This is later supplemented with sessions on negotiation, advocacy, and employment tribunal and Small Claims procedures. However, not only is the training organised by the Committee, but existing members are required to help train prospective members. Moreover, by working in pairs, more experienced members can supervise, mentor and guide the less experienced.
Law Clinic students also have considerable responsibility for allocating and conducting cases. Once trained, student advisors are placed in one of four firms. Each is headed by a Case Manager, who allocates and monitors the progress of cases. After the first interview, at which advice cannot be given, the advisors consult me on how to proceed. However, although I have years of experience both as an advisor and director of law clinics, I do not have a UK law degree, let alone the practising certificate that some see as essential to clinic supervision (Zander 1973;(6) Weaver 1983, p7; CLEO Guidelines, <http://www.ukcle.ac.uk/ukcleadm/resources/clinic/standards.html>. Consequently, where complicated issues of substantive law or procedure are involved, I draw upon the expertise of my colleagues or volunteer solicitors. After research is completed, I check the proposed advice, any letters, pleadings and other relevant documents. However, although students are given prior advice, they conduct all negotiations, and court and tribunal representation on their own.(7)
Because of the amount of administrative, educative and supervisory work done by the students, the fact that some case supervision is delegated and is relatively hands-off, and, admittedly also, because no time is directly devoted to reflection on clinical performance, the staff time required to run an EIC is surprisingly modest. Thus, compared to the reported 50-60 hours per week some US clinicians work (Feldman 1984-5, p 623), I spend approximately two hours a day during term on clinic activities (and considerably less during holidays), though I am currently assisted by a student who is responsible for fundraising and managing the office. Her wages and my salary are covered by the Law School, which also provides office accommodation and equipment, heating, lighting, postage, telephone calls and photocopying. In addition to this, the Law Clinic survives on a £5000 donation from the University’s Graduate Association, which covers insurance, publicity, training and payment of a student to staff the office during the summer.
On this investment of resources, the University of Strathclyde can boast a law clinic with over 120 advisors ranging from first year undergraduates to Diploma students, and which in its first two years of operation represented 168 clients on a wide variety of matters.(8) In fact so successful has it been that over 100 clients have been taken on in the last six months, notwithstanding that advertising has been confined to a press release in 2003 and leaflets in the Small Claims Court. Admittedly, some cases involve no more than advice and possibly also a letter or phone-call. However, the majority have required lengthy negotiations and in many cases also (sometimes repeated) court or tribunal appearances.
If such extensive assistance to the community is possible with such limited resources, it is clear that, with the level many curricular clinics receive, EICs have immense potential to play a major role in ensuring that no one is denied access to justice on financial grounds. While there is obviously still a need for legal aid lawyers, law centres and other providers of legal services, frequently they decline representation because the issues involved are regarded as too trivial or too complicated to justify their assistance. These sorts of cases – the unjustified withholding of tenancy deposits, the refusal to replace faulty goods, the resolving of longstanding neighbour disputes, etc – may matter intensely to the client and the mere fact that someone is prepared to help constitutes an important aspect of ensuring social justice.
Of course, the fact that EICs potentially provide far more extensive legal services has to be weighed against a possible reduction in their quality. Arguably, close student supervision in curricular clinics – particularly by practising lawyers who keep abreast of legal developments – should ensure better services to clients. In addition, supervisors with practising certificates can argue cases in court that students cannot. This last point can be easily met. In Scotland at least, students will only rarely be unable to represent clients in court. Thus, the lower courts in Glasgow are happy to allow students to represent clients - indeed they seem to prefer them to litigants in person. In addition, because clinic clients cannot afford legal representation, they are unlikely to want to risk losing cases in the higher courts and, if there as defendants, the Strathclyde Clinic endeavours to find them pro bono representation or assists them to represent themselves.
