Establishing a clinical legal education program

In document Clinical Legal Education (Page 63-72)

a) Whose support do you need to start your legal clinic?

Depending on the country in which you might establish the legal clinic, there will be differing issues regarding the approvals necessary in order to establish a legal clinic. In some places, approval of ministry officials is required; in most places, university support is necessary. Although it is often helpful to have the support of the judiciary and practicing lawyers in your community, this is not always possible, at least at the inception of the clinic. If the university or legal profession is not supportive, marshaling student and community support will be key issues for success. Legal clinics frequently begin with the support of a few members of the faculty who are willing to donate time, enthusiastic students, and a base of clients in need.

b) What are the financial issues to consider when starting a clinic?

Clinical legal education is often more expensive than traditional legal education. While a traditional law professor may be able to teach 150 students in one class section, the clinic student/teacher ratio is much smaller, often comprising less than 10 students per instructor, because of the time-intensive and individualized nature of clinical teaching methods.

Clinics also take up more physical space within the law school, requiring interview space, conference and student work space, office space for professors, and space for computers and related technology.

A key issue is how the clinical instructors will be paid. Sometimes they are not paid at all and must teach in the clinics in addition to their regular teaching duties. In law schools, the regular teaching workload of clinical teachers is adjusted in order to allow them to teach in the clinic. In others, clinical teachers are paid a supplemental salary from foundation grants. Other paid positions required by a clinic might include part-time practicing lawyers working as supervisors and an administrative assistant to run the clinic office. Sometimes students are hired to be part-time office managers.

Foundation grants may be available for some new clinics to cover a portion of these costs, but often a clinic must be able to show that it will be sustainable into the future once the grant period terminates.

c ) What will be the subject matter of the clinic?

When choosing the subject matter of a clinic, the following issues should be taken into consideration:

the availability of instructors to set up and teach in the new clinical law program

the areas of law in which the best teachers specialize

the most common legal issues affecting the poor in the community

the kinds of cases that will allow students the greatest range of practice

the legal subjects that students been exposed to in their substantive classes

Legal clinic practice areas in Central and Eastern Europe, Russia, and Central Asia Law schools in the region’s democracies have chosen from a variety of legal specializations as vehicles for teaching lawyering skills. Among the most popular are the following:

 Civil law practice (including marital and family law, wills, estates and inheritance, and property disputes).

Due to the breadth of this area, clinics usually select subsections of the civil law on which to focus. The services provided by these clinics include advising and representing clients in divorce cases, custody determinations, distribution of marital property, and related matters;

advising, assisting, and representing in matters arising out of wills, or the absence of wills after a party’s death, disappearance, or incapacity; and advising and representing in matters related to familial property, demarcation of property between neighbors, property

privatization practices, dissolution of partnerships, and collectives.

 Refugee and asylum law. Serving the legal needs of internally displaced people, refugees and asylum-seekers.

 Human rights (often combined with refugee and asylum law clinics). Assisting clients in disputes with state administration and filing applications to the

European Court of Human Rights for violations of human rights protected by the European Convention on Human Rights, such as the right to fair trial or the right to freedom of expression.

 Criminal law and procedure. Advising and representing clients charged with less-serious criminal offenses.

 Environmental law. Representing individuals and organizations who are seeking to protect the environment.

 Administrative law. Providing representation in matters concerning official permissions, licenses, and other legal issues that involve interactions with and hearings before administrative agencies.

 Not-for-profit law. Providing legal advice and assistance to NGOs on formation, registration, taxation, and transactional issues.

 Street Law (teaching). Training students to teach law in secondary schools and other institutions.

d) Who will teach in the clinic?

Clinic teaching is different from academic law teaching in that it involves knowledge about the practice of law, not just theory. Sometimes clinic teachers or supervisors are practitioners who have never taught before. In such situations, teacher training in the interactive methods and pedagogy of clinical teaching are crucial to the effective operation of the clinic. On the other hand, clinic teachers may be professors who have never worked on a real case. Under such circumstances, the clinic instructor may be paired with a

practitioner who agrees to work with the clinic. In any event, the background of the teacher who is chosen to teach in the clinic will greatly influence the choice of the type of clinic and its subject matter.

e ) How will students be selected and what type of credit will they receive?

Student selection policies differ from clinic to clinic; what is important is that there is a policy regarding the number of students who will be allowed to participate in the clinic in each academic year or semester, the required background of the students, and the academic prerequisites to taking the clinic.

Each of the universities that offers clinical legal education has chosen its own strategy for introducing the concept into its particular system of legal education. Some law schools clinics fulfill the university requirement. Other universities offer “legal clinic” as one of

the total number of courses required for graduation. Still others allow the clinical course in a particular subject area to substitute for advanced-level lecture courses in that subject area.

f ) Determining the scope of student practice

Laws of Central and Eastern Europe, Russia, and Central Asia vary significantly as to what responsibilities non lawyers can undertake. In some countries, the civil procedure codes allow defendants and parties in civil suits to represent themselves or to allow another individual (a non lawyer) to represent them. Under such a provision, a client could

authorize a student to represent the client in court (in conjunction with the supervision of an experienced attorney) by a power of attorney. Many nations procedural codes establish types of cases in which only licensed advocates may represent a party in court.

