Legal clinic

Legal clinic

The phrase legal clinic (or law clinic) may refer to any private, nonprofit law practice serving the public interest[1]. In the academic context, these law school clinics provide hands-on experience to law school students and services to various (typically indigent) clients. Academic Clinics are usually directed by clinical professors.[2] Many legal clinics offer pro bono work in one or more particular areas, providing free legal services to clients. The remainder of this article will discuss clinical legal education.

Students typically provide assistance with research, drafting legal arguments, and meeting with clients. In many cases, one of the clinic's professors will show up for oral argument before the Court. However, many jurisdictions have "student practice" rules that allow law-clinic students to appear and argue in court.[3][4]

Contents

Types of activity

The clinics may include variety of activity:

  • Legal Aid Clinic is traditionally the most common type of Clinical education. Students under supervision of lectors provide pro bono legal aid to general public (usually to those, who can't otherwise afford it).
Lewis[5] further distinguishes:
Willem C. Vis pre-moot, a simulation of resolution of international business dispute by arbitration, at the Palacký law school's courtroom
  • Simulations - students can learn from a variety of simulations of what happens in legal practice. For example, moot courts are commonplace. They have traditionally formed part of law school activity and introduce students to the intricacies of advocacy, at least before appellate courts. More ambitiously, some use mock trials, sometimes with professional actors, to convey the difficulties of, for example, introducing evidence and establishing facts in what may be the rapidly changing environment of a first instance tribunal.[5] Other simulations can range from
    • negotiation exercises—whereby opposing groups of students learning the art of negotiation, rather than trial court litigation, by being given realistic case files and asked to resolve them in as economic and fair manner as possible[5]
    • client interviewing exercises[5]
    • transaction exercises-between groups of students such as buying and selling property or with individual students in e.g. drafting a will[5]
    • legal drafting and writing programmes[5]
Although of exceptional value in teaching law, these simulations can lack the complexity of real client work, and the role play may not create the same demands that exist upon the legal practitioner.[5]
  • Placements - students can be sent out to work with practising lawyers for short periods to encounter real problems, clients, and courts. They are then expected to bring back their experience to the law school and reflect upon it, using it to inform the remainder of their time spent in academic establishment. They are particularly attractive to some law schools, because that they can be arranged at little cost. On the other hand, the student's experience can vary greatly, and it is especially difficult for teachers to monitor what has happened in order to make use of it, and provide effective feedback. It is difficult to assess the student's progress.[5]

Many clinics combine all the before mentioned activities. For example, at the beginning of the clinical program the students are thoroughly taught some area of law that the general program may teach only briefly—for example immigration and asylum laws. Later they go through simulations to strengthen their practical knowledge. In the third part, they come to contact with real clients and solve legal issues (this can also be done via placements, for example in NGOs related to the area).

Areas of service

Clinical legal studies exist in diverse areas such as immigration law, environmental law, intellectual property, housing, criminal defence, criminal prosecution, American Indian law, human rights and international criminal law.[6] Clinics sometimes sue big companies and government entities. This has led to push-back in courts and legislatures, including attempts to put limits on who clinics can sue without losing state subsidies.[7]

Benefits

Ultimately, it has to be acknowledged, that praxis needs theory as a necessary tool, but also that theory becomes useless, if it is not close to, or if it is disconnected from, praxis.

—Anton Edler von Gapp, Erörtörung der Begriffe (Olomouc, 1828)[8]

Why should (a student) be forced to learn the law exclusively in the laborious and difficult manner? Must he be denied the privilege, which the students of medicine, chemistry and the other sciences enjoy, of learning at the outset of his study from treatises what other original investigators have discovered? Like the student of the different sciences, the law student must learn how to make original investigations for himself, and diagnose, so to speak, the principles of law from the cases in actual litigation. But no reason can be given why he must learn the whole science of the law by his own investigations in the undigested mass of raw material in the shape of adjudicated cases. No medical school can pretend to give a complete course of instruction at the present day, without introducing into its curriculum a comprehensive course of clinics. Nor does the professor of physics or chemistry teach these sciences exclusively by the use of the text-books and pictorial representations of the various experiments as was once the practice. But the instructors of these sciences have not discarded the treatise; they have only supplemented the use of the treatise with the resort to the laboratory and operating room.

