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Evans, A --- "Global agendas, cultural capital and self-assessment of clinical legal education programs" [2013] LegEdDig 17; (2013) 21(2) Legal Education Digest 5


Global agendas, cultural capital and self-assessment of clinical legal education programs

A Evans

Monash University Law Review, Vol. 38, No. 2, 2012, pp 55-81

Modern clinical legal education programs are rich in their diversity and ambition, so much so that it is often difficult to decide if a self-described clinical program meets the description of ‘clinic’ or is in reality something less than that, seeking to achieve academic acceptance without investing in faculty understanding of clinical pedagogy or the money needed to provide reasonable personnel and physical infrastructure. In most countries, there has been little effort to establish standards for clinical legal education through accreditation bodies.

There is a wide geo-political context to the movement towards national standards in legal education that may soon assert pressure for international standards. The frustrated UN effort to improve global living standards in the context of over-population, increasing carbon emissions, declining natural resources and increasing species’ extinction rates has certainly focused attention on primary and manufacturing industries’ practices, but very few tertiary or service sectors have been called upon so far to make a tangible difference to these mammoth problems.

Educational recognition of the scale of the challenges, where it has occurred at all, has been primitive rather than sophisticated, in the sense that the debate about all these issues is output-centred – for example, on reducing emissions – rather than input-aware. Little serious attention has yet been given to the effect education has on the priorities of the professionals who engineer and manage the policies that produce our global danger zones, and the regulators of these sectors are even less concerned with how their lawyers, accountants, financial planners and bankers choose to behave in these contexts.

The notion that law schools ought to nurture justice-artificers as the global legal education priority is seen as too strong: it rings out the fear of socialism among first-world legal professions, but the global need for this type of lawyer will become socially more important nevertheless.

There is a need for self-assessment by clinical programs and law schools, if clinical legal education is to continue to develop and play a role in strengthening legal educational and hence lawyers’ contributions to major planetary problems. But this effort must be clear about what may or may not be properly called a clinic or clinical experience.

As the clinical ‘label’ steadily builds educational esteem for its capacity to compel student engagement and deliver meaningful experiential and workplace learning, so also does it seem to attract some law schools to that label with insufficient regard to the required resources. In Australia, for example, some law schools seem happy to initiate programs which provide no more than some practical legal training at best or at worst, mere observation and assistance to lawyers at community law centres and other placement sites. In other words, the emphasis is on some exposure to the practice of law but with insufficient emphasis on student learning.

Understanding exactly what a clinical program is and what it is not is important to deciding what is properly assessable and what is not. If clinics can be described generally as supervised experiential encounters between clients and their legal advisors, in the interests of just case outcomes, the processes of law reform and political renewal, then it is likely that the pro bono placement program for students is not such a program. However, the externship is in an intermediate category: externships are sometimes no more than pro bono placements, but in many cases have all or most of the characteristics of a live-client, in-house program. If they fall into the latter category, then they are arguably within the clinical camp and deserve consideration as part of any self-assessment process.

Increasingly, the social esteem of lawyers is waning in proportion to the increase in their earning capacity. Accordingly, it may be the task of law schools and of their most innovative and socially responsible arm – their clinics – to further develop the tools and reach of clinical method to the point where new lawyers can rediscover the importance of integrity, service and the social obligations of legal practice.

Observers of the professions had for many years noted internal struggles between wealth creation and professional service as motivating forces, but largely acquiesced in the conflict.

In Australia, several commentators were clear that a professional culture – that is, benign attitudes, values, beliefs, skills, knowledge and behaviours – dictated ‘a belief in the essential worth of the service that the professional group extends to the community...’ Such a pro-community priority has never died out, even when Magali Larson insisted in 1977 that ‘professionalisation’ was no more than provider control of services in the financial interests of the provider only, preferably through a monopoly.

Other commentators have taken professionalism analyses even further by observing that in all successful professions the embrace of change, rather than an emphasis upon increasing incomes, is a key factor in that success.

