Keynote Address - Australian Clinical Legal Education Conference 11 July 2003, Caloundra Queensland

Author:	Judith Dickson BA, LLB, LLM Clinical Supervisor, La Trobe University School of Law and Legal Studies
Subjects:	Justice Law - study and teaching (Clinical education) (Other articles) Legal services (Other articles)
Issue:	Volume 11, Number 1 (March 2004)
Category:	Comment

Contents

• Introduction
• 'Law' 'Justice' and 'Clinic'
  • Law
  • Justice
  • Current usage of the terms
  • Clinic aka Clinical legal education
• Goals and assumptions
  • Goals
  • Assumptions
  • Who do we think we are, or our self image as clinical teachers
• The Role of clinic within legal education
  • Practical Opportunities - How to carve out the Role?
  • How can we do more than we do?
  • Practical ways for clinic to link law and justice
• Proposals
• Conclusion
• Notes

Law teachers are teachers like professors in other disciplines. But unlike their colleagues in some other disciplines . . . the products of their intellectual processes need not and should not be measured solely by so-called scholarly research and writing. Law Teachers must go beyond this and assume the responsibility of being judged for improving the quality of the legal process. They must be judged not by articles and books alone; but also by what they are doing to promote dignity, humanity, and justice for individuals through the legal process; and by what they are doing to this end in the process of providing legal education to future lawyers.[1]

Introduction

1. William Pincus threw out this challenge 35 years ago as he was encouraging law schools in the United States of America to develop clinical programs with the help of Ford Foundation funding and CLEPR (The Council for Legal Education and Professional Responsibility). He was very clear that lawyers, including law teachers had a professional obligation to use their legal skills and experience for the benefit of all members of their society - not just those who could afford to pay for them. In fact, his dismay at the absence of awareness of such an obligation in the numerous research grant applications he reviewed at the Ford Foundation was the catalyst for his work in the clinical field.

2. I like William Pincus. I like the determination and passion for his educational adventure that comes through his writings and I like his apparent ability to persuade and lobby those in power by focussing on clinical legal education as a necessary and obvious part of legal education.

3. Yesterday, Simon spoke to us about a 'reconceptualising of legal education in the clinical model'. Today I want to take up some of his threads as well as those of William Pincus in the quote I have shown.

4. One of those threads is the idea of reflection on our practice. If, as William Pincus suggests, we, as law teachers are to be judged on how well we are 'improving the quality of the legal process' through our educational programs, then we certainly need to look hard and closely at what we are doing and ask some perhaps uncomfortable questions.

5. I begin with some questions about the meaning of 'law' 'justice' and 'clinic' and then some more questions about our ideas and practices within clinical legal education. What are our goals and what are the assumptions leading to formulation of these goals? This leads me to wonder how we see ourselves within the law school environment. My tentative answers to these questions leads me to some ideas about the role that clinical legal education might play in linking or integrating law and justice and some practical suggestions for how that role might be played out.

6. Underlying my ideas are two concepts that have interested me and my teaching and research partner Mary Anne Noone for quite some time. These are first, the concept of the law teacher and specifically the clinical law teacher as role model; and secondly the nature of ethical practice.

   'Law' 'Justice' and 'Clinic'

7. What do we mean by these words? The first two in particular are bandied about by lawyers, legal educators, commentators and the general public in different circumstances and for different purposes. What are some of the ways in which they are used? I want to spend some time on these usages because I think they influence the way in which clinical legal educators approach their work.

   Law

8. Being a practical person, my starting point is a dictionary. The Oxford English Dictionary 1989 2nd edition defines law first as "A rule of conduct imposed by authority" and under that heading as:
   "The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects. (In this sense usually the law)."

9. The Macquarie Dictionary Federation edition 2001 defines 'law' as:
   "the principles and regulations emanating from a government and applicable to a people, whether in the form of legislation or of custom and policies recognised and enforced by judicial decision"

10. The Collins Thesaurus (1995) lists as primary synonyms "charter, code, constitution, jurisprudence" and as secondary synonyms includes " act, canon, code, command, ...edict, rule, statute".