—Steve Sheppard , The history of Legal Education in the United States (2007)[9]

  • Learning by experience - Instead of learning by means of traditional lectures, the students are much more pro-active participants in the learning process - they are "learning by doing". Their initiative determines the scope of the client's problem, they plan and work for its solution. Such students are much more likely to learn if they recognise that their success is determined by their own efforts rather than external factors (e.g. how good the lecturer is, or what questions have previously been asked on the exam paper). The key is applying the knowledge, not just learning it. It also calls for reflection and self-examination. Legal practitioners themselves rarely have the time or opportunity to do this. Students, by contrast, can examine the legal and social issues in some depth, and they can form the basis for looking at the lawyer's role and at legal ethics within a practical context. The result is that what is learned is far more likely to remain with the student that the knowledge crammed for an extremely artificial examination paper.[5]
  • Acquisition of skills - Clinical education embraces a skills-based approach. This means paying as much attention to the processes associated with legal practice - e. g. the structure of a letter, the interview with the client, face to face negotiation - as to the legal content of the rules forming the background to the work done. The skills include[5]:
    • Research skill
    • Communication skills
    • Interviewing
    • Counselling
    • Drafting
    • Negotiating
    • Problem solving
    • Interpersonal and organisational skills
  • Student motivation and development - Students who work in a legal clinic are enthusiastic about their experience. They are self-motivated and often highly committed to the work. They are more responsible for what they do and how they do it. In theory, the teacher’s role becomes more facilitative - helping students discover solutions for themselves. According to Lewis many students share disenchantment with the classical law school. To an extent involvement in clinical work can help reduce such feelings, and can invigorate future study. It can cause students to think again about what law school offers and what direction their future career could take.[5]
  • Professional ethics and responsibility - The study of ethics and the professional responsibility and conduct of lawyers has been markedly absent from law schools in contrast to medical schools. However, there has been a growth of interest in this area in recent years, and it is a subject that, arguably, is better dealt with in a clinical context where the often abstract notions can be given a practical context.the crucible of the clinic allows moral issues to be debated more openly than within the confines of the traditional curriculum.[5]
  • Involvement with the local community - Not only University's students but also its staff can be cut off from the local community. A law clinic can help reduce this isolation by making the law school more relevant to that community. Most obviously, the most disadvantaged members of society may gain some means of redress. But in addition the young student may be faced with the problems of those from a different generation and background. This experience can add to their understanding of the position of others in society, and can increase their maturity and sense of responsibility.[5]

Problems

  • The integration of the clinic within the law school - this covers[5]:
    • Clinic may become isolated from the law school - it is important to link the substantive law courses and work done in clinic (i.e. re-examining cases from clinics in other law-classes)
    • The clinic may be marginalised and treated as merely providing poverty law service to the community. Introduction of clinics require embracing the direction in educational philosophy that lies behind the teaching of skills.
  • Staffing problem - there are usually too few university teachers, who are qualified to practice, and very few of these had actually worked as lawyers for any period of time[10]
  • Resources- the students must be individually supervised, making the clinical education much more expensive compared to the traditional classes of large groups. Extra resources must therefore be allocated to the teaching and running of the clinic. On the other hand, clinics are usually very popular among students, therefore the issue arises, how to choose those who can attend them.[5]
  • Difficulties in supervision and assessment - Supervising students in the clinic is subject to pressures that pull in opposite directions. Arriving at the right balance can be difficult. On the one hand the student learns best if left with as much control over a case as possible so that there is room to make mistakes, appreciate how things may be done differently and change practice or behaviour accordingly. If ‘learning by doing’ is to be the leitmotif, it is no good looking over the student’s shoulder all the time to correct what is being done. On the other hand, the obvious danger is that too much freedom will be given to the student and that this could result in a poor or even negligent service being provided to a client. The public could be used as guinea pigs for the inexperienced. It is therefore essential for a system of supervision to include checks on the quality of work being done e.g. the approval of all letters sent out, certain interviews recorded, file entries checked and diaries examined. It is also crucial that the supervisor be given sufficient knowledge of what the student has done in order to provide effective feedback and ensure that the clinical work forms part of the skills learning experience. In the end, also assessment of the work has to be done in some way, otherwise the student may treat the clinical work as less important.[5]
  • The dangers of public service - Although the idea of providing free legal advice is attractive to those who wish to see the university become more closely involved with the wider community where it is based, problems can develop if the public service aim takes precedence over that of providing a sound and well rounded legal education.[5]
  • Relationship with the local legal profession - Some may fear that a legal clinic offering free legal work will upset the law school’s relation with the local legal profession. However, far from reducing the amount of work done by local practitioners, the clinic is likely to expand it. This is because it stimulates resort to the law, and the need for advice is increased out of proportion to the clinic’s ability to deal with it. A referral system to local firms for certain types of advice or assistance is essential, and the number of people thus sent to lawyers far outweighs the work taken on by the clinic and that otherwise would have been dealt with a law firm. Far from being a source of friction, the clinic helps to foster a closer relationship with the local legal profession.[5]

