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Independent Evaluations of Clinical Legal Education Programs: Appropriate Objectives and Processes in an Australian Setting

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While some major Australian law schools remain in what can only be described as clinical oblivion, 20 of our 29 law schools describe themselves as having clinical programs of one variety or another. This number signifies that the majority of Australian law deans now believe that some sort of clinical program is important to the educational and even social objectives of their schools. At its heart, it is argued, clinical legal education is simply the best way to teach normative law and the skills of normative analysis and to instill the sense of professionalism in students which a sceptical client community increasingly considers essential in its lawyers. But nothing is taken for granted in education, and clinical programs must periodically evaluate their performance in the same way as other programs, particularly when the prize could be greater overall engagement from the new federal government in innovative tertiary legal education. Periodic reviews by law schools of all aspects of their legal education mix are a reality, and their cyclical re-occurrence provides ongoing opportunity to improve the integration of conventional and clinical law teaching. Clinical educators need to be prepared for the cyclical review process, not because reviews can help to sustain their program but because such reviews provide opportunities to entrench the sustainability of legal education itself. This article is about the need for clinicians to be effectively prepared for independent, external reviews of law school clinical programs. It identifies what a clinical review should examine and what process is best adopted by such an evaluation in an Australian legal education setting, in order to maximize the prospects for workable and integrated clinical-legal education.
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Electronic copy available at: http://ssrn.com/abstract=1500146
Independent Evaluations of Clinical Legal
Education Programs: Appropriate Objectives and
Processes in an Australian Setting
A
drian Evans and Ross Hyams
Faculty of Law, Monash University
Research Paper No 2009/22
Date 4 November 2009
This Paper can be downloaded without charge from the
Social Science Research Network electronic library at:
http://ssrn.com/abstract=no.1500146
www.law.monash.edu
Electronic copy available at: http://ssrn.com/abstract=1500146
INDEPENDENT EVALUATIONS OF CLINICAL LEGAL EDUCATION
PROGRAMS
Appropriate Objectives and Processes in an Australian Setting
Adrian Evans and Ross Hyams
*
While some major Australian law schools remain in what can only
be described as clinical oblivion, 20 of our 29 law schools describe
themselves as having clinical programs of one variety or another.
This number signifies that the majority of Australian law deans now
believe that some sort of clinical program is important to the
educational and even social objectives of their schools. At its
heart, it is argued, clinical legal education is simply the best way to
teach normative law and the skills of normative analysis and to
instil the sense of professionalism in students which a sceptical
client community increasingly considers essential in its lawyers.
But nothing is taken for granted in education, and clinical programs
must periodically evaluate their performance in the same way as
other programs, particularly when the prize could be greater
overall engagement from the new federal government in innovative
tertiary legal education. Periodic reviews by law schools of all
aspects of their legal education mix are a reality, and their cyclical
reoccurrence provides ongoing opportunity to improve the
integration of conventional and clinical law teaching. Clinical
educators need to be prepared for the cyclical review process, not
because reviews can help to sustain their program but because
such reviews provide opportunities to entrench the sustainability of
legal education itself. This article is about the need for clinicians to
be effectively prepared for independent, external reviews of law
school clinical programs. It identifies what a clinical review should
examine and what process is best adopted by such an evaluation
in an Australian legal education setting, in order to maximise the
prospects for workable and integrated clinical-legal education.
Introduction
At last count, 20 Australian law schools described themselves as having clinical
programs of one variety or another.
1
Since there are 29 law schools in the
country, this number signifies that the majority of Australian law deans now
believe some sort of clinical program is important to the educational and even
social objectives of their law schools. Clinical programs broadly attempt to
teach a practical and critical understanding of law and legal practice by exposing
*
Associate Professor Evans and Ross Hyams teach at Monash Law School and in its clinical
program.
1
Kingsford Legal Centre (1996), p 3.
