Foley, T et al --- "Teaching professionalism in legal clinic – what new practitioners say is important" [2012] LegEdDig 36; (2012) 20(3) Legal Education Digest 11

• Teaching professionalism in legal clinic – what new practitioners say is important

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Teaching professionalism in legal clinic – what new practitioners say is important

T Foley, M Rowe, V Holmes and S Tang

International Journal of Clinical Legal Education, Vol 17, 2012, pp 5-22

Anecdotal evidence suggests new lawyers may struggle as they begin legal practice. Little is known empirically about their actual experiences. Preliminary analysis of data from interviews and from workplace observations suggests clinical legal education can play a significant role in smoothing the transition and helping new lawyers develop their sense of professionalism, into their vocational training year.

The eleven participants in this pilot project (four males and seven females) include newly admitted lawyers in private practice (small and medium firms, specialised family law and criminal law practices) and public practice (government legal department, legal aid and community legal practices).

Ideally, participants were interviewed twice (early and late) in their transitionary year. Interviews were also conducted, where possible, with supervisors and with ‘significant others’ in the practice.

Before we began we developed a number of hypotheses about what factors would be influential. We hypothesised, for instance, that issues of acquiring competence and gaining autonomy would be core influences. Competence and autonomy did emerge as important, but participants also highlighted exposure to situations which we termed ‘dramatic learning events’ as being particularly influential in their progress.

In a similar way, we found that participants placed particular importance on learning to deal with uncertainty. While we had assumed that learning to deal with the emotionality of practice would be important, we had also surmised that law graduates would not anticipate the extent of its intrusion into their legal work. We had assumed they would see the need to integrate the emotional and intuitive aspects of practice in order to make a successful transition to practice. However, the data analysis showed that dealing with emotions was only one aspect of uncertainty management and that this factor in itself featured far more prominently in what they told us.

From this combined process of inference and analysis we isolated the three factors described as important to a smooth transition. New lawyers said they needed exposure to experiences which allowed them to (1) develop their confidence and competence in their practice by being permitted to balance personal autonomy with appropriate mentoring and supervision. Participants had much to say about their experience of surviving ‘dramatic events’; (2) realise that practice was more than a rational and rule-based activity, and one that of necessity involved persuasive uncertainty. Their responses often disclosed feelings of uncertainty about their role as lawyers, about the law itself and about how they were to deal with the complexity of ‘real’ people displaying ‘real’ emotions; and (3) find a comfortable ‘value accommodation’ between their own developing professional sense and the professional values modelled and practised by their firm.

The first group of necessary experiences we describe as ‘controlled free fall’. ‘Controlled free fall’ is used to suggest that an effective transition to practice is aided by a work environment that meets the need for competence and autonomy, while exposing new lawyers to ‘dramatic learning events’ within a framework of close mentoring.

Professional competency is seen to emerge through a balance of autonomy and supervision. Self-determination theory, for instance, draws a strong connection between the satisfaction of certain basic psychological needs (principally autonomy and competence) as one means to psychological health and well-being.

We see competency as a baseline professional duty for lawyers. The work that legal professionals do requires the resolution of legal issues, the creative documentation of transactions, the consideration of rapidly changing areas of law, and (at times) the conduct of controversial litigation. Even routine and repetitive tasks require varying degrees of discretion, challenge, skill and expertise.

‘Autonomy’ refers to action characterised by choice rather than by actual independence. ‘Autonomy’ in the context of legal practice involves the exercise of judgement or discretion to select the relevant knowledge and appropriate techniques for performing particular legal tasks. Legal practices must provide the necessary, ‘autonomy-support’ for new lawyers to acquire this capacity. Such ‘autonomy-support’ involves giving them choice as to how to approach tasks where such scope is feasible, and providing a clear rationale when the choice is limited to ensure their perspective as to how things should be done is at least taken into account.

In two longitudinal studies, Sheldon and Kreiger show that enhanced feelings of autonomy and control are particularly important for the success of law students.

The participants in our own project confirmed the importance of supervision which allowed this sense of autonomy and competence to grow.

Participants spoke of their development in two parallel ways – increasing their capacity for autonomous practice, whilst being well supervised and supported in their work especially in relation to difficult and unfamiliar tasks. The first twelve months of practice involved finding this balance between excessive hand-holding and unsupervised practice.

Effective supervision provided the safety net, even when it appeared to conflict with the new lawyer’s own perceived competence in a particular task.

For most participants, ‘competence’ meant feeling in control. They felt this sooner in relation to tasks like drafting documents or managing general correspondence. These were tasks that could be planned and were not immediately time-critical and so permitted research, review and reflection. In contrast, it was irreversible and ‘on your feet’ tasks, such as giving ad hoc advice or handling unexpected developments in court where they felt less competent and consequentially less autonomous.

Conversely, exposure to experiences outside their comfort zone caused their sense of autonomy to grow. Almost all participants reported instances of ‘dramatic learning events’ within their first 12 months of practice.