11. This all seems as we expect and know in our daily life. There is the idea of imposition and the idea that the rules and regulations constituting the law reflect the norms of the society. As citizens, how we respond to the laws that bind us might depend on how energetic we are individually and what our personal political views are. In any event, I agree with Margaret Davies in her book Asking the Law Question when she says that : . . .law defines, categorises, and sets conditions for communication. . . It may at times be necessary or desirable to question or transgress the definitions and order(s) which law establishes, but this does not mean that we can do without it in some form or another.[2]

12. I can't see how, as citizens, lawyers and legal educators, we can disagree with this.

    Justice

13. Perhaps to the surprise of no-one here, the dictionaries give a clear moral foundation to 'justice'. Both the Macquarie Dictionary and the Random House Dictionary of the English Language (2nd ed 1987) define the word first as " the quality of being just; righteousness, equitableness, or moral rightness". The Oxford Dictionary similarly defines it first as "the quality of being just" and then " the quality of being (morally) just or righteous; the principle of just dealing. . . " The Macquarie Dictionary goes on to define justice as "the moral principle determining just conduct" and "conformity to this principle as manifested in conduct; just conduct, dealing, or treatment".

14. When we look at the definitions of "just" we see them as "actuated by truth, justice, and lack of bias/ in accordance with true principles" (Macquarie); "upright and impartial in one's dealings; rendering every one his due; equitable" (Oxford). We see synonyms for 'justice' as "equity, fairness, honesty, impartiality, integrity, . . ." (Collins).

15. Justice also means vindication of a right, exercise of authority or power to enforce a right and then it has the vengeful sense of infliction of punishment on an offender (Oxford). There is another strand, however, to the definition with which we are also familiar in our daily work. This defines justice as the 'maintenance and administration of law as by judicial or other proceedings" (Macquarie).

    Current usage of the terms

16. It is this latter meaning which seems to appear most frequently in legal and political language. Justice is frequently used as part of the term 'justice system'. For example, 'criminal justice system'; 'civil justice system'; 'juvenile justice system.' It really seems to be interchangeable with the term 'legal system' which we understand more easily to be the law(s) and the system of courts and tribunals set up to administer and enforce it. I always feel a little uneasy at this usage. Somehow it seems at odds with the primary meanings of justice.

17. We are also used to the term 'access to justice'. This was used in the 1990s by governments in their inquiries into the operation of the law and the legal system in Australia. We had the Access to Justice Advisory Committee, chaired by Ronald Sackville, with its Report Access to Justice : An Action Plan. We then had the Justice Statement of the then federal government implementing the Sackville Committee report. And there have been other inquiries by both government and the legal profession using the terms. Law Societies have their 'Access to Justice' committees. In these reports 'justice' or 'access to justice' seems to refer to the treatment of citizens within the legal system.

18. The Sackville Committee thought that there were three essential elements to the concept of access to justice. These were:

    * Equality of access to legal services
    * National equity
    * Equality before the law[3]

19. This approach to justice seems in keeping with the ideas of equity, fairness, impartiality and integrity contained in the primary definitions. This is not surprising given Ronald Sackville's history. I have wondered whether he felt a sense of déjà vu in 1994. After all, 19 years earlier, he had written the report Law and Poverty in Australia[4] as part of the Commission of Inquiry in Poverty. In it he had argued that absence of substantive equality before the law was the critical failure of the legal system at that time.

20. Recently, the Victorian Attorney-General made a ministerial statement entitled 'A fair, accessible and understandable justice system'. In it he described 'justice' as :
    [being] about openness, transparency and accountability. It is about protecting the rights of citizens and ensuring that people are treated fairly. It is about ensuring equality of access before the law, regardless of financial resources, gender, ethnicity, age or sexual orientation. It is about ensuring that our legal profession, our judiciary and our juries are representative of the rich, diverse community in which we live. It is about creating courts that are modern and accessible, not only in terms or our court buildings but in the way that they dispense justice. . .