Pierre Bourdieu suggests we look at professions and ‘professional’ and expert work as a ‘structured space of social forces and struggles’, a social field in which there is a competition for what counts as capital, or in other words where labour must be converted into ‘symbolic capital’ if it hopes to become expert and allow its professionalised form to survive.

Accordingly, sociological thought about the professions identifies the notion of economic power available from further abstract conceptualisation of professional work as critical to professional survival and occasionally dominance. So far as the legal profession is concerned, the new or emerging abstract factor in lawyers’ continued occupational success could well be a wider concept of ethics than has been accepted to date.

If the sociological emphasis on the adaptation and refinement of abstract knowledge as a descriptor of successful professionalism is correct – and it is quite plausible – then the ability of lawyers to respond to criticism of their behaviour by acceptance of serious social and ethical accountability, ought not to be impossible. And in that response, the importance of clinical method may be pivotal because it motivates new lawyers to take their social responsibilities seriously. In this context, the elevation of clinical method inside law curricula, with its attendant emphases on developing normative awareness and accountability in future professionals, is a process of developing such shortly-to-be-required social capital.

In highly simplified terms, a student with a normative position will regard the social and political contexts of a law as influential in determining its legitimacy, as opposed to the student with a positivist perspective, who tends to rely far more on the authority of the law giver as providing most if not all of its necessary justification.

Most clinicians know that in well-regarded clinical courses, participating students acquire unparalleled additional technical capacities and ethically sensitive, pro-community attitudes, as well as an ability to think critically about the law, justice and the legal system, particularly from the perspective of disadvantaged clients. But most ‘conventional’ law academics do not know this or comprehend the detail behind these asserted outcomes. It is likely to be very much up to the clinicians and clinical directors in particular, to take the initiative and haul their clinical course profile up by its own bootstraps, if they and their courses are to be socially transformative and prepared for international accreditation.

Clinical directors know that when funding is the issue, there is frequently a complaint among non-clinical peers as to the ‘worth’ of the clinics, leading to euphemistic ‘reviews’ and political struggles in which the fallout is measured in declining staff morale and the departure of valued teachers, whoever ‘wins’. The opportunity therefore for clinical programs to pre-emptively self-assess themselves according to reasonable criteria not only helps to keep staff confident that their program is moving forward, but also serves to reduce their vulnerability to these inevitable and periodic attempts in ‘corner’ protection.

Clinical self-assessment is however not straight forward. A clinical director cannot simply impose particular standards for criteria on their clinical programs and expect the process to be useful or credible among employed clinicians and students. ‘Bottom-up’ standards discussion and development is essential in clinics because the process of developing and agreeing on suitable measures of effectiveness is important to retention of staff and their engagement with the whole ethos of self-assessment.

Nevertheless, there are some fairly obvious potential criteria that a clinical director might suggest to their staff as suitable for a self-assessment exercise. These criteria cover the obvious agendas such as the requirements for good supervision, but they should begin with an examination of the bases for doing what clinics do, that is, with curriculum theory.

The following suggestions for particular standards and indicators are designed for self-assessment purposes only.

Curriculum theory: Within wider education discourse, there is a vast literature about the various bases that may be used to justify clinical method as a transformative technique within legal education. It is therefore very important that a clinical program’s specific curriculum theory – or values and objectives behind what is guided and learned in each program – is understood and agreed by the teachers involved.

Different programs will seek to give priority to different theories and not all clinicians agree as to which should dominate and which are relatively insignificant in their structures.

Effectiveness of the Clinical Program: There are many variations on clinical experience and most clinicians would consider their own offerings to be effective in achieving their objectives. But assessing effectiveness must include asking whether the projected program objectives are appropriate or whether a program achieves what it sets out to do.

There is for example an argument that effective experience is best achieved in a live-client clinic and that the concept cannot be met with simulated experiences using role plays alone. There is discussion as to minimum effective time periods for student clinical experience in weeks or months and much of this discussion appears to reflect the educational expectations of the clinicians concerned. There is also a perennial and often tedious debate as to the merits of a law student-education centred as compared to a client-service centred program, with proponents on both sides prepared to go to some length in criticising the other perspective in terms of effectiveness, morality and occasionally social responsibility.