Admittedly, close supervision of students in curricular and particularly EO clinics should reduce the risk of mistakes, though in twelve years of involvement with EICs I have yet to encounter any that have been irreparable. Moreover, EICs have certain advantages in terms of service quality. As we have seen, educational goals may counsel that EO clinic students are allowed the space to make their own (hopefully redeemable) mistakes and to discover things for themselves. By contrast, EICs (like curricular SJOs) prioritise client interests, and thus if supervisors identify problems they should immediately rectify them, and the time which would otherwise be used assisting students to see the error of their ways can be devoted to helping other prospective clients. Clients also benefit from the fact that the work of EIC advisors is not assessed and hence that they are far less likely to conceal weaknesses in case preparation or gaps in their knowledge (cf Sullivan 1993, 123; Tarr 1993, p 246).
EICs have other potential advantages in terms of service quality. This is because students who are intrinsically motivated by a desire to help those in need rather than by the extrinsic rewards of university credits or improved recruitment chances are far less likely to tailor their efforts to their own needs or let down clients when the educational benefits of cases cease or their course ends. And, even when students do not deliberately abandon clients where their own needs have been met, but merely hand over cases when the clinic course ends, clients may still suffer. A new relationship has to be established, which takes additional time and emotional energy for clients. Moreover, even if students keep an exemplary record of what has been said and done by both client and themselves, there will always be important information or insights known to the previous advisor that cannot be articulated on paper, and there is always greater scope for misinterpreting words on a file than oral communications accompanied by body language and tone of voice. This is a problem with all clinics, but less so when the student’s involvement is not limited to a semester but, as at Strathclyde, will usually continue for a number of years.
The downplaying of pedagogical goals in EICs, and indeed all SJO clinics, also means that individual clients can be provided with a wider range of services. Thus, where possible, the Strathclyde Clinic endeavours to assist clients with all the non-legal problems which emerge in the course of assistance. Sometimes this involves simple practical help such as form-filling, but where students cannot help they must organise assistance from more appropriate sources such as debt advice organisations, immigration advisors or counsellors. While dealing with non-legal problems may seem to waste the students’ nascent legal skills, in many cases a client’s legal and non-legal problems are so entwined that the former problems cannot be solved in isolation from the latter.
But even if it is accepted that, notwithstanding these specific advantages to EICs, the close supervision in EO clinics means that they are more likely in general to deliver better services to those clients they do take on, this must be balanced against the fact that, with the same level of resources, EIC clinics can help vastly more clients without compromising standards to the point likely to lead to more than occasional and rarely irreparable mistakes.
There is another way in which EICs might benefit the community. This is through their greater potential, as compared to EO clinics, to inculcate an ethical approach to lawyering which is far more responsive to individual clients and unmet legal need than that presently encapsulated in the amoral role morality of neutral partisanship, and the associated technicist and paternalistic approach to client relations (cf Nicolson and Webb 1999, chs 5 and 6). Thus the tendency for curricular clinics to be supervised by practising lawyers or ex-practitioners runs the risk that they might inculcate in students the sort of harmful models of adversarial lawyering, competitiveness, insensitivity and the professional manipulation of clients which motivated Condlin’s attacks on US clinical legal education in the 1980s (Condlin 1983a and 1983b; Condlin 1986).(10) As Condlin notes, the fact that clinic teachers are the closest students come to their prospective new role as practitioners means that they are likely to have a particularly strong influence over students (Condlin 1983a, p 331; also Aiken 1997, p 38). These dangers are obviated in EICs because they do not require high levels of supervision from practitioners or ex-practitioners.
More positively, in putting client and community needs first, EICs can seek to inculcate an ethical orientation to lawyering which differs from the “standard conception” of lawyering in three important ways. First, by never allowing students’ educational and career needs to take precedence over client needs, they (and again all SJO clinics) model client-centred professionalism. Second, where students are expected to help resolve a client’s non-legal as well as legal problems, they will understand more fully the depth of social deprivation and its link to legal problems. This may convey important lessons about the society in which they live and will practise, and may influence them to be more cautious in the zealous pursuit of client interests. Finally, by prioritising the needs of those who cannot afford legal services, EICs suggest to students that professionalism includes a duty to assist those who are vulnerable, marginalized and under-privileged. Indeed, by gaining a sense of achievement from making a difference to people’s lives, students might be encouraged to practise in areas involving such clients, to pressurise their employers into instituting pro bono schemes or at least to act pro bono in their spare time.