Some aspiring clinicians have addressed the issue of authorization to appear in court on behalf of clients by campaigning for affirmative legislative approval of student practice.

Another approach might be to convince specific judges and prosecutors to allow limited student argument or witness questioning in court on an experimental basis as a matter of their discretion. However, it is important from an ethical perspective that clients understand they will be represented by students, and that they give their written consent to this

representation.

The value of a student’s practical experience, however, does not hinge on appearing in court. Students can perform a tremendous range of vital legal tasks for a client without entering a courtroom. Students can engage in pre-litigation or other activities on behalf of the client, investigate law and fact, draft memoranda recommending legal actions,

interview and prepare witnesses for court testimony, and prepare complaints or pleadings for either a client’s or a licensed attorney’s signature.

g ) Developing policies and procedures relating to student work

It is vital to develop clear policies and procedures for students regarding all aspects of the organization and administration of the clinic, including the number of hours students must spend working on clinical matters, their responsibilities in the clinic, record keeping, and ethical matters. Every clinic should have a set of policies and procedures so that the

students know their responsibilities in all areas, including record keeping, ethics, classroom work, interacting with clients, keeping time records, and so on. New legal clinics will find that by preparing a policies and procedures manual, they will resolve all of the most important issues in setting up their clinic, from the organizational structure to practices regarding supervision.

Ten Practical Steps for Organization and Operation of a Law School Clinic

Richard J. Wilson has suggest these ten simple steps to any law school in the world, based on belief that the experience of law school clinic design and teaching is universal and capable of being applied in any culture. 55 The ten steps need not all be taken at the same time; gradual implementation of these steps toward an “ideal” clinic is progress The ten steps derive from a common set of questions that all of us must ask ourselves as both legal educators and lawyers. They are so basic that we sometimes forget to ask them, but they certainly include the following:

Organizational Steps

Step 1: Decide on the goals or objectives of the clinical component of legal education within the general scheme of legal education in your own institution. Successful clinical programs are designed in response to local conditions and capacities. Among the many possible goals that your clinic might have are the teaching of problem-solving techniques;

action in role; collaboration; professional responsibility; technical skills competency; time management; sensitivity to issues of gender, ethnicity, religion or culture; written or oral advocacy and persuasive skills; doctrinal manipulation to advance an actual legal claim;

critique of legal institutions, and others. At American University, we give primacy to the goals of work with facts and factual development (on the assumption that other law school training focuses almost entirely on law or codes, either substantive or procedural); theories of practice applied consistently to the cases and clients of the clinic; and the concept that one case is a metaphor for all cases, thus making efficiency a lesser goal than the

necessarily slow unfolding of student and client decision-making through deliberate planning, doing and reflection. Another aspect of goal setting is that of situating clinics within the broader educational requirements for admission to law practice in the particular jurisdiction. In addition to a period of formal legal education, those rules may require a post-graduate period of apprenticeship; specialized training for prosecutors, judges or court advocates; mandatory social service during law school; a bar examination and/or

mandatory enrollment in a bar, or other such steps toward licensure. An effective program of clinical legal education can work in combination, not in competition, with other aspects of legal training, all of which share the common goal of preparation of lawyers for

competent professional service.

55 Richard J. Wilson clinical teacher, Professor of Law and Director, International Human Rights Law Clinic.

Step 2: Identify appropriately trained personnel to be dedicated to the clinic. Clinic is like no other aspect of legal education; it is, in effect, the establishment of a law firm within the faculty. One fundamental question, therefore, is the characteristics of a “clinical professor.”

In my view, the professor working in the clinic would be involved in both case supervision and classroom teaching, which tends to create sufficient responsibilities for full-time employment in the law school. The question of the status within the faculty of the clinical professor should be clearly established before the clinic is opened. A teacher should not take on clinical work in addition to classroom teaching responsibilities without appropriate recognition and adjustment of teaching load and/or compensation, due to the demands of clinical teaching. Because many law teachers outside of the US are part-time academics as well as local practitioners, that combination contributes to excellent potential as a clinical supervisor. Another common option is to have a faculty member coordinate the clinic and teach a seminar while local experienced lawyers, hired to work in the clinic, provide case supervision. The number of teachers dedicated to clinic will be a function of the number of subject areas offered, student interest, short and long-term resource commitment and other factors. In the United States, a 1990 survey (the last national survey of clinics) shows that the average ratio of teacher to students in a clinic was just over 1 to 8.2 In addition to teachers, the clinic may require support personnel who are skilled at contact with the public and trained in making referrals, unless these functions are to be filled by students. An office manager may be necessary in larger programs.

