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JUDITH DICKSON[*]
The year 2003 marked the 25th anniversary of clinical legal education at La Trobe University's School of Law and Legal Studies. On 11 November 2003 more than I 00 people representing partner organisations, the judiciary, past and current students and staff, and members of the legal profession came together to celebrate the significant commitment to community that these 25 years represented. The highlight of the celebration was The Hypothetical, devised and facilitated by Liz Curran. A panel drawn from the guests was challenged to deal with the complicated life and criminal activities of Dale Troubled, a fictional but representative client of the University's 'real client' clinical programs based at West Heidelberg Community Legal Service and the Victoria Legal Aid Regional Office in Preston. The Hypothetical was at times humorous and at times profoundly serious -mirroring the nature of work in community-based clinical legal education programs.
In this article I focus on the past 25 years of clinical legal education at La Trobe. I draw out recurring themes and characteristics of the program and discuss more recent developments. I reach the conclusion that the key descriptor of clinic at La Trobe is 'integration'. By this I mean integration into the curriculum and integration with the University's neighbourhood -its community. In this way it reflects the goals of Australian clinical teaching generally. In my view, the La Trobe experience over 25 years demonstrates how an institutional commitment to community can be maintained so as to enrich and develop legal education with the longer term aim of influencing legal practice.
A simple definition is that clinical legal education in Australia is a legal practice-based method of legal education in which students assume the role of a lawyer and are required to take on the responsibility, under supervision, for providing legal services to real clients. 'Clinic' in Australia now includes not only the community legal centre based university programs but also field placements or externships in a variety of agencies. More recently, it includes programs in which students are involved in legal policy or campaign work These students may not have one specific client but rather be focused on an issue relevant to a group in the community The common characteristics are that the work is real and that the students (under supervision) assume personal professional responsibility for the work outcome.[1]
Another aspect of the educational goal is that of guiding students to a critical analysis of the law in action, using their personal practical experience in clinic to assess the effectiveness or otherwise of laws and legal processes and to address the possibility of law reform. This goal is bound up, in the history of Australian clinic, with community service.[2]
At La Trobe, clinic began with real clients, and legal education through the involvement of students in the provision of legal services to real clients remains the cornerstone of the La Trobe programs. As Jeff Giddings points out in an article in the forthcoming edition of the International Journal of Clinical Legal Education[3] this model 'has enabled clinics to retain a strong commitment to community service whilst also facilitating close work with small groups of students. A unique feature of the La Trobe program for many years was that it was legal studies students and not law students who were learning about the law by working with real clients.
In mid 1978 the Department of Legal Studies at La Trobe University appointed Phil Molan as a lecturer in legal aid. He was an experienced legal practitioner who had run his own private legal practice in East Preston, been extensively involved in the early days of Fitzroy Legal Service and had worked at the Aboriginal Legal Service before coming to La Trobe.
His job was to provide legal services at the previously voluntarily run legal centre in the West Heidelberg Community Centre, to teach a course on legal aid in the Department with john Willis (called Access to the Law) and to supervise the legal studies students who came on placement to the Centre as part of this course. The students' work was envisaged as including both action research projects and assistance to Phil with the casework. The project work was important and students conducted research on, among other topics, legal needs in the neighbourhood. The work at the Centre was assessed as part of the students' coursework In an interview with David Neal for On Tap but not OnTop: Legal Centres in Australia 197-1982 ( 1984), Phil Malan described the holistic nature of the legal service at the fledging West Heidelberg Legal Service and the enthusiastic participation of the students. As he said 'very soon the enrolment tripled and a lot had to be excluded'.