Electronic copy available at: http://ssrn.com/abstract=1500146
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
53
students to real legal problems in the context of real clients. The best programs
may be progressively humanising Australian legal education by reducing its
positivist emphasis and remoteness from justice. It is argued that a clinical
experience develops in graduates a range of client-focused skills by exposing
law students to a number of alternative methods of conflict resolution,
encouraging a sense of greater ethical accountability among future lawyers and,
should this not be enough, helping to systematically address a number of social
responsibility issues. If all this is occurring, then it is important to consider the
overall effectiveness of Australian clinical approaches, in the interests of
maximising the benefits of the methodology and positioning the clinical
movement to take advantage of a greater overall interest by the new federal
government in innovative tertiary legal education.
The objectives of clinical programs have been well discussed
2
and, while
this article revisits that discourse to some degree, the discussion occurs in the
context of a related development: evaluation of performance. Periodic reviews
by law schools of all aspects of their legal education mix are a reality, and their
cyclical reoccurrence
3
provides ongoing opportunities to improve the integration
of conventional and clinical law teaching. Within this culture of review, it is
becoming increasingly common for Australian law schools to examine their
clinical programs against a range of variable criteria and to do so using diverse
(and sometimes perverse) processes.
This article is about the need for clinics to be effectively prepared for
independent, external reviews of law school clinical programs. It is a modest
attempt to map the review landscape in the interests of a ‘leavening’ of legal
education. It will identify what a clinical review should examine and what
process is best adopted by such an evaluation in an Australian legal education
setting, in order to maximise the prospects for workable and integrated clinical-
legal education.
Achieving continuing majority support from law deans for clinical legal
education has been slow to develop and is still proceeding cautiously, but such
support is far more substantial than in the United Kingdom,
4
even if not yet as
2
See, for example, Rice (1996); Brayne (1998).
3
The increasing prominence of ‘quality’ as an ingredient in tertiary education (with periodic
quality reviews administered by the Australian Universities Quality Agency) appears to have
played a part in the development of a wider ‘review’ culture in all university programs.
4
There are no central data on the number of UK clinical programs, but the number is
insignificant. Philip Plowden, Professor of Law at Northumbria University, advises as follows:
‘[there is a] mailing list of law schools who either have or plan to have pro bono programs.
And note the distinction — most of these are not clinics in any meaningful sense, they are pro
bono [programs] — students going out and doing street-law type activities, offering legal
translation services, and general community work … I can count the number of assessed
clinics in the UK on the fingers of one hand; Northumbria remains the major player, [because]
it counts for almost 40% of the final year of [the] degree; Sheffield assesses its clinic; the
College of Law and ICSL have clinic options which get marked; BPP has a pro bono stream
which I think is optional for most but is pass/fail … Strathclyde has a small but interestingly
assessed clinic. And off the top of my head I think that that is it. Out of almost 70 law
schools.’ Personal correspondence with author, 28 February 2008.
54
GRIFFITH LAW REVIEW (2008) VOL 17 NO 1
pervasive as in the United States.
5
Programs range in scope and format from
traditional, comprehensive ‘live-client’ clinics
6
involving significant numbers of
students, run by law schools with law school supervisors and significant student
responsibility, to an externship or placement program which places just a few
students in a private law firm or non-government/community organisation and
delegates most of the supervision to staff of those bodies. Many law schools
deliver both in various combinations, depending largely on the resources
available and to a lesser extent on decanal leadership and colleagues’ conception
of legal education. Judging by Australian law school websites, some now even
assert that their clinical programs represent the ‘cream on the cake’ of their
overall offerings and where that is the case, clinical offerings tend to be
comprehensive rather than narrow in scope and impact.
7
However, some major
law schools remain in what can only be described as clinical oblivion, to the
detriment of their students and the Australian community.
8
5
US clinics are completely accepted as a part of legal education. Law school clinics now
include the major Ivy League institutions, with the most significant recent addition occurring
at Stanford, which is attempting to provide a comprehensive clinical exposure to all of its law
students. See Stanford Law School, www.law.stanford.edu/news/pr/47. The US Clinical Legal
Education Association (CLEA) lists 218 clinical programs (see CLEA ‘Compiled List of Law
School Clinical Directors’ at www.cleaweb.org/download.htm) and, although the American
Association of Law Schools (AALS) does not represent all US law schools, the organisation
numbers about 160 members (see AALS, www.aals.org/about_memberschools.php).