‘Reflective practice’ involving reflective conversations with themselves or with others in the practice was also crucial. These conversations allowed a combined or gradual balancing of the known, safe and comfortable with exposure to the unknown and unfamiliar.

This is the combination of experiences we have described as ‘controlled free fall’. The transition to effective practice will be hampered where such an exposure is missing or where it is unsustained after an initial period of development.

New lawyers quickly made the discovery that uncertainty is a constant in legal practice. Their comments showed an increasing awareness that they needed to learn to manage such uncertainty. The uncertainty they face is essentially value neutral, it can be either positive in the sense of providing opportunities for change and strategic advantage, or negative as a source of confusion, alarm or chaos.

Smithson lists four everyday challenges that by their nature will require an appreciation and an acceptance of the positive aspects of uncertainty: (1) dealing with unforeseen threats and solving problems; (2) benefiting from opportunities for exploration and discovery; (3) crafting good outcomes in a partially learnable world; and (4) dealing intelligently and sociably with other people.

One exception is the analysis provided by Flood who sees managing uncertainty as a central role for lawyers. He articulated two sources of such uncertainty – that due to incomplete grasp of knowledge, and that based on the limits of current knowledge itself. A comparison he used is doctors-to-be who come to realise that ‘feelings of uncertainty will never depart’ and that at best they must learn to negotiate uncertain situations as their own experience grows. The same realisations come later to lawyers-to-be given that ‘the maw of uncertainty where [appellate judicial decisions] are rarely invoked, and where solutions are not always found but often created’ is something they will only really confront once practice begins.

Our new lawyers found they needed to manage uncertainty both in resolving open conflicts where uncertainty was already present (in criminal matters, family law conflicts, commercial disputes etc.) and in situations where there is no clear likelihood of resolution, but at best a hope of reaching an, ‘open ended truce’.

New lawyers found the habit of constantly asking questions and waiting for further information to emerge was one strategy by which to confront the uncertainty which arose in these situations. When they felt less certain in ‘controlled’ situations, such as court work they were hampered because they had less time for reflection.

Ideally, the practice in which new lawyers are based will provide them with opportunities to address these feelings of uncertainty through adequate mentoring and preparation.

Law students may find themselves well trained to think in terms of applying the law to concrete, well-defined problems (to ‘pick out the issues from the facts, apply the law, and come to a conclusion’) but much less prepared to deal with potential uncertainties, particularly those produced by the emotional aspects of practice.

The emotional aspects are heightened in situations of complexity and where full communication is lacking. The lawyer must be open to the particular challenges this produces. Their and their client’s emotional reactions will influence their judgement and will create situations in which their rational-and-logical skills are insufficient for the task. Learning to manage this becomes a key additional practice requirement.

There is also an overlap between the requirement to have ‘controlled free fall’ experiences and the need to learn to accept and make use of uncertainty. Novel problems and challenging tasks, when supported by appropriate mentoring and supervision, will heighten uncertainty-related exposures. Firstly, there are situations where the new lawyer must confront ‘known unknowns’, that is tasks and situations in which they know that they lack experience or competence (e.g. appearing in court). Secondly, there will be opportunities to discover ‘unknown knowns’, that is where the new lawyer recognises that they are not in fact venturing into completely unchartered territory and that beneath the unfamiliar complexities are more familiar and flexible building blocks. Thirdly, new lawyers must always confront ‘unknown unknowns’; that is blind spots, surprises and unpredictable twists in the practice of law which will be entirely new to them.

New lawyers consistently reported the need to be comfortable with the professional values modelled in their practice and to find a satisfactory balance between their own values and those practised by their colleagues.

The notion of ‘values’ has an obviously wide meaning. It can refer to personal values and the need for the new lawyer to feel their personal values are aligned with those of the practice. Our particular focus is limited more to shared ‘professional’ values, in the sense of a shared’ concern’ with professional responsibility. The new lawyer will develop their own sense of this responsibility as they become more accustomed to practice, They will begin to develop their own ‘ethical compass’ to guide their professional behaviour. The ‘version’ of professional responsibility articulated by the practice will reflect its own particular circumstances in terms of its history and its practitioners’ interests, the type of legal work they perform, its size and location, and the particular characteristics of its clientele. It is in the intersection between these two that the new lawyer needs to find a comfortable match or at least an acceptable accommodation.

In the process of developing and refining their own ethical compass, new lawyers may need to accommodate an underlying desire to make a contribution to the community, to contribute to what Hyams calls ‘the interests of a substantive social value’. Their practice may give them scope to do this, or it may frustrate their attempts to contribute to social justice.

New lawyers may of course find other means to express this commitment. Some of our participants said that where their paid work did not provide it they looked to satisfy this instead through pro bono work.

This is our third tentative conclusion – that new lawyers need to be able to develop their own sense of professional responsibility and to find a satisfactory match between their own values and those modelled in their practice.

It is these three factors (balancing autonomy and supervision, managing uncertainty and finding a value accommodation) which were seen as important in developing a professional identity. Participation in legal clinic can provide a much earlier exposure to these experiences.