This program was the formal beginning of clinical legal education at La Trobe and the second such program in Australia. (The first was at Monash University in 1975). However; it built on the previous involvement of Legal Studies staff in providing free legal advice to students on campus and in particular on the involvement of Legal Studies students in working with the SRC lawyer in providing free legal services. In 1977 Adrian Evans, then solicitor with the SRC Legal Service devised a 'para legal training course' within the legal studies curriculum. Students, for credit, worked under his supervision in the legal service and attended seminars on interviewing and other relevant topics.[4]
The model adopted at La Trobe for its first venture into the new area of clinical legal education reflected the times and the nature of the university department into which the course was incorporated. LaTrobe was a new university and the Department of Legal Studies was pioneering socio-legal studies -teaching about law in its social, political and economic context. Its students were not law students aiming for professional qualification. In 1978 the Course Handbook listed subjects such Consumer Protection, Society and the Criminal Sanction, Law and the Citizen, Access to Law, the Law and the Poor, and Policy, Law and the Environment in the legal studies offerings.
The emergence of free legal services, specifically the Fitzroy Legal Service and the Springvale Legal Service, coinciding with the reports of the Commission of Inquiry into Poverty created the climate for action in the University's neighbourhood. The Report Law and Poverty in Australia ( 1976) identified West Heidelberg as one of the poorest areas in the country with a startling lack of access for its inhabitants to legal services. Following on from that Report in 1976, a number of local practitioners (including John Cain, later Premier of Victoria) and members of the local community established a volunteer free legal service in the West Heidelberg Community Centre. Several members of staff from La Trobe were involved in this service.
Memories and documentary records do not extend to identifying the precise process within the Department leading up to Phil Molan's appointment as a lecturer in mid 1978.There does appear; however; to have been general enthusiasm among staff for the appointment[5] and at least one local newspaper report referred to the then Vice Chancellor; John Scott, speaking publicly and positively of the appointment as evidence of the University's involvement in its community.
Phil Molan was appointed to a three-year term as lecturer in legal aid. During this period the popularity of the clinical program grew and as mentioned above, applicants outnumbered places. By 1980 a new subject Law and Social justice had been introduced to the second year legal studies curriculum and Phil Molan was now co-teaching it with John Willis as well as the subject in which the clinical program was first based –Access to the Law. In 1981 another new subject was introduced. Clinical Legal Education was an early example of the skills teaching now common to legal education. It focussed on client interviewing and aimed:
to provide a bridge between the theoretical knowledge of limited areas of 'consumer' law and the need
to communicate that knowledge to others with empathy and perception, so that the interchange between Interviewer and interviewee is rendered more effective.[6]
It appears that after only three years clinical legal education at La Trobe exemplified the dual goals of education and community service. The positioning of the clinical experience within both theoretical and practical subjects indicates that the educational goal, in particular; appears to have been clearly envisaged as inculcation of both a critical approach to the law in action and practical skills.
The years from 1981 to 1992 saw three successive incumbents of the lectureship. Phil Molan was followed by Kevin Bell (now QC). He was followed in turn by Mary Anne Noone (now Co-ordinator of Clinical Programs at La Trobe Law) who was succeeded by Jeff Giddings (now Professor of Law at Griffith University). During this I 1-year period legal studies students continued to be placed as part of their coursework at West Heidelberg Legal Service. Also during this period students continued to be placed at the SRC Legal Service.
Each clinical lecturer obviously brought to the program their own skills and interests and it did not remain static. It is important to remember; however; that the program was a clinical program with legal studies students, not law students. While the students were not assuming personal professional responsibility for the conduct of clients' legal matters, they were generally actively assisting their clinical teacher/practitioner in the provision of legal services. At times the students worked with them and the full-time practitioner (Gary Sullivan) on campaigns or on other projects aimed at improving the quality of legal service delivery. An example of the latter is the interviewing video produced by clinical students in the early 1990s under Jeff Giddings' supervision.
In 1992, the Department of Legal Studies introduced the teaching of a professional law degree and subsequently became the School of Law and Legal Studies. The opportunity then presented to extend the clinical program to include law students. Consistent with the ideal of incorporating the clinical experience into a mainstream academic subject, a new clinical program was designed to teach professional conduct -a prerequisite for admission to legal practice in Victoria.
A new partnership in the community was sought and found with the Legal Aid Commission of Victoria at its regional office in Preston -within the University's neighbourhood. The first program was taught in semester two 1994 and it has run continuously since that time.