Background

USA

The first wave of clinical legal education in the United States began in the early part of the 20th century, shortly after the casebook method emerged in the late 1890s as a popular route to preparing for a career in law. The casebook method's emphases on appellate judicial decisions and the Socratic method as the means to teach the skill of legal analysis were a departure from the three prevailing methods of American legal education in the 19th century: the applied skills training method inherent in the apprenticeship system; the general education approach of the prevailing European legal educational model, which was adopted by some colleges and universities in the United States; and an analytical and systematized approach to the law as interconnected rational principles, taught primarily through lectures at proprietary law schools. While the casebook method was gaining wide acceptance, law students at several law schools in the late 1890s and early 1900s established volunteer, non-credit "legal dispensaries" or legal aid bureaus to provide hands-on opportunities to learn and practice lawyering skills and legal analysis, and also to serve a social justice mission by providing legal assistance to those unable to hire attorneys.[11]

With the changes of legal education in United States at the beginning of the 20th century came the need for practical education as opposed to book-learning. Previously, a young law school graduates received their "clinical experience" in pupillage, in which they were an apprentice to an established lawyer. The same system was used for medical students; but at the start of the 1910s hospital clinics were already well established institutions of medical education.

Especially after four-year law courses were established in American law schools (such as Northwestern University, the University of California, and Yale), the need for practical education became urgent. Legal aid clinics were meant to affiliate with already established legal aid societies. They would have between ten and fifty positions (depending on the size of the community), each having a stipend equal to that usually paid in local law offices. A Professor of Practice was in charge of the young lawyers, and the professor would have a staff of specialists available in particular branches of law. The clinics were meant to provide maximum educational value.

Northwestern Law School in Chicago has one of the oldest of the legal clinics, it being first established in 1910. In the USA clinics were set up partly because of the absence of a formal trainee or apprenticeship position within the legal profession. Students are admitted to practice immediately on passing the bar exams.[5]

By 1915 the plan to establish such law clinics was devised and approved by the Chicago Bar Association. Approval by the New York Bar Association soon followed. The committee's chairman, W. V. Rowe, set forth the plan in the Illinois Law Review:

Every large city and every university town where is a law school were supposed to have student legal aid offices; if the town was too small to supply either "medical or a legal hospital" with sufficient variety of cases, then this part of the law-school was supposed to be carried on in he nearest metropolis.[12]

In 1921, the Carnegie Foundation for the Advancement of Teaching funded a study on legal education, commonly called the "Reed Report" after its non-lawyer author, Alfred Z. Reed. The Reed Report identified three components necessary to prepare students for the practice of law: general education, theoretical knowledge of the law, and practical skills training. To satisfy the requirement of a general education component, the Reed Report called for at least two years of pre-law college training - a proposal the ABA promoted, starting in 1921. At that time, not a single state required a university-based law school degree as a precondition for admission to the bar, proprietary law schools were still prevalent, and apprenticeships still provided the basic legal training for many entering the legal profession. In the wake of Rowe's early efforts to integrate clinical education into the law school curriculum, and the Reed Report's call for practical skills training, John Bradway and Jerome Frank pioneered the cause of clinical legal education methodology in the 1920s through the 1940s, advocating an in-house clinic as an essential component of sound legal education. Yet, despite the efforts of Bradway and Frank, only a handful of law schools instituted in-house clinical courses through the first half of the 20th century.[11]