Aligned to the education versus service discussion there is sometimes a dichotomy between an inherent priority in some clinicians on their students’ technical skills development and among others, on promotion of a normative/critical emphasis, even though many clinicians recognise that proficiency in technical skills necessarily involves some normative awareness and that the critical clinician requires a degree of technical capacity if their criticisms are to retain their policy ‘edge’. This might explain why the best (effective) programs are commonly seen to do both.

A jurisprudential bias, shared by the author, is that any law course including a clinical course which ignores the policy dimensions of law and the justice effects of its actual practice in favour of purely positivist exposition, runs a considerable risk of deficient structure and teaching and that accordingly, there is a defensible need to positively discriminate in favour of normative course structures in the clinical environment.

Supervision standards: Within clinical supervision, determining whether formal standards are necessary has always been a vexed issue. In particular, there has been a pronounced debate within Australian clinics about whether initial legal advice should or must be given to clients only in the presence of a legally qualified supervisor.

Importantly, there does seem to be a view (as yet unsupported empirically), that the imposition of too tight a rein on students’ direct and trusted contact with clients will tend to stifle development of their confidence and growth in their sense of responsibility. This ‘autonomy perspective’ acknowledges, sometimes too formulaically, that very inexperienced students are a calculated risk to themselves and to others; a risk which has to be managed by initially tighter supervisory reins, but even proponents of students’ ‘first contact’ autonomy would agree that there are precautions that should govern such contact, for example, precise pre-interview briefings as to acceptable exchanges between students and their clients and a requirement for post-interview, written records of the interview, signed off by the student and checked by the supervisor at day’s end.

Assessment of Student Performance: Within clinical scholarship there is consistent disagreement as to whether to assess students as merely ‘competent/satisfactory’ in their performance (that is, a pass/fail approach), or to grade their achievement at successively higher levels in the manner of most other courses and subjects. What is important is effective assessment, particularly formative assessment. The use of reflective journals as tools of supervision and self-learning is far less contentious. Their measure of the quality of reflection, the integration of content and experience and student growth in personal insight and self-awareness is now so widespread as to demand their inclusion in any self-assessment process.

Connection to legal education as a whole: It is common for a law school to operate a clinical program without integrating clinical techniques and learning outcomes into its other subjects and courses, despite efforts from time to time to achieve same. Those that do achieve some measure of integration have approached the issue on a ‘whole of law school’ basis rather than in an ‘over the top’ effort to dominate the law school with clinical method.

Clinician Selection, Training, Monitoring and Retention: Clinical supervisors require many qualities: they must have sophisticated interpersonal sensitivity and emotional intelligence; have the ability to empathise with students but not to undermine their sense of budding autonomy; project sufficient confidence to allow students to make and recover from reasonable case-handling mistakes without taking over such cases from them; be willing to juggle cases between students with differing abilities, having regard to professional indemnity risks and potential claim reporting requirements; have self-awareness of their legal ethical methods and of their preferences for adversarial or alternative dispute resolution approaches; have a knowledge of experiential assessment and legal practice management experience; and finally, it is suggested, maintain their own research programs with a commitment to utilising law as a tool for social reform.

In deciding which staff to recruit, clinics need to consider the desirable mix of educational insight and legal practice know-how that is likely to support such broad ranging capacities.

A key issue in clinic stability is workload. Clinicians must operate intensively and even intimately with their students in order to develop their potential, all the time remaining alert to the boundaries that must be maintained. If they have too many students to supervise at any one time, they will tire in a year or two or their supervision will suffer. Accordingly, an appropriate staff-student ratio is required for the discussion and reflection process needed to ensure that students are making systemic connections between, for example, their drug-use client in their legal centre office and the social decision to deal with substance addiction as a criminal justice rather than socio-medical phenomenon.

Documentary audit trails: Since many criteria preferred and required for self-assessment processes involve an element of qualitative judgement rather than precise metrics, it is useful in any such process to also use criteria which contain in themselves a metric element.