This clinical program, developed by Mary Anne Noone and based in the subject Legal Practice and Conduct, included the goals of critical analysis of the law and legal system in practice and of community service. However it was (and is) a specialist clinic, focused on the lawyer client relationship and the nature of ethical practice. The practice of teaching ethics as a compulsory part of the law degree was still not widespread in Australia in 1992 although within the space of a few years a number of government-inspired inquiries into the legal system and the cost of accessing justice would identify an urgent need for ethics teaching within formal legal education.[7]
The 1990s also saw the development of the School's clinical programs beyond the real client model. While education through service to real clients remains the cornerstone of clinic at La Trobe, there was a recognition that it was important to extend clinical opportunities as widely as possibly.
In 1996 a court-based mentoring program was developed with the enthusiastic collaboration of the then Chief Magistrate, Mr Nick Papas. The Mentoring Program was again based within a substantive law subject-first within Criminal Procedure and Evidence and Administrative Law and later within the Family Law subject. (The program ran only once within Administrative Law). A variation on the externship model of clinical program, the Mentoring Program creates a mutual personal responsibility for learning in the mentor (magistrate or judge) and student. Students attend for 10 days with their mentor and are observers to the judicial decision-making process with opportunity for discussion on the legal process. They prepare a research paper or case note relevant to the experience which is assessed as part of their substantive law subject.
In 2003 a new externship clinical program was taught. Now called Public Interest Law Practice the course places students in a variety of outside agencies including government, public interest law practices and not for profit agencies. In some but not all of these placements students work with real clients. However, the subject aims to guide students to consider ways of tackling systemic issues within the legal system and develop skills beyond those associated with case work. Seminars are held on campus as well as small group supervision sessions with an academic supervisor. A comprehensive manual is provided to both supervisor and student and the clinical academic monitors progress. In this way the University maintains academic control over the learning process and outcomes while allowing for flexibility within the workplace.
In 2004, therefore, clinic remains strong at La Trobe, a fact that in some ways is extraordinary given the changing social and economic climates since 1978.
Like Monash University a few years earlier, the clinical program at La Trobe was based in an off campus free legal service.This has subsequently been the preferred venue for Australian real client clinical programs and there has been a strong university connection with the community legal centre movement.[8] In the case of La Trobe, where the existing legal service was a volunteer operation, university funding provided a paid lawyer to establish a legal centre for the geographic community of West Heidelberg.
The University of New South Wales soon followed Monash and LaTrobe Universities in introducing a clinical program in 1981.These three programs remained the only clinical programs in Australia until the expansion of legal education in the 1990s.They were all based in community legal centres and in the case of La Trobe after 1994 also in a statutory legal aid organisation. They were all real client clinical programs. The 2003/2004 Clinical Legal Education Guide published by Kingsford Legal Service lists 14 universities in Australia with a variety of programs including real client and externship models.
Despite this apparent popularity with law school administrations, and despite the undoubted popularity of clinic with students, there are ongoing challenges to the maintenance and development of clinical programs.
These challenges include practical ones such as money and staff resources but also include the challenge of ongoing relevance within the curriculum and the academic research imperatives.[9]
Of assistance to clinic directors in meeting these challenges has been the attention paid to legal education as critical in the formation of competent and responsible legal professionals. The Australian Law Reform Commission in its review of the federal civil justice system, addressed the teaching of legal ethics and commented favourably on the advantages of clinical experience in this regard.[10] A string of earlier inquiries examined the impact of lawyers' practices on access to justice, and the recent Discussion Paper of the Law Council of Australia, 2010: A Discussion Paper: Challenges for the Legal Profession (September 2001) devotes considerable space to the influence of the university legal education on the formation of professional practices and ideals.