In spite of there being old examples, clinical education as recognised today in the USA really began in the 1960s. It spread rapidly. By 1973 of the 147 US Law Schools 125 reported having some form of clinical education. Many of these benefited from Ford Foundation monies on condition that they supplied free poverty law advice. These monies came to an end in 1979, and this led to a re-evaluation and re-orientation of the American programmes.[5]

United Kingdom

In Britain, the development of clinical education was much slower, as it lacked the kind of funding the Ford Foundation provided in the USA. By 1994, in spite of all the problems of locating such education within the traditional university framework, 13% of universities made use of live-client clinics. Two things combined to make it more attractive for UK law schools to develop clinical programmes:[5]

  • In 1993 the Law Society, the governing body of UK lawyers, gave up its direct control over the vocational stage of education and let universities set up their own skills courses – their fourth year of teaching law – if they wanted to. Cardiff Law School was the first to do so, and appointed several law practitioners to teach the skills courses. The involvement of former law practitioners at Cardiff and other universities led to an increasing interest in how legal education is delivered. There has been a steady rise in the literature dealing with legal education, including articles on, for example, methods for delivering the skills curriculum. An umbrella organisation, the Clinical Legal Education Organisation, has been set up to disseminate information about clinical courses.[5]
  • There is greater chance of universities to get funds from outside, to set up clinical programmes. There are at least two distinct sources:[5]
  • The State, through community legal services initiative
  • Large Law Firms. In 1997 a number of large firms, mostly based in the City of London, came together to set up the Solicitors Pro Bono Group. This charitable national organisation provides a co-ordinated response to legal need by working with the legal profession to set up new initiatives where free or reduced-cost legal advice can be provided.

Russia

A handful of legal clinics were established in Russia in the second half of 1990s with direct support by U.S. law schools as well as U.S. law associations such as the one at the Petrozavodsk State University Faculty of Law, which started operation on November 20th 1995 with help of the Vermont Law School, Vermont Association of Lawyers and with further back-up of local Union of Lawyers of the Republic of Karelia.[13] By 2009 there were over 160 legal clinics in Russia. There are various types of legal clinics in Russia, varying from general Legal Aid Offices such as the one of Petrozavodsk State University, legal clinics that aim merely to disseminate legal knowledge, and those that specialize in legal help to juveniles, prisoners, and asylum seekers. [14] [15]

Czech Republic

Log of Palacký University Faculty of Law, which was among pioneers of clinical legal education in Continental Europe.

The Faculty of Law at the Palacký University of Olomouc, where the law in books had been taught since 1679, had been closed in 1855 following the professors' and students' participation in the revolutionary movement. It reopened in 1991. The young environment helped to introduce the concepts of law in action into the Czech legal education, which were deemed inconvenient by other long established Czech conservative law schools.

Following the model of American law schools (but unlike in Russia, without their direct help), in 1996 the first legal clinic started at the Faculty, making it the first law school in Central Europe with a clinical program. Later in 2006 the Centre for Clinical Legal Education was established to provide methodical aids for innovation in current school subjects and to run the clinics.

As of 2011, there were more than fifteen clinics, and this Faculty remains the only one in the Czech Republic to provide clinical legal education.

Poland

On 1 October 1997 the first legal clinic was established at the Faculty of Law and Administration of the Jagiellonian University. A year later a legal clinic was established also at the University of Warsaw Department of Law, followed by legal clinics being established at number of other universities with law education.[16]

As of June 2010 there were already 25 university legal clinics in 15 Polish cities (except Warsaw and Cracow mentioned above, they operate in Łódź, Białystok, Wrocław, Toruń, Poznań, Szczecin, Gdańsk, Lublin, Rzeszów, Katowice, Opole, Olsztyn, Słubice) in which worked 1756 students supervized by 216 lectors, providing legal advice in almost 12,000 cases.[17]

Every year all students are attending seminars and workshops, which are preparing them for the future legal practice: showing the aspects of work with the clients, specificity of the courtroom, public speaking). The aid of students is focused on weakest social groups (for example: crime victims, victims of violence and discrimination, foreigners and refugees). Thanks to legal clinics the access to justice is possible for everyone, regardless of economic status. The clinical education in Poland gained fame especially after the decision of the European Court of Human Rights in Tysiąc v. Poland case, which was initially handled by the Legal clinic of the University of Warsaw Department of Law.

