Clinical legal education: theory, practice and possibilities

Guidance notes by Philip Plowden (Northumbria University) designed to provide a summary of the main issues relating to the use of clinical education as an integral part of the exempting law degree programme at Northumbria, presented at the UKCLE seminar on alternative routes to qualification in law on 20 May 2004.

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Note: These guidance notes should be read in conjunction with the notes prepared by Kevin Kerrigan, which look in detail at the structure and operation of the exempting law degree at Northumbria.

Kevin and colleagues took the debate further in a paper presented at Learning in Law Annual Conference 10, Can the traditional law curriculum be delivered via clinical and experiential learning? For more on the use of clinic at Northumbria see Carol Boothby’s paper at Learning in Law Annual Conference 10, In the looking glass: reflection on past experience as a key to the future

Without going outside, you may know the whole world

Without looking through the window, you may know the heavens

— (Lau Tsu:Tao Te Ching)

What is clinical legal education?

• clinical legal education – teaching law through exposure to real clients and their problems
• may include:
  • a full law centre casework and representation model
  • advice only model
  • referral service
  • representation only service
  • placement service
  • Street Law and other community projects
  • simulated clinical activity
• generally assessed – but with a range of different assessment methodologies:
  • assessment of live client work
  • assessment by portfolio
  • assessment on reflective commentary
  • assessment on clinic-related project
  • non-assessed, voluntary activity

Why use a clinical approach?

I owe everything to a group of students who believed in me…and refused to allow a terrible miscarriage of justice go unnoticed.

— (Alex Allan on the overturning of his conviction, Daily Mail)

[The students’] efforts were quite brilliant and utterly outstanding. All I did was present the facts – they did all the work.

— (Ed Fitzgerald QC, Daily Mail 12 July 2001)

Law in action

• ‘going outside’ – law in action
  • clinical education brings together the ‘inside’ – classroom and library based activities – with the ‘outside’ – the reality of sometimes unhelpful clients, of unreliable facts, and of complex situations which are not susceptible to simple legal solutions
  • ‘outside’ there is the reality of legal advice deserts, of the high cost of legal proceedings, of imbalance in access to legal assistance. These are rarely issues that are addressed when looking at legal principles ‘inside’.
  • but similarly, ‘outside’ there may be a tendency for lawyers and advisers to overlook basic principles of black letter law, to ignore ethical issues, to eschew reflection on the implications of the work that they are doing
  • clinical education takes a ‘whole world’ view, seeking to bring both types of legal learning together
• ‘knowing the whole world’ – clinical education may provide the most effective method of providing a meaningful justice education
  • “It’s not fair”: at what point do lawyers lose their capacity for outrage?
    In the clinical context students are exposed to the realities of individual injustice, and of structural injustice. The evaluation of the individual case may serve as a springboard for wider reflection on the limitations of existing legal principles.
  • when do we teach – and students learn – what justice means?
    The clinical context enables a wide reflection on what may be equitable. Students may need to confront the fact that their own client’s demands may be ‘unfair’ for others, and will need to confront the role of the lawyer as a potential source of injustice.
  • is jurisprudence the most black letter of black letter law subjects – or the most practical?
    Jurisprudence is too often seen as the most abstract – and thus separate – element of the curriculum. Clinical education can draw upon the jurisprudential context so that students can test the different jurisprudential approaches against their own perception of their clients’ rights.
  • How can we embed justice education into the curriculum?

Does the clinical approach work?