6
The so-called ‘live-client’ clinic places law students in direct contact with clients experiencing
current legal problems.
7
See, for example, La Trobe University website at Latrobe University,
www.latrobe.edu.au/law/why_law.html: ‘La Trobe Law is a distinctive Law school because
we provide opportunities for clinical work in real situations to acquire practical legal skills’;
University of New South Wales website at www.law.unsw.edu.au/About_Us: ‘Another
integral part of the Faculty is Kingsford Legal Centre, our community legal centre on campus
in which all law students gain experience’; Murdoch University website at Murdoch
University, www.law.murdoch.edu.au: ‘Our students also obtain practical experience in the
School’s community law clinic, SCALES, working directly with clients and dealing with the
real-life issues that shape our society’; Griffith University website at Griffith University,
www.griffith.edu.au/school/law: ‘The Law School offers one of the most comprehensive suites
of Clinical Legal Education courses in Australia’; University of Newcastle website at
University of Newcastle, www.newcastle.edu.au/school/law/unlc: ‘The School of Law at the
University of Newcastle has established a reputation for innovative legal education. The
UNLC provides an intensive clinical placement site for students.’
8
The University of Melbourne is the primary example. The ‘Melbourne model’ of legal
education (and much else) could produce law graduates with a wider disciplinary awareness,
and for that reason a more comprehensive doctrinal knowledge, but it builds on a law school
that over the years has declined to adopt clinical methods despite several overtures and
involves privatised and narrowly elitist education of those already most able to access it. A
new Melbourne Dean of Law, who has clinical experience in his background, may change this
since the graduate model is acutely well suited to clinical methods, but even if this change of
approach at Melbourne were to happen, it would not migrate to other law schools (for whom
the educational mission is still decidedly undergraduate and under-funded) without major
federal government funding initiatives.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
55
Comprehensive programs tend to evidence reasonable size in terms of
student numbers, the range of legal areas covered, community integration,
general practice and specialised delivery modes, as well as the level of resources
provided by the law school. In this article, there is no attempt to deliver an all-
category evaluation of clinical programs or to define the minimum level of
funding, mandatory staff:student ratios and other key performance indicators. A
contemporary Australian study of these issues is needed, but is beyond the scope
of this article or current resources.
9
Rather, the focus here is on the aspects of
undergraduate
10
clinical programs which ought to be considered by a clinical
review because they best promote student learning and development and
strengthen the core performance of the individual program. Within this
paradigm, ideal numerical parameters of clinical programs may emerge in any
one review, but that outcome is incidental for present purposes. The focus of
this preliminary paper is founded on the observation that, at its heart, clinical
legal education is simply the best way to teach normative law and the skills of
normative analysis,
11
and to instil the sense of professionalism in students which
a sceptical client community increasingly considers essential in its lawyers.
12
In a pragmatic and even evangelical sense, it is the clinical review which is
the strategic opportunity to expand clinical consciousness in a law school, rather
than the convening of a signature conference or the publication of yet another
warm-hearted article about the general desirability of clinical methods. While
the latter two events — particularly conferences — contribute to raised
awareness, they do not ordinarily provide policy opportunities to engage non-
clinical teachers, deans, law school executives or other university decision-
9
Such an exercise is a major empirical project requiring significant external research funding.
The policy range of a wide empirical study is also likely to be far more comprehensive than
that of the present discussion. The Committee of Australian Law Deans (CALD) has asked
Professor Gary Davis of Flinders Law School to undertake a Carrick Institute-funded
investigation of ‘Learning and Teaching in the Discipline of Law’. This investigation is
ongoing and constitutes a ‘discipline-based initiative’ within the Carrick Institute umbrella. It
will have a considerable impact on legal education in years to come but, as presently intended,
will not specifically address clinical objectives, methodologies and constraints. See Gary
Davis, National Discipline-Based Initiative on Legal Education in Australia, Goals, Plans and
Progress, Abstract, at http://law.gsu.edu/FutureOfLegalEducationConference/abstracts.php.