21. The echoes of the Law and Poverty Report and of the 1994 Access to Justice: An Action Plan are clear in this description. To achieve justice, that is, to achieve equity, fairness, honesty, impartiality and integrity in our legal system requires attention to structures and systems and to the substantive law. In 1975 the Law and Poverty Report pointed out that many areas of the law including tenancy law and criminal law positively discriminated against poor people. In 1994 the Access to Justice: An Action Plan stated clearly that:
    Indeed the law has been more than inaccessible and unfair to some groups, but has been an active agent of oppression and discrimination [5]

22. It seems clear from a glance at any of the definitions of justice that I have outlined and at the usages I have described, that law and justice are inextricably linked. How can anyone say otherwise? Nevertheless, they do, and frequently, and in my experience 'they' are usually found within law schools. Practising lawyers, whatever their area of practice, have an experience based knowledge of the connection. Just to finish my definitional section I'll pass on to:

    Clinic aka Clinical legal education

23. There have been attempts at definition. Both Simon Rice and myself have defined clinical legal education as a legal practice based method of legal education in which law 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 and even private law firms. The definition is perhaps too narrow now as some programs move away from the direct provision of legal services to individuals or groups and focus on involving students in legal policy or campaign work - real law in practice but perhaps not with an individual client sitting in front of the student. We are all familiar with the origins of clinical legal education in Australia. At our last conference in 2000, Jeff Giddings from Griffith University thoroughly surveyed the history and development of clinic in Australia- its growth out of the free legal services movement in the early 1970s, which had a substantial involvement of students and legal academics. The consequent ongoing connection of clinic with the community by the situating of programs within community legal centres - the university - community legal centre connection- has been traced by Mary Anne Noone,[6] and remains a distinctive characteristic of clinic in Australia.

    Goals and assumptions

24. If we are to advocate the proposition that clinic is the model on which legal education should be based shouldn't we spend some time reflecting on what it is we do and why we do it? Perhaps we believe the verandah is the best place for clinic. After all, in traditional Australian domestic architecture, the verandah serves many useful purposes. Not the least of these is to bring a breath of fresh air into the house. But verandahs need cleaning from time to time. Reflection is in order.

25. So why do we do whatever it is we do? What are the goals of clinical legal education? And what are the assumptions giving rise to them? Is it foolish to attempt a statement of generic goals? If we look back to our origins we might say that the goals came first and the method developed to achieve them. Are there therefore goals common to all programs? I am going to attempt the task.

    Goals

26. Clinic in Australia has traditionally had both educational and service goals. I would describe the educational goal as multi-faceted, that is to:

    * Through the practice of law to introduce law students to the ways in which legal rules and processes (law/ the legal system) impact upon ordinary people

    * Encourage students to reflect upon their experience of the law in practice and as part of this to critically analyse the social and legal impact (the justice) of existing legal rules and procedures.

    * Guide students to consider alternatives to the existing legal rules and procedures

    * Foster the acquisition of practical legal skills

    The service goal is I think one of community service. That is the provision of legal services to poor and disadvantaged people in the community.

27. I put these forward as suggested general goals. I could expand on each and I recognise that specific programs might have additional specific goals. I also recognise that over the nearly thirty year history of clinical legal education in Australia, the balance between the educational and service goals has tilted at various times.

    Assumptions

28. Underlying these goals is and was a set of assumptions about the law, justice, law school, law students and lawyers. Here are some examples:
    • Law students are desperate for practical legal experience. Of course not all are committed to legal activism. Some are in it just for the cv value
    • Most law students come from sheltered if not privileged backgrounds
    • Many law students are desperate to feel they are going into a career which has value and in which they can help people
    • Large numbers of people and groups of people in the community have no or little access to legal services. Barriers for them include language, cost, isolation, transport etc
    • Often there is no legal remedy where there should be.
    • Being a lawyer means having a professional responsibility to work for justice yet so many lawyers seem to be working with powerful interests against justice
    • Law school curriculum is totally removed from the reality of life in legal practice
    • Most law academics haven't a clue about how the law they teach (which is all rules and cases) operates on ordinary people nor express a view about right or wrong
    • Supervised clinical experience opens students' minds to the deficiencies in the legal system and gives them skills to work for change
    • The best way to change lawyers' values and conduct is to change legal education. Over time, clinical legal education will have this effect

29. If you accept this list as a fair representation of the range of assumptions underpinning the clinical method, then it certainly portrays a view that law and justice go hand in hand.