In this context, the 'traditional' linking of legal education to the community via clinic can be seen as providing a law school with unlimited potential for education in the practical legal and ethical skills required by the 21st century lawyer. Clinical program directors have sought to demonstrate this potential by using their community connections in developing new courses teaching new skills. An example is the Community Development project introduced by Adrian Evans in 1990 into the Professional Practice clinical program at Monash University. This required students to work with members of an interest group within the local community to assist them with a campaign or submission. Another example is the Griffith Law School Advanced Family Law clinic which collaborates with the Caxton Legal Centre and Learning Network Queensland in offering advice to rural and regional clients using relevant technology:[11]
Another challenge to clinical programs - marginalisation in the law school -has been present since the earliest days of clinical legal education in Australia. Innovation such as described above is one way to address this issue. One aspect of the commitment to community service inherent in Australian clinic is the demands placed on clinical academics by legal service delivery and student supervision. Nevertheless, the community-based clinic -whether real client or externship -offers fertile ground for research which can satisfy academic promotion criteria for staff, teach valuable research skills to students and, importantly address practical legal issues relevant to the community in which the university clinic is based.
In this way clinic can fulfill a role of linking law and justice. [12]
Clinic at LaTrobe -meeting the challenges
It is, I think, reasonable to suggest that the clinical program at La Trobe was defined from its beginnings by its strong connection to the residents of a closely defined geographic area-its community. At the same time, the program from its outset was situated within a substantive academic course (co)taught by the lawyer student supervisor who was a member of academic staff-a lecturer.
These three characteristics of the first clinical program at La Trobe -strong community base, situation within the mainstream academic curriculum and academic status of clinical teacher remain key features of the overall program today. The need to meet the challenges referred to above has, however, resulted in clinical staff taking a critical look at the programs in the light of their goals. It was recognised that the existing clinical programs did not include any practical mechanisms for students to address systemic legal issues. As a result, the program offerings have been developed with the aim of giving students the experience and skills required to address the wider legal issues that are frequently · embedded in individual legal problems.
As mentioned earlier, a new subject called Semester in Practice was offered in 2003. Using the externship model, the course focuses on public interest law practice (and in 2004 is renamed Public Interest Law Practice) and students are placed in a variety of government, not for profit and public interest law agencies. The seminar program covers oral and written communication skills, the theory of public interest law, ethical issues in public interest practice and more. As well as assessment of their placement performance, students must submit a written research assignment on a topic related to their placement experience. They also make an oral presentation. The written assignment may be based on and be an expanded version of a research assignment performed for the host organisation. For example, in 2003 a student on placement extensively researched the implications of new power of attorney legislation and created a community education leaflet Her written assignment built on this research.
We hope that this subject provides a different perspective on the law in practice to that of the traditional real client clinic and of law school culture generally and that it provides experience in addressing wider issues of law reform.
A second development resulting from the critique has taken place within the flagship program based at West Heidelberg Community Legal Service. By 200 I this course showed signs of needing renovation if the educational and community service goals were to be met. The students said at times that they felt frustrated that they could not do more about the systemic issues that they identified as affecting the community more broadly. ln addition, there is increasingly a project work approach being undertaken by law firms using solicitors to work in teams rather than the more traditional model of solicitors working in a solitary fashion. The assessment style of exams or individual assignments did not lend themselves to the development of collaboration, team-work and interaction with a range of disciplines and bodies that such project work might involve. To offer such a project at the clinic seemed a good idea for all of these reasons.
The introduction by Liz Curran in 2002 of a team law reform project has injected a new energy into the course.
Students as a part of their formal assessment are required to undertake a team law reform project to encourage teamwork and to enhance opportunities for students to engage in the law-making process and public policy. Students determine their topics in consultation with the legal service and their clinical teacher. They do this after determining matters of concern arising from their casework while on placement at the legal service or arising from associated problems they identify as relevant to members of the West Heidelberg community and the community more broadly.
After marking, reports of a high standard are approved by a member of the community management committee of the legal service and then published. Since mid 2002, recommendations made by students have been either implemented or examined by a range of government departments or statutory authorities. For example recommendations flowing from the students' report in 2002 into self-represented litigants in the Magistrates Court have become a basis for the tenyear strategic plan of the court. A student project on the conduct of finance companies was used to provide information to financial counsellors and clients.[13]
Developments also continue within the program based at Victoria Legal Aid Preston, this course continues to challenge students to question the nature of ethical practice and their professional responsibility to the community in which they will apply their legal skills.