Step 3: Select the subject matter area in which the clinic will practice. Again, this issue is usually an intensely local decision, depending on the geography, courts or government agencies as well as the composition of the client constituency to be served. A formal survey of such issues may be appropriate before work is begun. The basic issues will include whether the clinic will engage in litigation only, as is the usual tendency, or in other areas of practice, such as transactional, legislative or other policy advocacy, or long-term

community development. The most common starting place for a new clinical program is in a subject-matter area such as criminal, civil, administrative, or family law practice. Other options include particular legal themes or mechanisms (discrimination, minority rights, human rights, public interest, community development, Street Law, NGOs, mediation, legislation, etc.) or affected groups (women, children, indigenous peoples, refugees, prisoners, etc.). Choice of practice areas is often a function of the interest or motivation of a particular professor, whose commitment to the long hours of clinical work may be driven by experience, passionate dedication or scholarly interest.

Step 4: Select a time period for student enrollment in clinic and the appropriate academic credit to be awarded for clinic participation. The most common time period for student enrollment is one or two semesters, sometimes with an option for re-enrollment. Any clinic needs to decide what to do about academic interruptions such as summer and vacation closings. Court and government operations usually continue during these breaks, and either students or faculty will remain responsible for cases during such periods. Again, the level

of student involvement in case work may influence their credits, and students should not become a substitute for government responsibility to provide subsidized legal services to the indigent, consistent with constitutional and human rights obligations. Confusion in the goals of teaching versus service to the public can result in a failure on both counts: lack of adequate training of students and poor quality of service to clients. The typical caseload of a typical two-student team in clinics at American University is 3-5 active cases at a time.

Step 5: Devise a system for effective student evaluation or grading. Participation in clinic can be on a pass-fail basis, or grades can be given. Evaluation in clinic is highly complex and necessarily subjective, even in the rare cases that exams are given at the conclusion of clinic participation. This is because the student experience in cases is variable depending on clients, court schedules and other indeterminate factors. In fact, as one colleague asserts,

“grading can become the enemy of learning.” We use a system of self-evaluation in which students write reflective memoranda on their experience in the areas that we have set out as clinic objectives: case theory, client interaction, collaboration, time management, etc. We give grades for both casework and seminar.

Step 6: Have a system in place to recruit both students and cases to the clinic. When a clinic is new to a law school, students may be skeptical about its utility to them. They must be convinced of the value of clinical study unless participation is mandatory. They quickly see that clinic participation is exciting and challenging work that makes them more

employable after graduation. If the clinic requires certain pre-requisites to enrollment, students should have ample notice of those requirements. At American University, where interest in clinic always exceeds our capacity to enroll students, we use a system that includes a general informational meeting before the filing of a written application, followed by selection based on student preferences, all in advance of normal enrollment periods.

Selection of students for clinics can be based on open enrollment (all who apply are accepted), grades, previous experience, or lottery. The system is a “guided lottery,” in which some preference is given to those students who have not yet enrolled in clinic and do not have another opportunity, as well as special needs, such as racial and gender balance among students and language skills. Case recruitment is also an issue. If clients are

expected to come to the law school or a separate clinic facility, they must first know of the availability of services. That process of publicity of the clinic involves publication of flyers and other use of local media to publicize access to the clinic, visits with courts and other public meeting facilities, and word-of-mouth. If cases are taken on referral, local NGOs or other referral sources must be cultivated to establish appropriate protocols for case referral and oversight.

Step 7: Establish a budget and reliable financial sources for the clinic. Many would list this as the first and all-important step. I see it, however, as an effect of good planning, not a

cause. If the clinic has good objectives and goals, it will quickly acquire legitimacy within the law school and the surrounding community, and its legitimacy will attract funding. The long term objective is that the law school itself will provide stable and ongoing funding of clinical instruction as a key component of the curriculum, and that the value of clinical education to the students, faculty and legal community will more than make up for the labor intensive work of the faculty in this context, just as has been true of all the other professions that use clinical training as an aspect of their training.

Operational Steps

Step 8: Build new and ongoing relationships in the legal community outside of the law school. For a clinic to operate effectively, it must have strong ties in the legal community outside of the law faculty. These include the local bar, judges and other court officials, ministries and other government agencies providing services in areas in which the clinic works, NGOs, and other law school faculties. To provide competent legal services, a clinic must have a comprehensive means of keeping its teachers and students abreast of current developments in law and legal institutions through publications and continuing legal education conferences, email, Internet and other means of communication. In the United

Step 8: Build new and ongoing relationships in the legal community outside of the law school. For a clinic to operate effectively, it must have strong ties in the legal community outside of the law faculty. These include the local bar, judges and other court officials, ministries and other government agencies providing services in areas in which the clinic works, NGOs, and other law school faculties. To provide competent legal services, a clinic must have a comprehensive means of keeping its teachers and students abreast of current developments in law and legal institutions through publications and continuing legal education conferences, email, Internet and other means of communication. In the United

In document Clinical Legal Education (Page 63-72)