Clinical legal education and extracurricular law clinic

In this article from the Autumn 2007 issue of Directions Donald Nicolson (University of Strathclyde) advocates an extracurricular form of clinic, aimed at providing legal assistance rather than educating students, as a cost effective way of expanding clinical legal education.

The benefits of clinical legal education in developing legal skills, revealing how law actually operates in practice and introducing students to issues of professional ethics have long been recognised. Activist, experiential, student-centred learning, based on solving realistic problems, is likely to be profound and to lead to the lifelong habits of the ‘reflective practitioner’, particularly when emotional engagement with flesh and blood clients is combined with opportunities for guided reflection.

Compared with other English speaking jurisdictions, relatively few law schools have embraced clinical legal education, and even fewer have established live client in-house clinics. Instead, many have opted for simulations and role plays, thus losing the benefits of engagement with actual clients, or for placements with advice agencies, thus raising problems of supervision and monitoring, and potential conflicts between the student’s educational and the agency’s service needs.

There are two main reasons for opting for simulations and placements over live client in-house clinics. The first is that actual cases cannot be guaranteed to raise the desired educational opportunities, while the second is their perceived expense, particularly because a very low staff: student ratio is seen as necessary to protect clients and to teach and assess students adequately. Even law schools with in-house clinics limit student numbers and length of involvement.

These concerns recede, however, if in-house law clinics are not seen as being aimed primarily at educating students and if student participation is not credit bearing. Instead, clinics can be designed primarily to provide legal assistance to those in need. Moreover, the number of clients served and students involved can be vastly increased if they operate on an extracurricular basis – at the clinics I have set up and run at the Universities of Bristol and Strathclyde well over 100 student advisors in each provide a wide range of services (up to and including court and tribunal representation) to a constant stream of clients. Students can be involved for the duration of their university stay (which for Strathclyde students may be five years), and all of this is achieved for less than £5,000 per year and the devotion of a few hours of staff time per day to clinic management and case supervision.

The cost effectiveness of these clinics is made possible by two central differences to educationally oriented clinics. The first is that there is no need for dedicated salaried staff to run the clinic. Instead, students are responsible for all aspects of their cases, including court and tribunal advocacy, as well as for much clinic management, including case allocation, file monitoring, the organisation of training, policy development and ethical decision making. In addition, advice on cases is provided by law school staff and a few supportive local lawyers, who, like myself, regard their involvement as a form of pro bono work. Secondly, rather than closely supervising students every step of the way, helping them to maximise their learning experience and assessing their performance, supervision is both more hands off, concentrating on the final product (the letter, pleadings, decision to negotiate, cross examination strategy, and so on), and more direct, in not being treated as an opportunity for teaching students how to find answers for themselves and to learn from their mistakes, but solely as a means of ensuring a quality service as quickly as possible.

Admittedly, closer supervision and direct action by supervisors in educationally oriented clinics might provide better client service (though in over 12 years of involvement in voluntary clinics I have not experienced any irreparable mistakes). However, this must be balanced against the fact that, with the same level of resources, voluntary clinics can help vastly more clients. At the same time, while social justice remains the dominant goal of extracurricular clinics – both directly through service to the community and through inspiring a new generation of social justice oriented lawyers – they share some of the educational benefits with traditional in-house clinics, while offering some that are unique. Thus, in order to ensure adequate client services, students obviously have to be trained in interviewing, file management, research and letter writing, and perhaps also in negotiation, advocacy and court procedure. Moreover, even case supervision solely aimed at ensuring quality legal services will teach students about new areas of law and how to solve legal problems, while every engagement with and on behalf of clients is a learning experience and may carry important lessons about legal and social justice. In addition, unlike in traditional law clinics, student involvement in clinic management develops transferable skills such as organisation, leadership and public relations. Finally, students who sit on the committee which debates and resolves ethical dilemmas arising in cases benefit from the ethical development which accompanies involvement in what Lawrence Kohlberg called ‘justice communities’.

Recently I have sought to exploit clinic’s educational benefits more directly and to provide formal recognition to students for their clinic work without compromising Strathclyde Law Clinic’s social justice orientation. Thus I have established a course for students to improve their skills and reflect on the ethical and justice dimensions of their cases. However, in order to ensure their long term involvement in the clinic and that they do not come to see clients as means to their educational ends, this course is only open to those who have been clinic members for at least a year. More ambitiously, I am developing a clinical programme which, to my knowledge, will be unique in the world. It will allow university members to be awarded a clinical LLB if they take sufficient classes in which they are assessed partly on their reflection on the legal and extra-legal aspects of relevant cases. Given that students will first have to show their commitment to such aims before being admitted to the clinic, such a programme will allow for a massive expansion of experiential learning without compromising the clinic’s underlying ethos. Indeed, using this model, were the clinic to succeed in attracting the sort of funding that some educationally oriented clinics enjoy, it could vastly expand the amount and range of services it offers to the community with a concomitant increase in the educational benefits of clinic work.

Last Modified: 9 July 2010