10
Comprehensive clinical programs are increasingly evident by their provision of both
undergraduate and postgraduate courses, but this article concentrates on the former only.
While Australian legal education remains essentially undergraduate, and while most future
Australian lawyers obtain their essential preparation in that context, undergraduate clinics will
continue to be the main policy arena.
11
The normative educational value of a well-executed clinical methodology is not often
contested by law school leaders. See, for example, the 2006 view of the Dean of Law at
Stanford Law School as to the ‘3D’ law degree and the role of clinical experience in that
model: Stanford Law School, www.law.stanford.edu/news/pr/47. This is correct even though,
as indicated at note 9 above, individual legal academics and some law schools are resistant to
experiential learning and reflection.
12
Consider, for example, the degree of public scepticism about large law firms arising from the
over-zealous representation of tobacco companies: Simons (2002), p 1.
56
GRIFFITH LAW REVIEW (2008) VOL 17 NO 1
makers in the intense manner achieved by a clinical review. To that end,
preparing for a review is really an exercise in clinical community development,
so much so that the potential for program decline or renewal may be largely up
to clinical teachers, depending upon whether they see the review as a strategic
opportunity or a burden.
Clinical educators need to be prepared for the cyclical review process, not
because reviews can help to sustain their program, but because such reviews
provide opportunities to entrench the sustainability of legal education itself. This
potential is particularly important among colleagues who remain wary of
resource implications or uncomfortable with what they consider to be an over-
emphasis on legal practice.
13
Awareness by clinical educators of the opportunity
in a review cycle to promote experiential, clinical methodology as the
ascendant, integrated approach
14
to Western legal education ought to be grasped
by clinical teachers, and especially clinical directors. But this task need not be a
lonely or debilitating exercise. There are likely to be many clinical graduates,
especially in the judiciary and government, who are willing allies in this
persuasive exercise and who are anxious to contribute.
15
It is, accordingly, useful for clinical directors to foster a positive attitude to
clinical methods and their review among clinical staff so that together they
collectively promote clinical methodologies before a review cycle commences
and are motivated to implement the recommendations that later flow from the
actual process. Clinical directors contemplating a review indeed, at all times
— need to be deliberately and carefully political about the place of clinical
programs in the legal academy, if they are not already. There are several
13
Wariness of clinical methods remains alive and well among many legal academics. Burridge
and Webb have recently published an exploration of what they describe as ‘post-liberal’ legal
education. They acknowledge this wariness in others and underline the importance of
reclaiming the essence of liberal, contextual education territory in the face of pressure for
technically biased training in law schools, but are clear that experiential teaching, including
clinical programs, transcends the educational gap between the realities of legal practice and,
for many academics, the too-comfortable task of teaching legal doctrine without any or
sufficient legal practice context. See Burridge (2007), p 97.
14
See n 13. Burridge et al come close to this position, but two important United States authors
are even stronger on this point: see Chavkin (2002) and Stuckey (2007). The conviction that
clinical method is pre-eminent is not new. Simon Rice, a former clinical director of Kingsford
Legal Centre, has referred to Jerome Frank’s venerable and much cited article ‘Why Not a
Clinical Lawyer School?’ (1933) 81 UPaLR 907, in which Frank wrote: ‘Is it not plain the law
schools should once more get in intimate contact with what clients need and with what courts
and lawyers actually do?’ Few people citing that article know that Frank’s advocacy for a
clinical model in legal education was that of a hardline legal realist.’ Extract from Rice (2003).