Belarus

The legal clinic at Belarus State University opened in 2000 in order to provide free of charge legal consultations for the poor. Since then the clinic provided assistance to more than 1,000 underprivileged individuals. The clinic was established with help of UNDP and was to be copied by other law schools around the country.[18]

Slovakia

The effort to implement clinics into legal education in Slovakia started in 2000 at the University of Trnava Faculty of Law. Refugee Law Clinic was introduced into the school's curriculum in 2001,[19] while other clinics followed (Civil Law Clinic, Labour Law Clinic, and so on). A street law clinic was founded at University of Pavol Jozef Šafárik Faculty of Law in 2002 and at Matej Bel University in 2004.[20]

Somaliland

In November 2002 the Faculty of Law of University of Hargeisa, Somaliland in collaboration with United Nations Development Programme (UNDP) established a legal clinic. UNDP provides technical and financial assistance to the clinic, which apart from providing pro bono help to vulnerable groups (women, children, minorities, etc.) and practical education to the Law Faculty's students carries out also legal education of Somaliland police, especially as regards protection of persons subjected to detention and imprisonment. Since 2006 it also provides legal help to Refugees located in Hargeisa and Buroa.

The staff consists of one Clinical Director, five Clinical Instructors, three Lawyers and four Paralegals. 82 students of the Faculty of Law took part in the programme in 2010, in which Clinic provided legal aid in almost 1000 cases, of which nearly 150 were solved by mediation provided by the Clinic. Another 1055 cases were ongoing at the end of 2010.[21]

Croatia

In October 2010 a legal clinic was opened at the Faculty of Law of University of Zagreb.[22] It was established with financial support of Faculty of Law, University of Zagreb, and it is supported by a number of NGOs.[23] As of 2011, the clinic operates during the semesters and it is open for 18 hours a week. The clinic is divided into 8 sections (including a section for public relations):[24]

Germany

Although Germany witnessed the first known use of term Juristische Klinik already in 1896,[25] it was not until autumn 2010 that the first legal clinic in Germany was established at University of Hanover Faculty of Law. It claims to follow the model of legal clinics in the USA and Russia.[26]

Unlike the legal clinics in the USA, in the Czech Republic or in Somaliland, the German legal clinic at the University of Hanover is not supposed to help clients from general public: it shall provide legal help merely to the University's students.[27]

India

At forefront of Legal clinics in India are "legal literacy programs" organized by the National Legal Services Authority and State Legal Services Authority[citation needed]

As of 2011, the legal clinics in India are at initial stage. The clinical legal work is mostly done by a few social activists, as well as by law schools.[28]