Instilling such an ethos is by no means straightforward. Some students may seek clinic membership solely in order to augment their CVs and to learn useful skills. At Strathclyde, students must justify why they want to join on a lengthy application form and in many cases are interviewed to assess their commitment to helping other and not just themselves. While weeding out “careerists” is not an exact science, usually it soon becomes clear when students are not committed to helping those in need, or at least to carrying out their obligations to clients and the clinic. Moreover, disciplinary rules provide for the exclusion of advisors who let down clients or the Clinic.
However, research shows that the threat of sanctions alone is unlikely to ensure ethical behaviour (Coady 1996, p 49 and see further Nicolson 2005a). On the other hand, while all clinics are well-suited to bring about deep-seated changes to a student’s ethical orientation (see eg Condlin 1983a, Luban 1983, Luban and Millemann 1995; Nicolson 2006b), voluntary SJO clinics have a better chance of ensuring that this includes a commitment to altruism, to prioritising client interests, and to treating clients in a humanistic manner.
Thus, official University of Strathclyde Law Clinic documents, its website <http://lawclinic.org.uk> and advertising leaflets inform students that the Clinic’s overriding objective is to “provide free legal assistance and representation to those in Glasgow and its environs who are unable to obtain such help through other means” and that it “prioritises the needs of the community for legal services and the interests of individual clients.” This does not mean that it automatically takes on everyone who would otherwise go unassisted. Clinics do not serve the community by wasting time and resources on, or by giving false hope to, those with hopeless cases. However, while the need to ensure the most effective use of scarce resources remains paramount, the Clinic does recognise the value in supporting those with legally weak, but morally strong, cases so that they can experience their “day in court” and know that there are others who care about them and recognise the justice of their case.
This ethos is emphasised in induction training, where students are trained to be “holistic” legal practitioners, who see clients as flesh and blood individuals with a unique set of problems of an emotional as well as a legal and material nature, rather than just bearers of legal problems requiring the use of intellectual and technical skills (“the eviction, the breach of contract”, etc). Finally, the message about ensuring access to justice is reinforced through occasional discussions between advisors, case managers and the Executive Committee over whether the Clinic should take on cases which do not clearly fit within its criteria or which raise difficult ethical issues. Thus, while recognising that particular clients may have unsavoury views,(11) students are introduced to the idea that all citizens - not just those who can afford legal services - have a moral claim to have their rights vindicated irrespective of their own morality (though the Clinic has refused to assist clients unjustifiably harming others or propagating views which are racist, sexist, etc.). Admittedly this process of inculcation remains largely confined to the Committee(12) and advisors whose cases raise ethical dilemmas, but all decisions are publicised on the Clinic’s intranet and in newsletters.
The ability of clinics to have a positive socialisation effect is not beyond doubt. Evans has argued that they can only confirm students’ pre-existing orientation as left- or right-leaning (in Brayne, Duncan and Grimes 1998 p 268; see also Simon 1966; Sacks 1968) though his earlier and more recent research tentatively suggests otherwise (Evans 2001; Evans and Palermo 2005), and significantly he has not looked at the impact of EICs. My impression, confirmed anecdotally or empirically by others, suggests that many of those who join a clinic merely to gain skills or pad their CVs become committed to serving those in need once they begin to appreciate the sort of problems they face and gain satisfaction in making a difference to other people’s lives (Johnstone 1951, p 537; Rees 1975, p 136; Kotkin 1997; Guggenheim 1995, p 683; Quigley 1995, p 56; Aiken 1997; Maresh 1997; Styles and Zariska 2001). This might, of course be exceptional and such students may quickly revert to their initial more self-centred orientation once in practice.(13)
Yet, even if this is true and clinics cannot significantly change a student’s ethical and political orientation, their role in confirming pre-existing orientations should not be underestimated. Existing research shows that law schools do have an effect on students’ attitudes (eg Chaifetz 1993; Chapman 2002). Unfortunately, this is in the direction of discouraging them from pre-existing social justice orientations towards greater cynicism and self-interest. This is not helped by the fact that, particularly in the more elite law schools, career advice and recruitment activities are dominated by the large commercial law firms (Rolfe and Anderson 2003). Without sufficient examples of how legal careers can be devoted to those in need and the less privileged, students tend to “fall” into commercial firms or at least those devoted to moderately well off private client. By exposing students to alternative legal careers and the experience of achieving something for those in need, SJO clinics may strengthen pre-existing social justice orientations and even inspire those without any strong pre-formed ideas to seek justice-oriented legal careers or at least to undertake pro bono work. This is far less likely to occur in an EO clinic, especially where its case load replicates those of high street law firms.
