Kerrigan, K --- "How do you feel about this client? — a commentary on the clinical model as a vehicle for teaching ethics to law students" [2008] LegEdDig 38; (2008) 16(3) Legal Education Digest 30

• ‘How do you feel about this client?: a commentary on the clinical model as a vehicle for teaching ethics to law students

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‘How do you feel about this client?: a commentary on the clinical model as a vehicle for teaching ethics to law students

K Kerrigan

Inter J Clin Leg Educ, 2007, pp 7–26

This article explores why law clinics can be the most creative, exciting and productive way of inculcating knowledge and understanding of ethical issues and why sometimes they are not.

Claims as to the necessity of a clinical approach are numerous and longstanding. However, there is a body of skeptical comment which remains to be convinced or has reservations as to the ability of clinic to deliver what it promises. I do not wish to deny the existence of problems with using clinic to teach ethics and I certainly agree with the notion that clinic does not guarantee good ethics education but I find myself firmly in the clinic-is-best camp, or rather clinic-can-be-best camp. The key reason for this is that clinical education uniquely places the learning of ethics in the context of real life practice. It provides students with the opportunity to grapple with the laws, rules, principles and values of the legal profession not as an external observer but as a participant and stakeholder. It follows that I think live client work is an essential component of an effective clinical ethics education. This article seeks to identify ways that ethics education in clinic might retain its essential spontaneous value while being structured, rigorous and consistent.

For the undergraduate stage the professional bodies in England and Wales have agreed in consultation with the law schools and scholarly associations a Joint Statement of the outcomes required by any programme which exempts graduates from the academic stage of legal education for practice as a solicitor or barrister. A ‘qualifying law degree’ (QLD) will expect students to achieve at least the minimum level of performance in the Quality Assurance Agency benchmark standards. There is no explicit requirement for a QLD to contain any ethics component as such. The nearest the Joint Statement comes to such a requirement is:

‘Students should have acquired: (i) Knowledge and understanding of the fundamental doctrines and principles which underpin the law of England and Wales particularly in the Foundations of Legal Knowledge; (ii) A basic knowledge of the sources of that law, and how it is made and developed; of the institutions within which that law is administered and the personnel who practice law; (iii) The ability to demonstrate knowledge and understanding of a wide range of legal concepts, values, principles and rules of English law and to explain the relationship between them in a number of particular areas.’

The QAA National Benchmark Standards for Law to which the Joint Statement alludes is similarly undemanding: ‘Study in context: Within different kinds of degree programme, there will be different emphases on the context of law. ... Study in context includes that a student should be able to demonstrate an understanding, as appropriate, of the relevant social, economic, political, historical, philosophical, ethical, and cultural contexts in which law operates, and to draw relevant comparisons with some other legal systems...’

Beyond this there is no requirement for courses to address the ethical rules or the moral foundations of the law or lawyering. Many schools do offer jurisprudence or legal ethics modules to students which provide some foundation understanding of the relationship between legal theory, morality and the law. But these are not currently required by the academic or professional bodies.

At the ‘vocational’ stage of legal education the professional bodies are much more prescriptive as to what and how students should be taught and assessed. The Solicitors Regulation Authority issues written standards that dictate the basic curriculum of the Legal Practice Course. The Bar Council has its equivalent in the ‘Gold Book’.

The Solicitors Regulation Authority written standards contain a requirement to teach students a ‘pervasive area’ of ‘Professional Conduct, Client Care and accounts’ together with financial services obligations. However, this contains no requirement to go beyond the teaching of the basic rules of professional conduct: ‘Students are expected to be able to identify and advise the client on matters of Professional Conduct and Ethics arising both in the compulsory and elective subjects. They should be able to identify and deal with issues that will lead to better client care in all aspects of their work.’

No definition or explanation of lawyer ethics is provided in the standards. The Bar Council is perhaps more demanding of providers of the Bar Vocational Course. The Gold Book specifies that students ‘will be expected to demonstrate a sound working knowledge of the Code of Conduct for the Bar of England and Wales’ and ‘Teaching and learning must be designed to enable students to appreciate the core principles which underpin the Code.’ These principles are said to include the principles of: professional independence; integrity; loyalty to the lay client; non-discrimination on grounds of gender, race, ethnicity or sexual orientation, and ‘commitments to maintaining the highest professional standards of work, to the proper and efficient administration of justice and to the Rule of Law.’ This at least requires students to address principles as opposed to just rules and a potentially challenging consideration of the role of barristers in the justice system including their role as a constitutional safeguard.

There is a relatively narrow and mechanistic view of the concept of legal ethics which is firmly rooted in compliance with those professional rules. Little depth of analysis or reflection is required.

The dearth of ethical values content in professional education programmes perhaps reflects an inability at all levels to agree a common understanding of the role of the lawyer beyond acting on clients’ instructions. This tends to discourage normative discourse and encourage a descriptive approach towards the aim of compliance with the ‘rules’.