• commitment and zest
  • “I wandered into the Student Law Office at 8.15 on a Monday morning and it was already busy with students at work on their cases.“ (visitor from another law school)
  • engaging the full range of student abilities and skills:
    Most supervisors in the clinic note the way in which some students who have not performed strongly in the more traditional academic elements of the programmes can flourish in the more practical context of the Student Law Office.
  • relevance to those not intending to go into legal practice:
    Students continue to see the Student Law Office (SLO) as having ongoing value, even where they have decided not to pursue careers in law. Besides the obvious office place skills, the SLO also provides invaluable opportunities to hone interpersonal skills, and related writing and drafting abilities. (“Again the skills acquired are transferable and useful in many future non-law careers.” – feedback from student)
• reflective practitioners
  • what do we mean by a ‘reflective practitioner’?
    Reflection is what allows us to learn from our experiences: it is an assessment of where we have been and where we want to go next. (Kenneth Wolf)
  • why assess students on reflection?
    • lack of later opportunities for reflection
    • not simply a grading on the basis of performance, but on critical awareness of performance
    • equipping students with developmental tools – and fit with the ‘lifelong learning’ agenda

I have found that it is easy in practice to be too busy to have time to reflect…In the Student Law Office, I was given the space to consider the importance of the role of a lawyer as an advisor and representative of the client, experience which I now find invaluable.

— (former student)

• ethical awareness
  • when do we teach ethics at the undergraduate and postgraduate stages?
    The increase in interest in ethics as a subject for legitimate enquiry – but can it suffer from a perception as a subject with a high degree of abstraction.
  • separating ethics from the mere teaching of professional conduct
    Teaching professional conduct rules on the vocational law courses – should this be a terrible warning of the meaninglessness of teaching rules without context?
  • enabling the range of responses to ethical issues
    Has the point come where we need to recognise that there is an interface – but not a complete contiguity – between ethics and ‘professional conduct’, and in relation to the former there is an important range of responses that need to be explored.
  • bringing home the reality of ethical issues in everyday law
• re-invigorating the study of legal principles
  • “But I did Contract last year…” – revisiting familiar (?) legal principles
  • “But this is just negligence, like we did in Tort…” – applying legal principles in context
     
    These two points are closely inter-related. We will all be familiar with the student need to pigeonhole subject matter – as we teach them to do by categorising modules and their assessments. This leads to an understandable tick box mentality – “We did that last year; I don’t need to know it any more.” It also leads to overly rigid compartmentalisation – “If this is an Employment case, then I don’t need to consider Tort.” The complexities of live client work mean that they come to be aware of the need to bring all legal principles to bear on a problem – and to look at the wide picture.

Clinical work and depth of understanding

I felt I learnt so much more, dealing with my cases in practice, rather than just learning all the theory side of the subject.

— (student feedback, 2003)

The intellectual rigour which we advocate involves not just knowing and understanding but acquiring and using relevant skills that allow one to put theory into practice. Learners should be actively involved in solving real problems that require the use of deeply understood knowledge.

— The Lord Chancellor’s Advisory Committee on Legal Education and Conduct, First Report)

• active learners
  • who has ownership of the case – and the client?
  • who has responsibility for the case – and the client?
  • working in partnership
     
    Clinical work vests the ownership of the learning experience firmly with the students – and one challenge for staff working in this environment is to find a balance between maintaining that ownership at every level, but at the same time guiding the student, and protecting the interests of the client. The work becomes a partnership, with the relationship changing as students become more able and more autonomous. Students will also often work in pairs, enabling a sharing of experience, responsibility and of mutual assistance.
• learning to deal with emotion
  • winning, losing and the frustration of settling a case
  • nice clients, nasty clients, hopeless clients, and clients who know more than you do
  • dealing with pressure: time limits, representation, opponents
    The learning is broader than simply the development of key black letter law skills, or of the deepening of lawyering skills. Clinical work puts the emotional content back into law. It is in part this which engages students by revivifying law.

[Clinical work] re-enforced my interest in the subject as it transformed what seemed like an academic subject into a practical one with very real consequences that I felt I could shape. My perceptions of employment law changed drastically as did my view of the law in general. It reminded my why I wanted to study law initially.

— (former student)

• an employability agenda?
  • a pure lawyering skills agenda?
    We certainly see the key elements of the learning process as being the honing and development of higher level knowledge of black letter law – albeit that that development is grounded in the demands of everyday legal practice. What better way to learn about the principle of locus standi than to have to address it as an issue in preparing a case for judicial review? What better way to understand the separation of powers than to have to consider the judgment of the court deferring to Parliament?
  • office skills – interpersonal skills – communication skills: all matters simply for the workplace?