These programs are ‘live-client’ clinics and so our focus has been mainly on the scope for exposure to such experiences offered by these programs. But we see an important role for other forms of clinic, particularly for simulation clinics as important means to provide similar exposure.

Legal clinics offer students a range of opportunities dependent upon the work the clinic undertakes, the experience and ability of individual students, the balance it strikes between student learning and client care, the needs of the community the clinic serves, the resources available and the attitude of the legal community in which the clinic operates. Each program affords different opportunities to teach and model approaches conducive to learning professionalism.

As we have detailed, participants spoke of the benefits of autonomous practice supported and supervised by effective mentoring. However ‘in a clinical setting, the concept of autonomy [which makes the presumption of] law graduates being able to work independently and be self-directed in tackling and completing tasks without direction or supervision’ faces particular challenges.’ One is the need to ensure client care. Another is the need to overcome the learned dispassionate analysis, demeanour of non-involvement and neutrality which law students may bring with them as a consequence of their legal studies background.

These challenges can be overcome in various ways, most notably through clinicians ‘being less directional in the approach to problem solving, by encouraging initiative and showing that the tasks students are undertaking are valued.’

As Kerrigan highlights, clinics can offer unique opportunities for exposure to ‘disorienting dilemmas’ and these are very similar to the dramatic learning events we have discussed. Such dilemmas can start students on the path of self-evaluation and lead to increases in their competence and confidence.

The benefit of this early exposure is to allow considerations of the exercise of good judgement to be part of student’s development of a professional identity. Hyams refers to such judgement as an ‘elusive quality’ which is difficult to teach. He suggests that one starting point may be to encourage students to take a holistic approach to their clients’ problems and in the process consciously note and evaluate the factors that are influencing their own judgement.

Clinic has a significant role to play in giving students the skills and confidence to deal with uncertainty, Contact with ‘real’ clients with ‘real’ problems can enrich student learning by highlighting that there are uncertainties over which the student has little or no control.

The tools of reflection and collaboration can be successfully deployed to make students more comfortable with such aspects of uncertainty. Clinicians can facilitate collaborative reflection to encourage students to discuss the uncertainties they confront and reassure them that others are confronting similar concerns. Reflection can take the form of spontaneous, informal, ‘taking the teaching moment’ discussions, as well as being embedded in a more formal learning structure.

Collaboration with other students can make the most of these informal learning opportunities, as students give each other feedback and share their experiences.

Clinic gives students the opportunity to also recognise the limitations of the law in the context of human problems. Students conducting client interviews may find that problems are often emergent; with sometimes both the student and the client not know the full issues until they are worked through – with issues continuing to emerge during the interview. This realisation requires flexibility on the part of the student and increased preparedness to keep asking questions.

Noone and colleagues note that clinicians themselves can operate as role models for students. The clinician can model client interviews to give students the opportunity to see them deal directly with uncertainty. Students can learn that saying to a client ‘I don’t know but I can find it out’ is a legitimate way of dealing with content uncertainty. Students lacking confidence in their own capacity to deal with client emotions can see the approach a clinical teacher takes to deal with such matters.

A clinical program can also provide opportunities to explore various paradigms of ‘lawyering’, such as those identified by Parker (adversarial advocate, responsible lawyer, moral activism and ethics of care).’ Clinic gives students the chance to reflect about where they fit in these paradigms and consider what they think makes an ethical practitioner. Being aware that their behaviour as ‘role models’ is also being observed requires clinicians themselves to be more explicit about the role they are adopting and the type of lawyering they are displaying.

As we have detailed, participants spoke of the need to find for themselves a practice which did not pressure them to suppress their values but allowed them to cultivate and develop their own ethical compass.

Expecting that ethical learning will naturally occur simply through exposure to real or realistic cases is misguided. What is required instead is a much ‘broader and deeper engagement with what it means to be a lawyer and the moral attitudes, decisions and outcomes implicit in legal practice’. A well-structured clinical exposure provides a pre-practice means to do this.

Discussing professional values in a clinical setting can assist students to begin to identify their own professional sense, and so be better able to assess in the future whether a particular practice will suit their professional identity.

Pepper stresses the importance of giving scope to students’ intuition in developing their ethical judgement. Extrapolating to a clinical situation, students need to be encouraged to ask themselves ‘Is this the right thing to do? Is there some perspective from which it is the wrong thing to do? Will it harm people who do not deserve to be harmed? Is it dishonest, even though not unlawful?’. The opportunity to consider such questions and then have one’s judgement exposed to discursive examination can provide invaluable preparation for acquiring an ethical intuition.

For many, it may seem to be asking too much of a clinical program that it play all these roles, particularly given the relatively limited time most students will spend in such a program. But adding engagements in simulation clinics can extend the valuable exposure to the types of experiences our new lawyers have highlighted.

Participants reported that a practice which allowed them to find a suitable balance between autonomy and supervision, which helped them to recognise and deal with the uncertainties of practice and which allowed them to find a comfortable value accommodation positively aided their development as professionals. An appropriate clinical experience can assist law students to be ready for these experiences long before practice.