As clinics become more widespread and formal teaching requirements are relaxed it is possible that clinics will be seen as the focus for early development of ethical awareness in future legal practitioners.

Employers in the legal profession are likely to see clinic as one means of ensuring that new entrants to the profession achieve competence and compliance with professional conduct rules. I would argue that clinical legal education is well suited to the task of addressing the values, principles and ethical dilemmas inherent in the practice of law. Paradoxically, although the profession may relinquish its control over the content of law courses, there may be increased pressure on clinical providers to play a more formal role in the training of future lawyers.

In other words, what teaching methodology is best able to prompt the hoped-for ethical dialogue? Law clinics in the United Kingdom are a relatively recent phenomenon. Typically, they do not form a central part of the academic or vocational stage of legal education but are seen as added value activities.

There are a wide variety of clinics including full representation in-house legal schemes, simulation clinics, street law/law in the community initiatives, advice-only clinics, representation services, externship/placement programmes and so on. It follows that the approaches towards the teaching of legal ethics are likely to be fairly diverse.

All of the clinicians I surveyed did seek to address the issue of legal ethics in clinical teaching. It can readily be seen therefore that clinic is already used to teach beyond the bare rules — to explore the role of the law and lawyers and to give students space to think and reflect on the impact this has on clients and society. Being at the interface of legal practice and legal education can give students the luxury of time and the freedom of academic inquiry to reflect deeply which many will not experience again.

The dynamic nature of a real case with actual consequences for clients and others does seem to be central to the urgency and responsibility that students feel when dealing with ethical issues in clinics. It also means that the supervisor cannot completely control the way the case will develop. This tends to break down the barriers between student and teacher in that neither may have the answers and they must work as a team to find them. Ethical issues cannot be timetabled into the teaching session in the same way so when they emerge they have a freshness and vibrancy about them.

Ethical learning outcomes are also likely to be many and varied. They depend on the teacher’s own view of the concept of legal ethics and the proper limits of the educative process.

There is a surprising degree of commonality of approach to the teaching of ethics in the clinics I surveyed. Most respondents said that clinic students had little prior learning about legal ethics in their other studies. Within the clinic there tends to be some formal tuition, particularly at the outset of the clinic programme, although this sometimes continues for the duration of the module. There is almost without exception formal instruction on compliance with the rules of professional conduct and this is backed up by a wide variety of materials such as the Code of Conduct for Solicitors, clinic manuals/handbooks, clinic codes of ethics, supervisor tutor packs, ethics seminar materials and a wide variety of ethics and clinic reference books.

In clinics with a number of supervisors there may be an issue with consistency of approach. Such clinics tend to use some common teaching materials but it is difficult to see how ethical discussions (which in clinics tend to be context-specific) can be reduced to ‘tutor notes’ such as those which tend to be used on most professional law courses.

Simulation can wrap around the live client experience in a way that ensures that students receive a basic introduction to ethical issues and extend their thinking about such issues from their real cases. It helps to ensure consistency and coverage of the syllabus. It is obviously possible to teach ethics solely via simulated clinic but ideally live client work will form the core trigger for ethical dialogue with simulation used as a supplementary and added value method.

Similarly, there is a place for more formal classroom-based activities including lectures and seminars which introduce or flow from the real ethical issues. This can help to provide the intellectual rigour that would be missing if ethical dialogue was all conducted spontaneously. Clinic 1 brings small groups together in ‘joint firm meetings’ three times per year to discuss wider issues arising from their caseload. This is often an opportunity for ensuring students read core literature and debate ethical dilemmas.

Clinical teaching is not a panacea and we should not assume that ethics teaching in clinics will always have more value than traditional methods. Clinics have the potential to provide a stimulating environment within which ethics discourse will take place but this requires careful organisation and skilful implementation. There are difficulties for clinicians in trying to engage students with legal ethical issues.

The typical approach seems to be that students will be encouraged to reflect on their experience

within the case discussions. This is consistent with the idea that ethics discussion should be connected to the real life context of the client’s cases. However, it is then difficult to ensure that students develop awareness of ethical debates and theories in order to secure a degree of sophistication in the ethical discourse.

If we are to develop a ‘clear syllabus’ the answer might lie in prior legal theory learning. On my own course we introduced a compulsory module in jurisprudence for all third year students. This comes prior to their live clinical experience so we might expect that the following year our students will come with a solid theoretical framework that will help inform their ethical concerns and upon which their clinical discussions can build. However, ethics forms only a small part of the jurisprudence syllabus and I fear that the temporal and psychological dislocation between the theoretical module and the clinical module means that students do not see the link between the two.

Many clinic supervisors come into the clinic environment direct from legal practice. They have not generally been used to daily wringing of hands over their professional obligations or their wider impact on society. They probably went through a legal education that was fairly silent on ethical issues. They need to be given training, encouragement, materials and time in order to become good ethics teachers.