15
Consider this statement from a completing clinical student who was asked to offer a comment
to the Monash clinical review in 2006–07: I would have to say the best subject I have ever
undertaken has been Professional Practice — and this is coming from a student who as to date
completed over 40 university undergraduate subjects! I have enjoyed every minute of the
subject, from the stress of annoying clients to the joys of closing a file and everything in
between. And as I write this I can not help but feel a little bit of emptiness and sadness start to
linger in the distance that very shortly this will all be over.’ (AdeC., Monash-Oakleigh Legal
Service Inc., Semester 2, 2006)
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
57
practical steps that can be taken here. Accordingly, if a clinical director is not
physically located in the main law school building, it is important that they
recruit a well-regarded academic whose office is in that building, because day-
to-day advocacy for the clinical program by such a person is a critical factor in
maintaining a positive atmosphere and attitude to clinical methods among
‘conventional’ academics. Ideally, such a person will be on the board or
committee of the clinic(s) and be politically connected to both the Attorney-
General and a community-minded lawyer on the opposition front bench, at least
at state or territory level. In this manner, over several review cycles, the
ascendancy of clinical methodology will increasingly be in the forefront of
deans’ consciousness and ultimately law school advisory boards.
Some clinical programs have never been formally reviewed, but evaluation
of all programs is highly likely with time. Preparation for the first formal review
is important, and the best preparation is a mock or internal review, managed by
the clinical director. Before the issue is raised by others, it is advisable for all
programs to dry run some of the likely issues of cost, scope of operation and
quality delivery with clinical staff and students. Key staff should be encouraged
to assess themselves against external standards — for example, those the 2007
Carnegie Foundation Report into legal education considered to be best practice,
16
and those in the CLEA Best Practices Report,
17
which provides an extremely
useful set of best practice standards. This mock review does not have to be
expensive or time consuming. One strategy is to invite an external (even
overseas or interstate) clinical colleague who might be willing to visit the law
school. Expense is always a problem in clinical programs, but this reality need
not prevent a mock review. With proper planning, clinical colleagues will often
be willing to spend some time with interstate or even international peers in
exchange for informal home accommodation over a couple of weeks. They can
be asked to meet staff and students, likely critics and other stakeholders in order
to help identify any significant deficiencies that might be located in a more
formal review process. A brief report from such friendly critics will be
invaluable. The opportunity at a later date to produce such a report to the review
committee, and to demonstrate pre-emptive remedies to the structures, policies
and teaching deficiencies that are so identified, will not only impress the
committee but add immeasurably to the confidence and morale of clinical staff
in the lead-up to the external review.
However, the process of a formal review is still unlikely to be smooth,
because such exercises are not always undertaken for comprehensive reasons
and communication is frequently flawed, even in well-run law schools. The
arrival of a new dean is always a time of at least some change, and since deans
are often appointed on five-year contracts, a new dean can coincide with the
return of the review cycle of the clinical program, or lead to a reassessment of
the cycle itself. New leadership also tends to coincide with new structures. It is
16
Sullivan (2007). Many of these standards strongly emphasise the importance of clinical and
ethics/ professionalism methodologies in the context of an integrated, pervasive legal
education.
17
Stuckey (2007).
58
GRIFFITH LAW REVIEW (2008) VOL 17 NO 1
now increasingly common for law schools to be merged for cost-saving reasons
into larger faculties or schools with executive deans overseeing their operations.
When these events occur, underlying law school agendas can change quite
suddenly, and the pressure from deans, executive or otherwise to streamline
programs perceived to be expensive can be intense. Marked changes of direction
can occur internally also — for example, when new key associate deans are
appointed or significant complaints seem to appear almost overnight. In
summary, while clinical programs by their nature are desired by the profession,
praised by alumni and demanded by students — in fact, are an obvious jewel in
the law school crown — they are commonly also not intrinsically understood by
conventional teaching colleagues and researchers, and their capacity to enrich
legal education as a whole still appears to require consistent advocacy. The best
such advocacy can come from a credible (external) review committee.
Factors for Examination by Clinical Reviews
At the start of any review, there will probably be an internal faculty debate
about how and what is to be reviewed. Much of this discussion will inevitably
be about the cost of the program (see below), but there will also be
consideration given to the pedagogical issues that deserve attention. This initial
debate will tend to be a ‘one-in, all-in’ discussion and although strategic issues
(for example, the function and role of the program in the whole law school
‘mission’) and performance factors (for example, the cost-benefits received by
the law school from the program) are different and arguably ought to be dealt
with in different review cycles, that is not the way an external review works in
the clinical environment. In the two most recent reviews at Murdoch and
Monash, and in the current review at La Trobe, everything is considered
simultaneously. In this article, therefore, they are treated as the subject of
scrutiny within one whole all-encompassing review.