Thus far, I have argued that the voluntary nature of EICs and their focus on community rather than students’ needs make them far more likely than EO clinics to encourage an appropriate ethical orientation in law students. I have also argued that any reduction in the quality of legal services due to the reduced level of case supervision is unlikely to be so great as to outweigh the potential of EICs to vastly expand access to justice. This potential flows from their cost-effectiveness, but also from the fact that EICs do not have to weigh community and client needs against those of the students. However, this does not mean that voluntary clinical work has no educational benefit, or that EICs and curricular SJO clinics do not have their own tensions and difficulties.
As already noted, EICs inevitably have an educational function. If students are not adequately trained, EICs will not achieve their aim of serving the community. Moreover, students will go well beyond their traditional legal education in investigating and handling facts, ascertaining legal procedures, dealing with legal issues that are either not taught at law school or which cross traditional subject boundaries, writing letters, and frequently also negotiating, and appearing in courts and tribunals and engaging with ethical issues. Consequently, the learning experience will be considerable even at institutions like Strathclyde Law School which include some of these activities in the curriculum. Indeed, the fact that supervision is at arms-length and intervention confined to directing legal research, correcting letters and deciding on strategy means that EICs maximise all the benefits of active, problem-based learning emphasised by advocates of clinical legal education (eg Brayne, Duncan and Grimes 1998).
In fact, EICs offer learning opportunities not experienced in traditional curricular clinics. This is because a substantial number of students (sixteen in any one year in the Strathclyde Law Clinic) are directly involved in clinic management and policy making, thus providing them with important life skills. While certain fundamentals (such as the need for insurance and supervision) remain non-negotiable, the committee is given considerable responsibility for day-to-day management, clinic policy and decisions about representing particular clients. Such issues are often vociferously debated and put to the vote. At least for the students involved in this process, the Clinic thus acts as the sort of “just community” espoused by Kohlberg and his disciples (Power 1988; Power, Higgins and Kohlberg 1989). According to Higgins (Higgins 1995), such communities have three aims: “(1) enhancing students’ moral reasoning through participation in moral decisions; (2) creating a moral culture of norms and values through democratic rule-making and building group solidarity or community; and (3) providing a context in which students, and teachers as well, can act on their moral intuitions and decisions.” The last aim applies to all law clinics, but the Strathclyde clinic achieves all three for over ten per cent of its membership in any one year. Moreover, it has recently increased democratic decision-making through public meetings and intranet discussion fora, thus increasing the likelihood of being advisors committed to the decisions made and the resulting clinic ethos, and hence of a more cohesive institution (Power 1988; Quigley 1995, pp 65-6).
Of course, EIC students lose out in terms of hands-on supervision, guided reflection on their performance, and the opportunity to comprehensively explore issues of justice and ethics which arise in legal practice. To the extent that this reduces their knowledge of law and the legal process, and their development of legal skills, this does not worry me. Any gaps should be filled in the vocational stage of training. If they are not, this needs to be addressed head-on rather than by expecting clinics to improve the knowledge and skills of some students. In any event, EICs do add value to legal education and, although possibly less than EO clinics, more students benefit. A similar argument can be made regarding the ability of clinics to break the current silence on issues of professional ethics in the academic stage of legal education, though here this silence does worry me (cf Nicolson and Webb 1999, ch 10). On the other hand, what also worries me is that the partial addressing of the problem by EO clinics may act as an excuse for not mainstreaming ethics in undergraduate legal education. More importantly, as I have argued, EO clinics might implicitly model far less commendable ethical ideals than those represented by altruistic and client-centered professionalism, whereas the brief period in which students are involved, as well as competing educational goals, undermine the potential for ethical sensitivity, still less ethical motivation, to take root (Robertson 2005, p 233ff and cf further Nicolson 2006a). Whether this is better than nothing, and whether the greater time for discussion of ethics in EO clinics outweighs EIC students’ longer exposure to ethical issues and what I would regard as a more positive ethical message is a moot point.