The task very often is not to identify what the criteria of clinical method should be, but to decide: what are effective indicators for these criteria?

Suggested criteria: (1) A clinical program is in existence; (2) The clinical program is periodically reviewed by an external team; (3) There is an explicit and agreed base or bases in curriculum theory to the program and that base or bases is/are appropriate to current operations and projected objectives; (4) Is the clinical program law student-education centred, client-service centred or a conscious balance of the two?; (5) Does the clinical program focus on skills development or promote a normative/critical emphasis or both?; (6) The asserted clinical program permits its students to meet clients alone and, at that time, convey their supervisors’ initial legal advice to them; (7) The clinical program provides appropriate supervisory precautions to moderate inexperienced students’ autonomy; (8) A majority of completing students evaluate the program as developing some of a number of nominated skills (for example, the ability to draft an opinion or explain coherently to a client the projected stages of a case); (9) A majority of completing students understand the distinction between normative (law must be understood in the context of its effects on justice) and positivist theories of law (law is justified only by its authority); (10) The asserted clinical program is primarily for the purpose of student observation and provision of student assistance to admitted lawyers; (11) Externship experiences, if any, are under the effective control of the law school and entrust students with supervised case-handling involving a high degree of autonomy and normalised face-to-face client contact; (12) All first year law students rotate at least briefly through a clinic, so defined; (13) All clinical students maintain a periodic reflective journal, which contributes to their assessment; (14) At least 70% of all clinical students evaluate their clinical experience positively; (15) Clinical cases are used to illustrate doctrinal courses and the source of those cases is acknowledged in those courses; (16) Clinical teachers’ research output is supported by access to study leave and non-teaching periods to the same degree as conventional teachers; (17) Clinical teachers have the same terms and conditions of employment as their conventional peers; (18) As a group, clinical teachers have backgrounds which include some periods of socio-legal or moral activism and publications evidencing that activism.

(19) New clinical supervisors have some track-record of personal pro bono activity; (20) New clinical supervisors have normative views about the purpose of law and legal practice; (21) New clinical supervisors have an awareness of the pedagogical debates concerning competing legal ethical perspectives; (22) New clinical supervisors have qualifications to practise law (and therefore supervise in clinical legal practice); (23) New clinical supervisors understand and agree with the importance of emotional intelligence to legal practice; (24) Clinicians require a minimum annual research output; (25) Clinicians are appointed on probation, are required to undergo assessable teaching education while on probation and are academically supervised on at least a six-monthly basis; (26) The clinical staff-student ratio is no higher than 1:10; (27) The program requires new clinicians to undergo ‘360 degree’ psychological assessments; (28) The staff consensus is that such assessments are helpful and positive; (29) The law school has a policy of rotating conventional teachers into and out of the clinic as resources allow; (30) Clinical directors are regularly relieved and rotated; (31) All supervision standards named above exist in tabular form and are transparently linked to metric assessment of each student against each standard; (32) The clinical program is periodically reviewed by an external team; (33) New academic staff members are oriented for their awareness of the significance of these criteria; (34) For those law students with clinical experience, there is an average improvement in their assessment outcomes in all other subsequent law subjects.

In Australia at least, the former ALTC and the Council of Australian Law Deans (‘CALD’) see that more and stronger, quality-focused clinical programs can continue the bridge-building between theory and practice. But CALD also wishes to strengthen law schools’ ‘practice-related’ curricula for two other reasons: professional and student pressure to increase graduate employability and a concern to renew and improve the ethical standards and professionalism of law graduates.

There is little time to waste in the legal education sector (and in its vastly smaller sub-sector of clinical method), in contributing to a revitalised legal profession; one better able to contribute to solutions than to problems.

Fortunately however, international accreditation of law schools is coming and will inevitably include some attention to determining an acceptable approach to clinical teaching. This exposition of some of the possible accreditation criteria of clinical method will hopefully highlight what program directors can do to self-assess whether their programs will measure up to internationally credible processes and standards.


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