Fundamental Questions
A clinical review provides an excellent opportunity to focus on questions and
issues fundamental to the aims and objectives of the clinic. Clinic directors and
staff can seize the initiative here and allow cost-efficiency discussions to be
balanced by a more holistic and positive examination of the numerous policy
debates that ought to surface before and during a review. Essential issues such
as the educational objectives of the program, assessment criteria and the way
legal ethical issues are handled can be re-visited with the aim of providing a
more robust pedagogy. The basic questions that affect the raison d’être of the
clinical unit should be raised with the law school, stakeholders and with clinical
teaching and administrative support staff, including:
What are the objectives of the clinical unit? Are they still integral to the
way the program is being taught and should they be revised? Grimes points
out that the stated objectives of the program are important as they inform
the outcomes which will be assessed by the institution.
18
As such, they will
18
Grimes (2004), p 14.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
59
be the yardstick by which the pedagogical results of the clinic are being
measured and thus must match the outcomes which the clinical teachers
believe are relevant and important. The importance of setting clear
objectives cannot be overstated, and again clinicians can measure the clarity
of their unit’s objectives against an external standard such as those
described in the CLEA Best Practice Report.
19
Can the opportunities that the review provides be used to investigate the
intersection of skills, ‘black letter’ law, values awareness
20
and ethics that
take place in the clinic? Is the clinic simply focusing on, for example, ‘best
practice’ or conduct rules for how to deal with clients, or is it delving
further into the rationale and philosophies behind these practices and asking
whether they are relevant, appropriate and pedagogically sound for their
particular clientele?
If part of the clinic’s focus is on ‘acting like a lawyer’, what kinds of
lawyers are being modelled to students by the clinical staff? Are all
supervisory staff modelling the same kind of lawyer?
Are the clinical staff in agreement as to how to deal with the needs of
clients vis-a-vis the needs of students? If not, are the differences indicative
of disabling pedagogical conflict within the clinic?
Does the clinic differentiate between the teaching of different types of
skills? Is more importance ascribed to teaching practical skills such as
interviewing, negotiation and advocacy and less on the more intangible
skills such as research, communication and problem-solving? Does the
clinical staff ascribe more value to one over the other? If so, is this
appropriate?
Do the assessment criteria match up with the published educational
objectives of the unit, and do they need to be revised?
These fundamental questions scratch the surface of the many issues that
can be raised and dealt with in the process of a clinical review — questions
which are essential to the future of the clinic and are just as important (in fact,
ultimately more so) than issues of budgeting. But cost will always be at the top
of the individual list of issues, if for no other reason than that deans influence
review agendas more than anyone else.
Program Cost
Faculty reviews of clinical programs cannot help but fail to prioritise ways and
means of reducing cost. With staff:student ratios in clinical programs exceeding
those of conventional law lectures, contemporary law deans are role-averse to
clinical expansion and often need to be reassured by a review report that
existing programs are efficiently delivered — that is, for the least possible cost.
19
Stuckey (2007), pp 188–93.
20
‘Values awareness’ is intended here to refer to the ability of a law student or lawyer to identify
which personal values habitually underlie their world-view. See generally Evans (2006),
pp 128–30.
60
GRIFFITH LAW REVIEW (2008) VOL 17 NO 1
Recent experience bears this out. Murdoch University has undertaken a clinical
review recently, and now so has Monash. Both were instigated as cost-saving
strategies, alongside assessments of pedagogical objectives. Until legal
education improves its band funding under the federal tertiary education
formula, it is inevitable that all clinical reviews will have such dual concerns. It
is therefore important for clinical directors to be mindful of program costs and
the ratio of such costs to student numbers, in order to prepare thoroughly for
each review cycle. Since the absolute level of cost in all courses will always rise
because of some level of inflation, it is important for the clinic to point out to
the review committee that the fairer comparison is the rate of increase in cost
per clinical student as between review cycles, compared with the rate of increase
in cost per non-clinical student over the same period.