    Who do we think we are, or our self image as clinical teachers

30. My research into supervision practices conducted over the last two years (and still in the 'draft' publication stage - the 'too busy' excuse) revealed a profile of clinical teachers as lawyers coming into education from a legal aid or community law practice. This was not exclusively so but mostly so. For some time after becoming clinical teachers and supervisors, we still thought of ourselves as community lawyers first and teachers/academics second. Mostly, this changed over time. The self- description became closer to 'clinical supervisor and practitioner'. We continue to value and give a high priority to our role as legal practitioners but there was a recognition that we were in the clinic to educate our students. Consider the goals again.

31. I have some other suggestions about our self- image. Not all of them, when I see them in print, make me feel very comfortable. Some of them come out of my research and others are my own ideas - thrown up perhaps when I was feeling particularly self- lacerating.

    • We see ourselves as working for justice and as having a commitment to achieving access to justice for our clients
    • We sometimes see ourselves as activists with a mission to address every legal injustice we are confronted with
    • We believe we are good teachers and generally more skilled and certainly more caring than our other academic colleagues in the law school
    • We know we are innovative in our program development
    • Our view of our outstanding teaching is bolstered by the fact that three clinical teachers/programs have won Teaching Awards in the past few years
    • We think we work much harder than regular academics. After all we have 12 or so students to supervise, their client work to oversee, the class work to design and teach and the assignments to mark. Then we have all the administration and program development, maybe fund raising etc. Our colleagues only have to teach classes of 250 and mark the assignments. They have lots of time for esoteric research.
    • We know we are much better lawyers than they are. After all we do it every day
    • We think we have a better understanding of the workings of the local legal profession and of the issues it faces than do our non -clinical colleagues. We also actually know practising lawyers, judges etc unlike most of them
    • We sometimes feel inadequate in the law school environment because we know we don't write scholarly articles as much as we should

32. Is the self- image based on reality and knowledge or is some of it at least, based on prejudice and insecurity?

33. Does our practice bear out our beliefs about ourselves? I come back to a point made by yesterday's speaker about the irony of clinical teachers urging students to reflect on their practice but failing to do so themselves.

    • Have we designed our program to leave space for discussion with students of the justice of the legal system as played out in their case work?
    • Does our classroom component address systemic issues? Are the readings relevant to the clinical experience or have we just cobbled together a grab bag of Alternative Law Journal articles on the basis they do the job?
    • What approach do we take to our teaching of interviewing and communication skills?
    • Have we designed our assessment to meet our goals, ie to reinforce the 'talk' about injustice and action?
    • Have we consulted our academic colleagues both inside and outside the law school on any teaching issues?
    • Have we organised the clinical staff to have regular meetings - to debrief, to work out difficult students/clients? Ie the peer supervision model of the counselling professions
    • Do we use the OZ clinic list to raise issues for discussion?
    • Are we locked into the view that the case work experience is rich enough for our purposes? Have we talked to other clinical people or even other academic colleagues or other non lawyers about introducing other components?
    • Do we keep notes of recurring issues in the casework to base a law reform submission on? Do we talk to our law school colleagues about the issues?
    • How do we handle the litigation process? Do we use every rule of procedure at our disposal to win the case? Do we make sure the student never asks the criminal client 'what really happened'? Or do we work towards a different model of ethical practice?

34. I have asked these questions and tried to confront us with some perhaps uncomfortable ideas about how we see ourselves as clinical teachers because I think, clinical teachers - even more so than other law teachers - have to meet William Pincus' challenge. In other words, if we set clinical legal education up as the most appropriate method of legal education and ourselves as extraordinary teachers and academics, then we have to work hard to meet the expectations.