However, it may not have to be addressed if a hybrid clinical model is adopted in order to go beyond the exploration of ethical issues only as and when they arise and to address other problems with EICs and SJOs. One problem is that the downplaying of educational goals means that such clinics may have to rely on external funders, who may seek to limit clinic activities, for instance to only certain types of cases, certain geographical areas or certain ways of serving the community (for example, client representation but not street law or law reform). This would require difficult decisions to be made, such as whether it would be better to serve more clients but in limited fields or maintain a wider range of services but at a reduced level. On the other hand, as long as SJO clinics are working to their full capacity, albeit within a narrower area of operation, they fulfil their mission. No clinic can single-handedly resolve all problems of access to justice. Moreover, EO clinics do not necessarily have carte blanche to pursue any activity they choose. Universities may require them to limit assistance to students or prohibit them from assisting those in dispute with the university itself. External funders may require less time to be spent on teaching than on community services. Thus, funding is a perennial problem for all law clinics whatever their primary orientation.
Another dilemma for SJOs is whether social justice is best promoted by helping as many individual clients as is possible or by concentrating resources on test cases or law reform campaigns in the, possibly vain, hope that this may help whole sections of the community. Again, however, while this is a dilemma requiring finely balanced political and ethical judgment, it does not require prioritising pedagogy over social justice. As long as SJO clinics do in fact seek to promote community interests, they cannot be faulted, whereas those clinics which base their decision on pedagogical considerations can be criticised on social justice grounds if the chosen option turns out to be less beneficial to the community.
There is, however, one flaw with the EIC model which needs to be addressed if it is to meet its potential for ensuring social justice. This involves the problem of ensuring that its volunteers actually have the necessary commitment to put client needs before their own. I have argued that students with an inherent desire to help the community rather than simply pursue their own educational needs will tend to provide a more committed service. Nevertheless, there remain two problems. One is that over-rigorous selection processes can exclude students who might well conscientiously serve their clients despite their initial non-altruistic motivations and even become more altruistically motivated in the course of doing so. Conversely, students seeking clinic participation solely for reasons of self-interest are likely to slip through even the most rigorous selection procedures. If subsequently they let down clients or the clinic, they can be excluded, but this process wastes valuable time, is of little comfort to the affected client and is only likely to deter inadequate rather than less than optimal client services.
The second problem with EICs is that even the most committed students have academic and part-time work pressures which may tempt them to cut corners or even let down clients. Although I have only rarely witnessed this in years of experience with EICs, maintaining commitment is likely to be a perennial problem with all volunteer organisations. Apart from threatening to expel volunteers, which is hardly effective if their commitment is already wavering, there seems to be little one can do to ensure that they fulfil their obligations.
Nevertheless, for all the reasons already alluded to, I do not think the answer lies in moving to the curricular model, especially its EO variant. Instead, in order to create an incentive for all volunteers to show the same commitment as the majority, a reward could be provided for students who have had an exemplary record in client representation and, where relevant, in clinic management. Given the educational benefits students obtain from the low staff-student ratio in clinic courses, from learning by listening to and observing more experienced practitioners, and from having opportunities to reflect on their performance, an appropriate reward would be entry to a credit-bearing clinic course. Moreover, because students are at least partly assessed on what they would be doing anyway as volunteers, they would be further rewarded by a reduced academic load while on this course. Losing the opportunity to maximise their learning experience and minimise their workload might thus dissuade the few students in EICs who might otherwise be tempted to put their own interests above client service and clinic obligations.