Even where the cost ratio of a clinical program is rising compared with
non-clinical courses as between cycles, clinical reviews ought to be encouraged
to examine enhanced collateral outcomes as the critical part of any final
conclusion about overall efficiency. For example, if a law school is able,
because of its clinical infrastructure connections to a community legal centre, to
negotiate priority access for its students to volunteer in (non-clinical) places in
that centre, that strategy will increase student satisfaction and the social
accountability credentials of the law school in a manner that helps to justify the
cost of that infrastructure. Similarly, where a clinical director has found it
possible to involve ‘conventional’ teachers in the clinical program (and clinical
teachers in the teaching of conventional subjects), and to deepen the experience
of those teachers accordingly, the gains in law school staff development will
often be highly regarded by the law school. These less obvious advantages of a
well-run clinical program will sometimes be accumulating without conscious
intent, but preparation for a clinical review involves staff and current students
assessing the possible extended clinical outputs in order to enumerate such
factors to put to a review committee as a part of a complete cost-benefit
assessment of the program.
Pedagogical Issues
Level of Student Responsibility
The issue of student professional responsibility is a fundamental pedagogical
issue because it appears to be a central marker of difference between the most
established Australian clinical programs. It is therefore important that any
review consider the issue carefully because of naturally differing opinions as to
whether high levels of student responsibility are important for clinical learning.
There is a credible argument that the most valuable programs are those which
place significant operational responsibility in the hands of students, because that
level of trust encourages their learning more effectively than any other
strategy.
21
But ‘operational responsibility’ is understood differently in different
21
Monash students are, within a few weeks of commencing their trimester, trusted to see clients
on their own and, after consultation with their supervisor, to provide advice to their clients on
the same basis. Over 30 years at Monash, this model of student responsibility has proved to be
effective in developing respect for clients, increased student confidence and the essential
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
61
programs. While almost all clinics intend this phrase to legitimate students
delivery of advice to clients in the absence of a supervisor (subject, of course, to
prior discussion between student and supervisor as to the advice to be given),
22
the University of New South Wales (UNSW) program at Kingsford Legal
Centre takes a different attitude. At Kingsford, while students do everything
else, they have not been and are not entrusted with delivering initial advice to
clients unaccompanied.
23
The issue is important in a review because of the
opportunity provided by the review to change course, if the arguments for
change appear convincing to the external reviewers. So also with a subsidiary
debate as to which approach is best or practical from competent client service
24
and financial efficiency
25
perspectives. While these discussions are important for
a larger study, for present purposes there is no need to try to define what is
correct or appropriate for all programs. It is sufficient to suggest that levels of
student responsibility for clients’ matters and cases are appropriate to include
among those matters which each clinical review ought to examine. Individual
clinical reviews, conducted thoroughly, will likely reach their own conclusions
on each discussion.
Technical Objectives Versus Social Change
A discussion occasionally recurs in relation to the value of expanding clinical
curricula beyond a limited emphasis on practical or technical skills to include
student consciousness of social justice and the relevance of socio-legal political
advocacy to the welfare of their clients as individuals and as a part of a wider
group.
26
This discussion, when it occurs, extends well beyond the threshold
question of the inclusion of legal ethics and professional responsibility material,
which is now generally well accepted, but extends to the propriety of clinical
seminar content which raises major questions of post-liberal legal education,
such as the deadening influence of modern law school on lawyers’ awareness of
and concern for justice priorities,
27
the role of law (via the rule of law) as a
educational outcome of rapid but sustained and comprehensive student learning. The Monash
clinics have a solid profile in the Victorian profession with over 1500 graduates, many of
whom have gone on to build or teach in other clinical programs in other law schools. To this
extent, there is evidence that operational responsibility by students for their clients’ matters is
effective. See further Gundlach (2006–07); Batt and Katz (2003–04); Conference Transcript
(1995–96).
22
Giddings (2003), p 15. Note that Giddings does not specifically comment here on the merits of
student advice-giving, but it is significant that the program which he oversees follows the
Monash model on this issue.
23
See n 22.