As we reflect on the 25 years of clinical legal education at La Trobe, we can, I think, be proud of our achievements while mindful of missed opportunities and ongoing challenges.
While still relatively small, due largely to limited resources, the program is strong with student interest high. The recent innovations building as they have on the strong partnerships developed over many years, have reinvigorated the longstanding relationship between the University and its community. Student work in law reform reinforces the mutual benefits to university and community envisaged by the early advocates of clinical legal education.
This university-community collaboration was emphasised in 1997 by the current Vice-Chancellor in opening the new premises of the West Heidelberg Community Legal Service (substantially funded by La Trobe). He said then: 'Now, with the opening of a larger office the University will give a greater number of students the opportunity to serve the community and open the way for further development of our clinical legal education programs'.
The celebration in November last year was indeed a celebration of 25 years of education through service and of the commitment of both the University and its neighbouring community to keeping the community in legal education.
I acknowledge the longstanding commitment of the staff and leadership of the Department of Legal Studies (now School of Law and Legal Studies) at La Trobe to clinical legal education. I also acknowledge the outstanding commitment to law and justice of my clinical colleagues Mary Anne Noone and Liz Curran and their assistance with this article.
[*] JUDITH DICKSON teaches ethics in the School of Law and Legal Studies at LaTrobe University and is a supervisor of the clinical program at VLA Preston. j.Dickson@latrobe.edu.au
©2004 Judith Dickson
[1] Simon Rice, A Guide to lmplementing Clinical Teaching Method in the Law School Curriculum (1996) 9-15; M A Noone and
J A Dickson, 'Teaching Towards a New Professionalism. Challenging Law Students to Become Ethical Lawyers' (2001) 4(2) Legal Ethics 127
[2] See Jeff Giddings,'Clinical Legal Education in Australia: A Historical Perspective' (2003) lJCLE 7 for a useful history of clinic in Australia
[3] Ibid
[4] Staff from the Department ran a free legal service with the SRC for La Trobe students from late 1974 to end 1975 when the SRC appointed Adrian Evans as solicitor. See M1nutes of SRC 9 August 1974 and 18 March 1976 See also Adnan Evans, 'Para Legal Training at La Trobe University' (1978) 3 Legal Service Bulletin 65
[5] Discussion with Roger Douglas and John Willis
[6] 1981 LaTrobe University Course Handbook, 212.
[7] See, eg, New South Wales Law Reform Commission, Scrutiny of the Legal Profession Complaints Against Lawyers, Report No 70,
(1993) para 5.21 ' the study of legal ethics and professional responsibility should be an integral part of any law school program
. ':Australian Law Reform Commission, Managing Justice A Review of the Federal Civil Justice System (2000), the University of New South Wales has had a compulsory course since 1974, M A Noone and J A Dicknon, 'Teaching Towards a New Professionalism, Challenging Law Students to Become Ethical Lawyers' (200 I) 4 Legal Ethics 127.
[8] M A Noone, 'Austral ran Community Legal Centres-The University Connection' in J Cooper and L G Trubek (eds) Educating for Justice Social Values and Legal Education (1997) 257-84.
[9] For a discussion of the financial aspects see, Jeff Gidd1ngs,'A Circle Game Issues in Australian Clinical Legal Education' ( 1999) 10
Legal Education Review 33, 52-55
[10] Australian Law Reform Commission, Review of the Adversarial System of Litigation Rethinking Legal Education and Training, Issues Paper No 21
[11] See the Kingsford Legal Service, Guide to Clinical Legal Education in Australian 2003-2004
[12] See J A Dickson, The Role of Clinic in Linking Law and Justice (Keynote Address at Australian Clinical Legal Education Conference, Griffith University 2003) (copy with author).
[13] Liz Curran, 'Innovations in an Australian Clinical Legal Education Program. Students Making a Difference in Generating Positive Change' (2003) IJCLE (forthcoming)
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