I have focused on case-inspired discussions as opposed to discrete/abstract teaching sessions. The latter can be valuable, particularly in the early or training stages of a live clinical programme, but once the students start to deal with real people it is much better if the discussion arises out of the real case and, if necessary, is taken further by hypothetical extensions.

Live client clinics provide an excellent opportunity for learning the basic rules of professional

conduct and compliance with professional standards. Rather than the traditional classroom activities students can learn by doing.

In this way they will develop technical knowledge of what the professional codes require and also the ‘how to do’ skills such as drafting client care letters. This approach can become relatively sophisticated as students need to learn how to identify situations which engage professional conduct rules and develop strategies to avoid breaches of the rules. There is scope for use of hypotheticals to enhance the student learning such as, ‘what should we do if the client tells us his list of previous convictions is wrong?’

A reflective approach adopts a more analytical attitude towards the rules and towards the role of the lawyer or legal system. This can and often is conducted on the basis of the students’ own thoughts about the proposition under consideration. However, value is added to such discussions when students are required to complete wider reading about the particular rule or about ethical norms. This approach lends itself to student presentations and student-led discussions whereby the group can reflect on the issues that have previously arisen on a case and review the way they were dealt with.

This approach can be particularly valuable when conducted in the context of a live case, especially if a difficult issue has arisen.

Techniques associated with this model include role reversal whereby students attempt to anticipate how clients might be affected by their interaction with the students, the law clinic, the court system etc. Use of role play can help to make these issues immediate, although often the reality comes from the situation itself. If clients consent to having the interview video recorded then student replay with commentary and peer review can provide an excellent opportunity to reflect on their impact as a legal adviser. Use of hypothetical situations can assist with teasing out the reflective discussions for example, ‘What if the client won the lottery tomorrow — can and should we stop acting for her because other people are more needy?’

The key to this model is asking students to think critically about the role of the lawyer and the role of the law. It might thus involve students in complex and irresolvable debates such as whether wrongful convictions are inevitable or whether a no-fault compensation scheme would resolve the problems of medical litigation. The issues encountered in these discussions are often popular topics for end of module reflective commentaries/essays.

Transformative learning is a theory extensively developed by Jack Mezirow whereby learners embark on a series of developmental stages including self-examination, critical assessment of assumptions, recognition of similar transformations in others, exploration of new roles or actions, development of a plan of action, building knowledge and skills, trial of the plan, development of competence and self-confidence, and reintegration on the basis of a new role and perspectives.

It should start with a ‘disorienting dilemma’ which acts as the catalyst for the process of rethinking. If done in a challenging but supportive environment it can be a constructive and enjoyable process. Moreover, the clinic can provide the opportunity for a number of disorienting dilemmas in that students experience situations that they have never encountered previously and can become overwhelmed by the issues they face.

The key to effective teaching of the lawyer’s role is to ensure that students understand the law is not an immutable set of rules for good or ill but rather a sophisticated and dynamic compromise between competing interests. Students should grasp that lawyers are in a highly privileged position of being able to participate in the resolution of doubt and conflict within the law and that they do not act as wholly neutral locators of ‘the answer’ but bring their own ‘baggage’ to the case.

I have general sympathy with the idea that legal education should encourage students to make their own (informed) decisions and that success should be measured by their depth of understanding and their ability to reason, not the views they ultimately form. However, I have begun to wonder whether it is always inappropriate to try to engineer a particular ethical viewpoint.

Although I would not consciously advocate that my students should have a particular commitment to, say, ending poverty I might be less cautious about something I believe to be not only self-evidently true but also indisputable. I believe torture is wrong. Should I encourage (or require) my students to think (or at least express, at least in assessments that I am marking) similar sentiments? Or should I concede to moral relativism and ask students to come to their own conclusions? More than this, should I ‘represent the diversity of views that exist’?

Does it matter if the moral proposition is a binding professional obligation on lawyers such as the duty not to mislead the court? Should I explore the lawyer’s role in the administration of justice but leave it to the students to decide for themselves whether and when they will abide by the rules and when their moral beliefs dictate the rules be broken? As a teacher of future lawyers am I wholly lacking in any responsibility for the sort of lawyers they turn out to be? If they become dishonest rogues is my conscience cleared if they know why they are rogues?

Thus although I feel generally uneasy about dictating a particular ethical approach, it is inevitable that there will be certain issues where (consciously or unconsciously) I will espouse a particular opinion or alternatively not promote discussion about where the ‘right’ answer might lie (because I know where it lies and I want my students to adopt the same approach).

Clinic, particularly live client clinic, provides a creative, enthusiastic and democratic environment for the learning of the law. A key reason for this is the way that engagement with the real world as affected by real laws challenges moral codes and refreshes ethical thinking. Failure to take advantage of this in dialogue with students would be an abdication of responsibility as a teacher and show a poverty of imagination. This is why, despite the absence of any external imperatives, the teaching of ethics in law clinics continues to be highly valued, debated and researched. Ethics without clinic is artificial; clinic without ethics is sterile. This mutual interdependence ensures a vibrancy that is rare in modern higher education.