Because obtaining academic credit and educational benefits from the course depends on a student’s prior commitment to serving the community and clients, a hybrid clinic does not detract from the aims of SJO clinics. However, grafting a clinical course onto the volunteer model does have the considerable advantage of allowing a fuller exploration of the ethics and justice of legal practice, and the politics of law and its social context than is currently possible in, particularly voluntary, SJO clinics. As long as one regards the provision of legal services to the disadvantaged as a clinic’s raison d’etre, having both extra-curricular and credit-bearing dimensions thus seems to offer the best of both educational and social justice worlds.
There are, however, likely to be those on both the left and right who would argue that universities should have no truck with attempting to deliver social justice. From the left might come the argument that using law to assist the weak and vulnerable projects an image of law as a panacea for social problems. This in turns helps to legitimise an unjust status quo, which is partly built on law itself, and distracts attention away from focusing on social change (cf Tarr in Brayne, Duncan and Grimes 1998, p 237).
This argument might have had some bite in the first half of the last century when radical social change was a distinct possibility. Today, however, turning one’s back on the oppressed because of the need to keep the way open to fundamental change appears to be almost as ethically questionable as prioritising student needs over those of the community. Thus postmodernists would claim that the time of justice is now and not some uncertain future (Douzinas and Warrington 1994 esp. p 237ff), while turning away clients contravenes its call to respond to the Other’s face (see eg Nicolson and Webb 1999, ch 2). Moreover, following EP Thompson (Thompson 1975), many on the left have come to recognise that, while law is ultimately an instrument of power and injustice, to be effective it must sometimes meet its rhetoric of justice, equality and concern for the rights of the weak, and that this rhetoric provides a space for organisations like law clinics to push law further towards its claimed ideals and away from its actual injustice.
In any event, given the desperate situation of many clinic clients and the frequent attempt by their more powerful opponents to exploit laws which are already weighted in their favour, few clients or their student representatives are likely to regard any victory achieved as illustrating law’s inherent justice. Indeed, research suggests that clinics increase student cynicism about legal justice (MacFarlane 1992, p 306). This, I think, is no bad thing, as long as such cynicism can be channelled into a desire to counter legal and social injustice. The satisfaction students obtain from achieving positive results for clients and the latter’s appreciation of their efforts will hopefully encourage students to mix cynicism about legal justice with a commitment to substantive justice. But, in any event, irrespective of whether this possibility materialises, I strongly believe that the social justice clinical project is justified in its own terms, as is all the effort involved in running SJO clinics, even if they improve the lives of only a few.
A diametrically opposed criticism of SJO clinics is likely to come from the right, and those who regard the duties of legal academics to be confined to teaching and scholarship.(16) Such critics are likely to argue that university resources or student time should not be wasted on playing politics or providing services to the community. This argument is based on a number of unwarranted assumptions. Most obviously, it fails to recognise that if clinics do not add to a student’s legal knowledge, they would not be able to assist clients. That this added knowledge relates to how law operates in practice, legal procedures, legal skills and ethics might not convince traditional legal academics, but they are becoming increasingly marginalized.
A second erroneous assumption is that, unlike running SJO clinics, teaching students ‘the law’ is value free and apolitical. This ignores the obvious fact that the law itself is far from neutral in both its values and social impact. Failing to acknowledge this to students is as much a political act as seeking to redress the impact of injustice. Moreover, there is nothing neutral about many law schools which offer far more courses addressing the issues of the wealthy and powerful than those of the poor and disadvantaged, notwithstanding their converse social distribution (Lopez 1988-1989; Chaifetz 1993).
Finally, the idea that universities are merely places of education and scholarship is highly tendentious (see eg McGee 1969-70; Barnhizer 1991-2; Laser 1994, p 441). This narrow view of a university’s mission is obviously not shared by the University of Strathclyde which takes pride in the Clinic’s involvement in the community (see <http://www.strath.ac.uk/media/media_31035_en.doc>). Moreover, all UK universities and hence their largely middle-class students are heavily subsidised by taxpayers, the majority of whom have not had a university education. It seems unlikely that they or governments intent on reducing legal aid bills would complain if a small proportion of the money currently spent on producing lawyers for the powerful and better off members of society would be used to assist those who have not benefited from higher education funding. On the contrary, both government and the lay community are likely to welcome the fact that extra-curricular law clinics can provide effective legal services at a fraction of what lawyers charge – a fact which can be exploited in the struggle for law clinic funding (cf Sylvester 2003, 37-8).