    The Role of clinic within legal education

35. This leads me to the core of my talk - the role of clinic in linking law and justice.

36. My response to this topic - essentially a question - comes out of the preceding discussion. My strongly held view is that the only legitimate purpose for the continuance of clinical legal education programs in Australian law schools is the integration of law and justice into the legal education curriculum. The role of clinic in legal education therefore is to be the means by which students and academics make the link between law and justice in practice. I have only recently realised that this is what I think but it is a view that has been bubbling away and directing a variety of my activities for some time. It should follow that if the link is continuously made the community will be served by more ethical lawyers and experience access to justice more effectively. High hopes indeed!

37. Before I go on to talk about how clinic can play out this role, I make the probably obvious point that while it is useful for directors of clinical programs to focus on the practical skills aspect when recruiting students and persuading Deans and governments to put up more money, there is strictly speaking no need in the Australian legal training system for universities to fund a clinical program to teach practical legal skills. That supposedly happens in the Practical Legal Training post degree stage of legal education. In any case, skills are embedded in law courses these days and simulation is a wonderful opportunity for skills training. Skills training might be better with a real client and a critical approach but it doesn't need poor clients.

    Practical Opportunities - How to carve out the Role?

    It is in the practical development of the role that the two concepts I mentioned at the outset, clinical teacher as role model and the nature of ethical practice, have most importance. Carrie Menkel-Meadow echoed William Pincus when she asked 'Can a Law teacher avoid teaching Legal Ethics?'[7] Her argument was that everything we do and say in teaching the law gives a message to our students "This is how the law works. This is how lawyers work". How much more is this the case in the clinical environment where we carry the added influence of practitioners.[8]

38. The nature of ethical practice influences the way we approach this assumed role. It must include a belief that lawyers have a positive obligation to work to improve access to justice and conversely that they do not encourage the use of law to bring about injustice, oppression or discrimination.

39. I refer back to some of my earlier questions about specific practices in working with clients.

    How can we do more than we do?

40. I can hear a collective but politely silent groan around the room. What is this woman on about I hear you ask? She mustn't have enough to do in her clinic if she is dreaming up more projects! I can assure you I'm pretty busy but - on reflection - maybe I could organise my work better and maybe I should rethink what and how I do what I do.

41. It is in this spirit of reflection and self-analysis that I make some practical suggestions. I hope that they might make our lives as clinical teachers more fun, lead those of us who want to, onto the scholarship path and certainly not simply add to our work -load.

42. A final point before I begin my list. As I said a little while ago, it is implicit in what I say that the clinical goal of community service is central to this project.

    Practical ways for clinic to link law and justice

43. First step: If your clinical program and you, are based off campus, pay regular visits to the law school. If that's too hard - although I strongly urge you to make the effort - at least visit the website and visit your academic colleagues via cyber space. Why?

44. Let's value our own work but let's not be prejudiced. Let's not be dismissive of the pressures on our non-clinical colleagues. A narrow and self-absorbed attitude might simply marginalise clinic even more and emphasise the distance (intellectual and physical) between clinical and mainstream legal education.

45. Second step leading on from the first: Look at the programs we run. I know that much if not all of the work done in clinical programs around Australia could be described as educating clinical students to draw connections between law and justice (making the link). BUT I THINK IT IS MOSTLY DONE IN ISOLATION FROM OUR ACADEMIC COLLEAGUES AND THE VAST MAJORITY OF LAW STUDENTS.