They join us with a real understanding of the central role of clients in all that we do. This level of understanding is not always immediately apparent in those who have not had an opportunity to work with clients during their degree course…Perhaps most importantly they come to us with an air of confidence believing that they can do the job. The confidence that they exhibit is often apparent in other aspects of their work, not just in relation to dealing with clients. In describing their experience to me, more than one of our current trainees or solicitors has used the word “invaluable”

— (letter from commercial law firm)

Fitting clinical work into legal education programmes

We are convinced that clinical legal education provides a rich and demanding learning experience, which combines problem-based learning with experiential learning, often in a disorientating swamp of emotion, which is immensely challenging but valuable for students. It has a profound affect on the students’ appreciation of how the various components of law that they study fit together and gives them an invaluable overview that then informs their future learning. However, perhaps the most valuable aspect of clinic is the motivation and confidence it gives students.

— (Chris Maguire, Senior Education Officer, Bar Council)

• views from the professional bodies
  • Training Framework Review (TFR)
  • possibilities for future vocational education provision
    As is to be expected, the professional bodies are very supportive of clinical experience, in all its contexts. The TFR proposes an outcomes-based approach which has the potential to further undermine categorisation into academic/vocational/workplace. Clinical education has the capacity to support all three elements.
• clinical work on degrees and vocational courses
  • modules on degrees – compulsory or voluntary
  • options/electives on vocational courses.
  • integration of clinical education as part of a problem-based learning approach?
• practical issues
  • who pays?
    Clinical work is expensive; how can it be funded within existing fee levels.
  • who insures?
    The need for indemnity insurance. Consider the Solicitors Pro Bono Group scheme. Alternatively, consider institutional insurance. [Note the particular demands of the Solicitors’ Conduct Rules if the clinic handles client monies.]
  • where do the clients come from?
    Word of mouth. Advertising. CLS partnership. Voluntary sector and legal services referrals.
  • who teaches clinic?
    Do you want a separate clinical staff – on the model of some US institutions? Relying on the existing staff? Recognising demands on staff time.
  • how is it assessed?
    See above – a vast topic in its own right.
  • How to select students?
    Not necessarily problematic – but an issue that may need considering.
  • Student/client responsibility issues
    A brief note that in clinic the ultimate responsibility, in my view, has to be to the client. How does this fit with traditional student-centred models? What if the student underperforms because of personal problems? What if the student simply can’t cope?
• problems and pitfalls? A personal and very subjective list of things that I worry about in running clinical programmes:
  • assessment generally
    See above.
  • narcissism and reflection.
    Reflection can become narcissistic – that is, unproductive and self-serving. How do you keep the critical edge?
  • assessing group contributions.
    If students are working in groups (see above on the virtues of shared ownership) you need to be able to address the respective contributions.
  • imbalance of workload.
    Different cases – different clients – different outcomes. Clinical work is intrinsically uneven – how do you ensure sufficient commonality of experience to ensure comparability of outcomes?
  • insurance, negligence and the role of the supervisor.
    Aka – your life in their hands. Or your practising certificate at any rate.
  • supervisors’ reluctance to let go of cases.
    Finding a balance between student ownership and your own experience.
  • combining clinical work and classroom teaching.
    In my view the hardest of all – the need to combine different mind-sets between traditional classroom based teaching and the more flexible but open-ended clinical context.

The Student Law Office as an example of clinical legal education

What is the Student Law Office (SLO)?

The SLO is the clinical legal education programme at the Northumbria University. It has been running in its current form for over ten years, and the law school has been involved in clinical legal education for a long period prior to that.

What do students actually do in the Student Law Office?