Indeed, a more realistic concern is that if extra-curricular law clinics become more widespread, they might provide an excuse to further reduce state spending on legal aid and other allegedly more effective legal services (cf Moliterno 1991-2, p 132). Here, however, it can be noted that SJO clinics need not compete with legal aid and other state-funded schemes. Instead, they are better suited to providing a safety net for those who fall between other service providers and for engaging in activities like law reform, public interest litigation and community legal education (street law) that professional service providers might be unable to undertake. Moreover, professional legal service providers and student law clinics are not currently chasing the same sources of financial support and it seems unlikely that those who currently fund law clinics would be prepared to redirect their financial support (as Moliterno himself admits: Moliterno 1991-2, p 132). Most importantly, given the vastly more cost-effective nature of voluntary law clinics, it is arguable that redirecting a relatively small amount of state funding to supporting such clinics might be worth the considerable increase in services which can be provided. In fact, if every law school had a properly funded clinic, the problem of unmet legal need would virtually disappear. It is this potential, more than anything else, that most commends voluntary law clinics.
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 This was so even in the more critical atmosphere of the Kent and Warwick law schools, though the early Kent law clinic did refer to the need to “alleviate distress in the community” (Rees 1975, p 135).
 Evans also refers to this aspect of clinical legal education, but rejects putting university needs over those of clients: in Brayne, Duncan and Grimes 1998, p 267ff.
 Though the repeated references to the fun to be gained from clinical teaching (see above) suggests that egoism is the form of consequentialism being invoked.
 Student autonomy is even greater at the University of Swansea’s Law Clinic: see http://www.swan.ac.uk/law/law_clinic/the_law_clinic.htm.
 1:12 according to the CLEO guidelines: http://www.ukcle.ac.uk/ukcleadm/resources/clinic/standards.html, and 1:8 according to Evans in Brayne, Duncan and Grimes 1998, p 271. In the US, 54% of law clinics surveyed had a staff-student ratio of between 1:8 and 1:10, with 16% even having a ratio of less than 1: 6: McDiarmid 1990, pp 254-5.
 Deriding “academics at play or refugees from practice”, but cf Brayne, Duncan and Grimes 1998, pp 66-7.
 Not surprisingly, though, the Clinic protects itself by professional indemnity insurance and a liability disclaimer.
 The Bristol and Swansea Clinics have respectively around 150 and 200 students, who in 2004/5 dealt with around 70 and 80 cases respectively.
 Thus, with only a modest increase in funding the Strathclyde Law Clinic intends to take on specialist employment tribunal advocacy, establish outreach clinics in outlying areas of Western Scotland, develop street law schemes and petition the Scottish Parliament for law reform in areas relevant to its clients.
 But cf Redlich 1983, and the more sensitive style of teaching advocated in Brayne, Duncan and Grimes, 1998.
 A recent client expressed anti-Irish views to an advisor called Colleen!
 Its success is exemplified by a debate in which a new member expressed the view that advisors should not act as “social workers” resulting in more experienced members immediately retorting that that is precisely how they should act.
 But cf the fact that Evan’s earlier findings on the positive impact of clinics (Evans 2001) involved law graduates in practice.
 cf Webb 1999, p 296 for a similar proposal for law schools.
 Another alleged flaw is that extra-curricular clinics are marginalised (Tarr in Brayne, Duncan and Grimes 1998, p 245), but clinic marginalisation seems to occur in any event in the US, whereas my experience in two law schools suggests that clinic work is either respected or not irrespective of whether it is credit-bearing.
 This might have motivated the fierce response to the Lord Chancellor Department’s suggestion that all law students should obtain clinical experience, but it may also have been due to an association of clinics with skills teaching and the belief that this should be confined to the vocational stage of legal education (see Sylvester 2003, 31-2), and/or a defence of academic freedom from government intervention.