Following social and political unrest in the 1960s, clinical legal education was introduced to address injustices and the maldistribution of wealth. However, there is no universal definition of this concept. For the purpose of this paper it will be defined as ‘learning from real legal interactions through reflection’. This definition is a combination of Meltsner and Schrag’s, which suggests it is the ability to see through the lens of a practising lawyer, where facts are unavailable, disputed or distorted and Kolb’s creation of the experiential learning cycle which substantiated the idea that experience plays a major role in learning and the development of knowledge. It will be argued, although there is tension between the educational aims of a clinic and its provision of legal services, the conflicting demands of the student and client are open to reconciliation. This will be done by considering tensions in the following situations:
• The creation of a realistic professional environment;
• Educating students about the societal motivations behind the establishment of a clinic and;
• Being able to act cohesively with the legal institution where the clinic is set up.
The learning environment forms the basis of clinical education because it affects the way a student interprets knowledge in a professional setting. Gane and Huang suggest the creation of a realistic work environment is what facilitates experiential learning. Students learn to deal with legal concepts, assess their value and the principles that underpin them. It bridges the gap between a traditional law degree and a practising situation because real cases span several practice areas. However, a clinician is conflicted between creating this authentic environment for a student and providing a proficient legal service to a client. While it allows for autonomy, a lack of supervision makes it harder for a student to improve their research and interview procedures because the clinician cannot provide them with points to reflect upon. If a balance is not struck between controlling casework and facilitating learning, the benefits of a clinic could become diluted and the risk of clients being treated as a means to an educational end increased.
Reconciliation between the two could be achieved through the introduction of supervision skills workshops, as have been held in the last six Australian Clinical Legal Education Conferences. Hugh Brayne, a former clinical scholar adapted his approach after attending similar seminars. For his first four years he sat in on every interview but then learned he could be ‘usurping the student’s relationship with the client’. He recognised his previous approach had resulted in a ‘failure to separate the two goals of legal service and student learning’. Training supervisors would improve the legal and educational efficiency of a clinic because it will allow them to create a model of learning where involvement is sufficient, not excessive.
Furthermore, there is debate in the UK clinics surrounding the suppression of societal needs in favour of pursuing educational aims. Pincus states a primary reason for clinical education is so students ‘develop a sensitivity to malfunctioning and justice’. However, the number of those not receiving legal assistance in the UK suggests clinic students are not applying what they have learned and there is a lack of emphasis on social justice education. Unless this obligation to promote justice, morality and fairness is instilled, the weak and vulnerable will continue to be used as vehicles for educating those who will join the ranks of the privileged. In developing nations such as South Africa, this issue is not present because law school clinics operate exclusively as sources of legal assistance to the poor. This pressure to provide is only present because the majority live in poverty. If this social justice orientated model was adopted in the UK however, there would be no scope for education.
Instead, it would be better to look at methods of compromise. Nicolson suggests utilitarianism can justify the use of clients for educational needs because a clinic provides long term benefits to the community. It produces experienced graduates with a better understanding of the law because their education was rooted in practice. This will have resulted in improved professional judgement and a better ability to interact with a client and other lawyers. Yet, McDiarmid argues only a small number of students benefit from this intense experience and many are only involved for one semester. This undermines the longevity of the benefits because only a small number of graduates have the desired level of experience. Moreover, it further exacerbates the idea of the poor being exploited so people can ‘try out’ their legal skills with little to no consequences. There is no regard for the potentially negative outcomes this may have.
Alternatively, the social justice motivations behind a clinic can be promoted alongside its educational aims. Quigley offers support for this, arguing ‘a complete clinical education experience should include lessons about social justice’. Wizner proposes a way of achieving this is to stress the importance of cases such as Brown v Board of Education, Habib v Edwards and Boddie v Conneticut. Learning about these will encourage students to challenge injustices beyond the clinic environment; they will have seen the positive changes effected because of the decisions of the case. Teaching about social justice helps to raise awareness of issues and urges students to think analytically about their own viewpoints. Hybrid clinics, such as the Queen Mary Legal Advice Centre, are also an option. They utilise the reality of the client’s case and use it to complement student learning. The roots of clinical education are explored in seminars so students learn to appreciate the basis of clinics. Public Interest Law clinics in Latin America have shown that clinical legal education is not restricted; there is room for adaptation. In Argentina, Mexico, Chile and Colombia clinics are focused on human rights but are aware of the limited prospects for achieving social change via legal activism. This shows reconciliation in play because social justice is still a mission for them, despite being limited by the laws of the country. There is no such reason why equity should be difficult to achieve in the UK. Consequently, the need to harmonise the educating facility of a clinic and the need to promote justice to benefit the client are two aims that can be reconciled.
Institutionally, there tends to be more support for traditional legal studies, as opposed to skills based training. The exertion of such pressure means in such circumstances a clinic will naturally be established to serve an educational purpose, subordinating the goals of the client. This conflict and marginalisation of the clinical faculty can reduce the effectiveness of legal services provided. Law schools should look to the ‘collaborative advantage’ proposed by Huxham and Vangen; it is in the interests of organisations to work together. This will enable the promotion of effective community service whilst still benefitting students. An effective partnership will undoubtedly foster sustainability of clinical legal education; tension due to institutionalised support does not have to exist.
In conclusion, there will always exist a tension between the educational aims of a clinic and the service it aims to provide. The potential models of reconciliation also reflect these tensions. For instance, a move towards the earlier models of legal education, where the educational benefit to students was always secondary, results in a devaluation of the educational aims of a clinic. Yet, allowing this legal enterprise to be discredited by the ‘gentrification’ of legal education would lead to the provision of quality service being treated as less important than vocational training. However, reconciling the tensions in supervision, social justice promotion and the institutionalised beliefs will give rise to maximum efficiency. This solution of reconciliation is illustrated well by the metaphor of a tightrope, which suggests a balancing act. As opposed to promoting one aim over the other, they both should be used to supplement each other in harmony.