The Student Law Office programme has two stages:

1. Year 3 simulated client programme – in Year 3 of the Exempting Law Degree students spend a year on a series of simulated cases which help to introduce students to the specific office procedures required by the SLO, and which also help to further develop the legal skills introduced on Year 1 and Year 2 of the degree. In particular, the programme focuses upon the skill of Practical Legal Research, and students are assessed on both PLR 1 and advocacy during the programme. Much of the course is taught through a problem-based learning approach developed from innovative law and medical degree programmes in the UK, Europe and North America.
2. Year 4 live client programme – in Year 4 students undertake live client work, taking on cases for members of the public and offering a full legal range of legal services. Students will undertake each stage of the case, from the initial advice interview through to representation. (Where students are unable to represent, for example because of rights of audience issues, the client will normally be represented by a member of SLO staff.)

There are 15 LLB Year 4 firms in the SLO this year.

What is done will vary from case to case but will generally include:

• initial fact finding interview
• basic research and preparation of research report
• advice interview
• written follow up advice
• drafting of correspondence with other parties and any relevant documentation
• where required, negotiations with other parties and liaison with the court or tribunal
• where possible, representation at the court or tribunal
• where necessary, advice on appeals or future action

LPC/BVC elective

As of 2003-04, the Student Law Office programme has been validated as an elective on the LPC and the BVC. The elective runs from January to early June. Numbers are limited – in contrast to the LLB programme which is compulsory for all students.

How are students able to do this work?

Students work in groups of six or seven (‘firms’). Each firm is supervised by a member of law school staff. That supervisor will be qualified either as a solicitor or as a barrister. All work that the students do is first checked for accuracy and quality by the supervisor.

Is this a pro bono service?

The basic principle is that the work that we do is pro bono. Certainly we do not rely upon external funding in order to run the Student Law Office. However, we have specialist Community Legal Service quality marks in three areas (housing, employment and welfare benefits), which fund a limited number of ‘matter starts’ each year. The primary purpose of the franchises is not to raise money but to confirm that the work the SLO undertakes is done to the very highest standards. Additionally, our retainer enables us to recover money where the client is awarded costs in successful cases.

What sort of work does the Student Law Office take on?

At present the SLO is divided, for administrative reasons, into three areas of work: civil, employment and housing. In fact we also continue to take on work from outside these categories – such as miscarriage of justice work and minor criminal cases.

• civil – this category includes everything from consumer disputes to Criminal Injuries Compensation Authority cases. Firms also do family law work and the whole range of general civil litigation matters. In the context of personal injury, there are restrictions on the work we can do, since we are not at present able to offer indemnity insurance – which means that we often need to advise clients that it is in their best interests to have their case referred to a firm which can offer them After The Event insurance. One firm of civil students works with input from commercial litigators from Eversheds solicitors. Another civil firm has been involved in actions against the police with the north east’s leading legal aid firm Ben Hoare Bell & Co. We are seeking to expand these links with firms who have differing areas of practice in the north east.
• employment – students take on the full range of employment cases in the Employment Tribunal and in the Employment Appeal Tribunal. Cases include non-payment of wages; unfair dismissal; sex discrimination, race discrimination and disability discrimination; Working Time Regulations and other areas of generalist employment work. Since there are no rights of audience issues in the Employment Tribunal, students will generally undertake the advocacy at all hearings on these cases.
• housing – housing law is an area where there is substantial unmet need in Newcastle, and the SLO is fast building a reputation as one of the few sources of high quality advice and representation in this area. In addition to taking on the range of private and public tenancy disputes, students attend possession days at the local courts and are often able to represent clients at hearings. Because of the close interface between benefits and housing work, two firms of students specialise in welfare benefit work, representing clients at local Social Security Tribunals and advising on Commissioners’ Appeals.
• criminal cases/miscarriage of justice cases – it can be difficult for us to take on standard criminal work because of the short timescale and the need for qualified representation at court. We are, however, able to take on such cases on an occasional basis, and students brief the relevant supervisors who do the advocacy. The SLO has been involved in a number of miscarriage of justice cases, and has a national reputation for the work that we do. This is likely to be an area of expansion in future.
• non-contentious work – a small pilot project in advice giving to charities, particularly about formation, has begun. This work is supported by the module leader from the Law of Business Associations team.

Last Modified: 4 June 2010