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Do Law Clinics help to create progressive lawyers for the future?
by Donald Nicolson
Academics on the left have an important role in the fight for social justice. Most obviously their research and writing can expose injustices in law’s content and problems regarding access to justice, as well as make suggestions for reform. They may even join and advise political organisations mounting reform campaigns. Less obviously, but equally importantly, academics can help inspire new generations of lawyers to devote their skills and knowledge to redressing injustice. Unfortunately, the dominance of the careers market by the large law firms and cuts to Government funding of law centres and civil legal aid means that there are only limited opportunities for graduates to pursue careers orientated towards making changes to law and society such as through public interest litigation or helping those most in need of legal services. Consequently, many progressive lawyers of the future might have to make do with campaigning or providing pro bono assistance in their spare time.
Nevertheless, whatever the exact level of available opportunities for combining a legal career with political goals – and here it should be remembered that the legal services landscape is never static – there will always be a need for new generations of lawyers with a social conscience and hence a role for academics in helping to produce them. In fact, however, research at least in the US, albeit not confirmed in two very small UK studies, suggest that left-learning legal academics might do well merely to encourage incoming students to retain their altruistic and political motivations. This is because any impact legal education has on student attitudes seems to be more in the direction of dampening down altruism and de-politicisation than the opposite. This seems plausible given the nature of what is often called the hidden curriculum, namely the unarticulated values assumptions, which supplement and may be as powerful as those contained in the formal curriculum, and which are communicated by example, by curriculum choices as to what courses are or are not taught, at what level and for what credit points, and whether they are compulsory, and by student culture and contacts with the legal profession.
Thus, notwithstanding the shrinking dominance of black-letter scholarship and the growth of ‘law and…’ courses, most legal education probably remains focused on teaching ‘the law’ and ‘how to think like a lawyer’. The low visibility of issues of justice and the role of lawyers in furthering justice or indeed injustice imparts a subconscious message about their lack of importance. Moreover, this separation of law and justice, and the relegation of the latter to ‘soft’, and often optional, subjects like jurisprudence is likely to lead to an uncritical acceptance of law’s underlying values as neutral and objective, and the belief that law is justice. None of this is helped by the increasingly competitive nature of legal education in terms of admissions, results and obtaining employment echoes the competitive individualism celebrated by law. Similarly, the increasing expense of a university education encourages students to see it as a short-term investment for long-term financial gain. The channelling of students into lucrative law careers rather than those devoted to helping the vulnerable is reinforced by the preponderance of law subjects involving the interests of the rich and powerful, by large law firms’ dominance of the recruitment process, and by informal messages about legal careers provided by staff and fellow students. However, while many academics may portray a career in large law firms or at the Bar as the height of ambition, others may engender student cynicism by openly disparaging lawyers as mindless form-fillers and grubby money seekers. This leaves little space for the conception of lawyer as hero, bent on seeking justice and helping those in need.
It is clear then that left-leaning academics need to ensure that issues of justice and access to legal services are raised whenever relevant, and especially in classes which prima facie do not lend themselves to such discussion or which traditionally have been taught in ways which hermetically seal them from issues of politics, morality and justice. However, unless such issues are linked to career choice, there is a danger that they are seen as appropriate for pursuit only by academics or those who turn their backs on legal careers. Consequently, left-leaning academics need to ensure that they also highlight the positive role that progressive lawyers have played throughout history and that the opportunities for combining a legal career with a desire to ensure justice are publicised and valorised, through, for example, having representatives to speak to students and at law fairs. One of the biggest challenges for academics and indeed practitioners on the left is to explode the idea that the ‘best’ law graduates go into the most highly paid jobs and the rest do legal aid, law centre and high-street work.
However, it is generally recognised by educational experts that the most promising way to reinforce if not engender pro-social attitudes in law students is through university law clinics. Helping flesh and blood clients imparts an immediacy and provokes an engagement with issues of justice which didactic and even interactive forms of teaching like tutorials and seminars cannot replicate. Where learning experiences are realistic, and relate to the fulfilment of future social roles, educationalists argue that learning is more profound. Engaging with actual clients, particularly on an emotional level, may evoke feelings of empathy which are so important to the development or reinforcement of a commitment to justice. Moreover, feelings of satisfaction at helping clients may, as with my experience as a student during apartheid South Africa, instil a life-long desire to use one’s skills to make a difference. Pro bono is addictive as many find!