    Proposals

    1. Take a close look at the work you are doing in the clinic. If it's a generalist clinic, are there recurring problems, eg, credit, mobile phone debt, employment abuses, etc. In a specialist clinic are there legal issues that need research. Does the work raise wider issues of public policy?
    2. Identify the research strengths of your colleagues - use the web page. Work out who seems to be working in areas related to the issues you have identified.
    3. Wearing your innovative teacher hat, imagine yourself as a contracts teacher or an employment law teacher or a teacher of international human rights. Would your casework issues present interesting class problems?
    4. Wearing your clinical teacher on the scholarship trail hat could the legal issues you have identified form the basis for a research grant application?
    5. Ring up your colleague, suggest you have an idea for a research proposal and thought they might be interested in working together. Flatter them, suggest a coffee - on campus at first - and then invite them to the clinic. You may be astonished at their knowledge of the area and interest in a collaboration. Don't be dismissive of them just because they don't know anything about legal practice and might not want to know. You might end up with a valuable piece of research with practical use. At the very least you have made a connection with a colleague for the future and they might, with your encouragement, use your examples in their teaching.
    6. Talk to the Director of the law degree honours stream. Suggest they refer students who are looking for topics, to you. Suggest some topics to the director. Talk to your clinical students about an honours thesis.
    7. Get to know the first year teachers. The direct clinical experience is only open to a few usually advanced students. The first year teachers have enormous influence over hundreds of students. Suggest you could come and talk to the group.
    8. Continue to do as many of us already do. That is, occasionally organise seminars around topics relevant to the clinical work. Play the game and word the title in a way to appeal to an academic audience (but don't get carried away by post-modern language)
    9. Examine your assessment in the clinical subject. Perhaps that written assignment could be redesigned as a team project and a law reform submission. I know at least one Australian clinical program where this has happened with much resultant publicity and potential for student publication. While this might be restricted to a few students it spreads the message to the community and to the law school [9]
    10. Continue to be a publicist for clinic and its work. Most of us are quite good at this. It is important to ensure that we don't appear to denigrate our law school colleagues in the process
    11. Offer to give a staff seminar. Most law schools have these on a regular basis as a way of staff presenting ongoing research. It need not be too threatening although assessment by one's peers is always nerve wracking. Go back through the semester's work and find a case that raised difficult legal or procedural issues or some other issue of law and justice. You might present it as a teaching issue or you might be able to present it as ongoing research into the particular issue and an opportunity for further research. Think of the seminar as one of your classes and you'll be fine.
    12. Even better and probably less work, explore them with visiting lecturers. This is an opportunity to share your knowledge of a different experience of the law by introducing eg, a public interest lawyer, an activist, a partner of a law firm who does pro bono work. You might find that your colleague is delighted. Two colleagues of mine from University of Sydney Law School, Les McCrimmen and Graeme Coss, and I were fortunate to be able to take this approach at our respective law schools this year by taking advantage of the Commonwealth Law Conference in Melbourne. We persuaded our law schools and our student associations to put up a small amount of money and we brought a wonderful Ugandan human rights lawyer and parliamentarian (Dora Byamukama) to Sydney and Melbourne early to speak to our first year classes and give other seminars. At La Trobe University, the law students association rapidly organised a public lecture and publicised it widely. The feedback from the first year teachers at both places was that the students were buzzing after the talks. They were certainly full of questions. That was probably close to 500 students in total. Personally, I had approached the first year coordinator in the belief that they were rigid and narrow in outlook. I discovered that they were excited by the idea and want to do something similar next year.

46. Some of this might appear to require more work and we already think we work harder than our colleagues. The answer might be, once again, to reflect on how we run the clinic, to focus on our goals and to readjust our priorities. This might mean making hard decisions such as the decision not to take on a new area of work. It might mean 'letting go'. By this I mean accepting that we can't control every aspect of clinical work. We might have to allow others in the law school who are not clinical academics to develop a program, write the curriculum and take the credit.

    Conclusion

47. The key to clinical legal education's role in linking law and justice - in integrating the two within the law school mentality - is, in my opinion, collaboration with our law school colleagues. Unfortunately, it is probably up to us to make the overtures and make the case that it is in their interests. It's also up to us to make the case that, as Gary Blasi said at the 1996 APLEC conference: Law is about problem-solving, but it is also about justice, about moral judgments and ethical decisions, about the intersection of how things are and how they ought to be [10]

48. There are no doubt lots of other ways in which we might proceed than my short list of suggestions. However, given the state of university education in this country and the challenges facing the legal profession as lawyers try to find a new vision of lawyering in an uncertain regulatory environment, who better than clinical law teachers to set the example of the value of justice in law.