Serbia

Romania

Hungary

Moldova

Spain

Latvia

Israel

See also

References

  1. ^ eg., The Chicago Legal Clinic; Neighborhood Christian Legal Clinic; Washington Legal Clinic for the Homeless
  2. ^ Black's Law Dictionary, 6th Edition, "clinical legal studies," (St. Paul, Minn: West Publishing Co., 1990), 254
  3. ^ Louisiana Supreme Court Rule XX,http://www.lasc.org/rules/supreme/RuleXX.asp
  4. ^ Uniform Local Rules Of The United States District Courts For The Eastern, Middle, And Western Districts Of Louisiana, LR83.2.13, http://www.laed.uscourts.gov/LocalRules/Civil_83.htm
  5. ^ a b c d e f g h i j k l m n o p q r s t u v w Lewis, Richard (3 January 2006). "Clinical Legal Education Revisited". http://www.law.cf.ac.uk/research/pubs/repository/212.pdf. Retrieved 26 August 2010. 
  6. ^ University Utrecht School of Law Clinical Programme on Conflict, Human Rights and International Justice retrieved January 30, 2010.
  7. ^ Urbina, Ian (April 3, 2010). "School Law Clinics Face a Backlash". The New York Times. http://www.nytimes.com/2010/04/04/us/04lawschool.html?hp. Retrieved 4 April 2010. 
  8. ^ (German) Gapp, Anton Edler von (1828). "Erörtörung der Begriffe: redlicher — unredlicher Besitzer; — rechtmäßiger — unrechtmäßiger; — echter — unechter Besitz; nach den Bestimmungen des öfter, allg. bürg. G. B.". Oesterreichische Zeitschrift für Rechts- und Staatswissenschaft (1, 2). http://books.google.com/books?id=D3mllMoNJ0IC&dq=Franzens%20universit%C3%A4t%20olm%C3%BCtz&hl=de&pg=RA1-PA297#v=onepage&q=Franzens%20universit%C3%A4t%20olm%C3%BCtz&f=false. 
    "Uebrigens bekennt sich der Verfasser zu dem Grundsatze, daß die Praxis der Theorie als nothwendigen Mittels bedürfe; daß aber auch die Theorie nichts tauge, die nicht nahe oder entfernt zum Zwecke der Praxis führet"
  9. ^ See The Worthlessness of American Legal Education by Marco Randazza
  10. ^ a b New York State Judicial Institute (5 May 2005). "Introduction to Clinical Legal Education". http://www.courts.state.ny.us/ip/partnersinjustice/Clinical-Legal-Education.pdf. Retrieved 1 September 2010. 
  11. ^ The history of legal education in the United States: commentaries and primary sources, Steve Sheppard, Lawbook Exchange Ltd., 2007, pages 876 - 878
  12. ^ "Petrozavodsk State University Legal Clinic". petrsu.ru/. http://www.petrsu.ru/Faculties/Law/clinic_e.html. Retrieved 2010-11-21. 
  13. ^ "Development of the Legal Profession". usaid.gov/. http://russia.usaid.gov/programs/democratic_dev/rule_of_law_and_human_rights/ABA_01/. Retrieved 2010-11-21. 
  14. ^ (Russian)"Что такое Правовая клиника?". usaid.gov/. http://www.jurfak.spb.ru/en/Structure/JurClinic/AboutClinic/AboutClinic.aspx. Retrieved 2010-11-21. 
  15. ^ (Polish)"Młodzi prawnicy. O klinikach prawa". Marta Lampart. http://www.racjonalista.pl/kk.php/s,3498. Retrieved 2010-08-26. 
  16. ^ (Polish)"Studenckie Poradnie Prawne:Podsumowanie działalności za rok akademicki 2005/2006". Fundacja Uniwersyteckich Poradni Prawnych. http://www.fupp.org.pl/. Retrieved 2011-02-10. 
  17. ^ (English)"Belarus: Establishing a Legal Clinic at the Belarusian State University". United Nations Development Programme. http://europeandcis.undp.org/environment/romania/show/161DDE26-F203-1EE9-B25A377D10AC43C8. Retrieved 2011-03-20. 
  18. ^ (Slovak)"Inštitucionálne projekty". Trnavská univerzita v Trnave, Právnická fakulta. http://iuridica.truni.sk/index.php/sk/katedry/struktura/katedra-medzinarodneho-prava/projekty-mp/institucionalne-projekty. Retrieved 2011-03-20. 
  19. ^ (Slovak)"Právne kliniky pre (vybrané) komunity na slovenských právnických fakultách". Občan, demokracia a zodpovednosť. http://www.oad.sk/lawdaily/clinics/faculties. Retrieved 2011-03-20. 
  20. ^ (English)"Legal Clinic Annual Report 2010". http://www.somalilandlaw.com/2010_Hargeisa_Legal_Clinic_Report.pdf. Retrieved 2011-01-20. 
  21. ^ http://klinika.pravo.hr/povijest-vizija-misija-i-ciljevi
  22. ^ http://klinika.pravo.hr/suradnja
  23. ^ http://klinika.pravo.hr/organizacijska-struktura
  24. ^ (German)"Juristische Kliniken". Dr. Georg Frommhold, Greifswald, Deutsche Juristen-Zeitung. http://dlib-zs.mpier.mpg.de/pdf/2173669/05/1900/21736690519000470.pdf. 
  25. ^ (German)"Legal Clinic - Juristische Beratungspraxis". uni-hannover.de. http://www.jura.uni-hannover.de/legalclinic.html. Retrieved 2010-11-18. 
  26. ^ (German)"Leibniz Universität Hannover eröffnet Legal Clinic". career-women.org. http://www.career-women.org/leibniz-universitaet-legal-clinic-rechtsberater-jura-studierenden-_id1059.html. Retrieved 2010-11-18. 
  27. ^ http://www.nalsa.gov.in/

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