Law clinics have other advantages. Because of their perceived expertise, clinic supervisors may function as influential moral exemplars, modelling an altruistic commitment to the community. Finally, clinics reveal the extent of unmet legal need, and social and legal injustice, that legal practice can involve helping others, and that this can be rewarding as well as intellectually challenging.
Thus far evidence of this predicted ‘clinic effect’ has been confined to anecdotal reports. More recently, however, I have begun to uncover more convincing supporting evidence. Thus a recent survey of second year University of Strathclyde students revealed that their experience of taking on cases had led many Law Clinic members to become more sceptical about law’s justice and fairness, and current levels of access to legal service, though also more convinced about its value in redressing injustice and the need for pro bono services. Compared to those students without Law Clinic experience they seemed far less complacent about the supposed justice of the current legal status quo.
More reliable, however, are the comments made by students in weekly dairies kept for a class for clinic students. This is because they were not responding to specific questions, but chose the topic for discussion themselves in writing a weekly dairy for the class in which they were required to reflect on their ongoing clinic experiences. Analysis of the diaries of around 50 students, reveal that they were frequently stimulated to reflect on their personal values and ethics, and how they might play out in practice, with many admitting to not having previously considered their motivating moral values and even the justice of the legal system. Many reflected on and were influenced in their attitudes to career choice, and some were prompted to question and even change their decision to join a commercial law firm or to confirm their desire to help those in need once qualified.
Feelings of satisfaction at helping others were especially important in encouraging students to think about pursuing careers in which they could help others. One stated that by exposing her ‘to the wide variety of options other than commercial law’ the Law Clinic helped her to discover a ‘social conscience’ She went on: ‘I didn’t start my law degree to “make a difference”, my goal was simply to earn enough money so I can afford some of life’s luxuries and have no financial troubles. However, having seen the positive effect my time and effort has had on clients… now my ultimate goal is to find a job that provides both financial security and a chance to help communities or less fortunate individuals.’ Similarly, another admitted that before his Law Clinic experience he imagined a career in a large law firm and ‘hadn’t really considered the larger ideal of social justice.... Now I find it impossible not to.’
Also important to reflection on career choice were the role models provided by the academics and practitioners involved in the Clinic. Thus one of the practitioners who works as a legal aid lawyer and has established an environmental law centre showed one student that she ‘can work in private practice and still achieve her ultimate aim of helping others’, whereas another declared that she had acted as ‘a positive role model to students’ and been ‘inspirational to me for my own career’. And lest it be thought that the above comments were merely cheap talk or even cynically designed to curry favour with academic staff, their authors have all gone on to match words with deeds. Indeed, one now works with a major pro bono organisation and another has just been appointed to the access to justice committee of one of the professional bodies despite only just qualifying.
For those involved in running student Law Clinics there is little need to wait for the sort of statistical evidence of the impact of a Law Clinic on student attitudes that will make the case unanswerable – if indeed that is possible. My recent study shows that a sizeable group of students commence their studies with a desire to help others and make a difference to society. Law clinicians are sure that clinics can have a positive impact in helping to maintain such commitments notwithstanding legal education’s current hidden curriculum. And where, like the Strathclyde Law Clinic, the needs of clients and the community take precedence over educational goals and where, because clinic involvement is wholly or primarily voluntary in nature, it lasts longer than the time taken to gain credit for a clinical class. I am also convinced that Law Clinic experience can even help persuade some without such an initial predisposition to develop the desire to use their skills and privileges to the benefit for those most in need and for society as a whole rather than those who can afford the fees of City lawyers and top QCs. While resources prevent all law students undergoing such an experience, it is probably better that the 50 or so who join the Clinic every year and who may remain members for up to five years gain an intensive and lengthy ‘apprenticeship in altruism’ than all law students, including those with no inclination other than to pursue their own self-interest, have a brief and probably patchy exposure to the sort of experiences which if longer and more complete will have a positive impact on less cynical students.
Donald Nicolson is a professor at the University of Strathclyde, founding Director of the University of Strathclyde Law Clinic and erstwhile founding Director of the University of Bristol Law Clinic