24
Rice alludes to this issue as a key factor in the UNSW decision to keep supervisors in
(physically) close control of initial advice to clients: ‘Clinical teachers will remain acutely
conscious of their professional and legal responsibilities to the clients and to society for the
operation of an effective and capable legal practice.’ See Rice (1996), p 62.
25
See Moliterno (1996); Laser (1992).
26
See Carle (2005); Evans (1999).
27
See, for example, Burridge (2007).
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GRIFFITH LAW REVIEW (2008) VOL 17 NO 1
legitimiser of social irresponsibility and inequality,
28
and even the possibilities
for advocacy against systemic subordination.
29
This debate is not new. Rice referred approvingly in 1991 to the critical
advantage of placing a clinic within the social laboratory of a community legal
centre:
a legal centre will introduce to students, not for the first time in their
studies, but in the most intense fashion, the need to learn law critically, to
see a lawyer’s role in an inherently conservative system and to analyse
it.
30
Champions of the critical legal studies movement
31
and numerous legal
philosophers have sought a critical equality for decades,
32
but it has not been a
noticeably strong or spirited discussion within Australian clinical legal
education,
33
particularly as law schools’ consciousness of social justice issues
has appeared to atrophy over the last 10–15 years. There is, however, new
optimism in the social psyche of the nation,
34
and it is possible that law schools,
as evident in the renewed interest of law deans in pro bono contributions by law
students and clinical programs per se,
35
may be beginning to recover some of the
concern for social justice in their curricula. If that is correct, then the extent to
which a clinical program can — and arguably ought to — be a great deal more
than a skills course will not just be important to a review as a stand-alone issue,
but as a fundamental marker of the law school’s ‘brand’. If, in the context of any
one law school, the issue of identity is more than a marketing exercise,
consideration of clinical experience as a values-formation strategy ought to be
among the critical issues for a program to consider in its preparation for
evaluation.
The Teaching of Skills: Client Problem Driven or Simulated and Modular?
One of the ‘live issues’ which a clinical review presents is the opportunity to
investigate the assumption that a ‘problem-first’ approach is a useful pedagogy.
28
See, for example, Veitch (2007); Noone (2006).
29
Lopez in Carle (2005), pp 187–200.
30
Rice (1996), p 52.
31
See, for example, Kennedy (2004).
32
Consider, for example, Dworkin (1986).
33
Copeland (2003), from the Murdoch clinical program, situated at the SCALES clinic in
Rockingham, Western Australia, wrote assertively of the advantages of placing a clinic inside
a community legal centre because of the political opportunities for social change; see also
Evans (1999), but otherwise Australian scholarship on this aspect of clinical programs has
been limited.
34
See, for example, Manne (2008).
35
The Committee of Australian Law Deans (CALD) is in discussion with the National Pro Bono
Resource Centre (NPBRC) with a view to encouraging law schools and students to participate
more fully in pro bono programs. Personal communication by author with John Corker,
Director, NPBRC, 26 February 2008.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
63
For many clinical teachers, this assumption is inherent in the delivery of a
clinical program. That is, clinical teachers often have an intrinsic belief that a
student will learn certain skills simply by seeing a real client with a legal
problem, and will then develop further skills from having to find a solution to
that problem ‘on the run’. There is evidence that many things are learned in this
manner,
36
but this ‘osmotic’ exposure model may not necessarily be the best way
to learn lawyering skills and should be put to the test. Bergman argues that
clinicians simply assume that this form of clinical training affects students’
abilities to practise law in a positive fashion.
37
He questions this approach on the
basis that the problem-first approach does not provide repeat or properly
observable opportunities for students to engage in specific lawyering activities,
and thus increase their skill base in those particular areas. He asserts, in terms
that almost brook no argument, that simulation provides a better base for the
repetitive process that is required for effective skills development.
38
Accordingly, Bergman advocates a ‘lawyering skills’ pedagogy in which
students have the opportunity to practise particular discrete lawyering skills over
a range of practice areas in order to sharpen their capacity.
39
Clinicians can use a
review to investigate which pedagogy is preferable because this issue is one at
the heart of the clinic’s educational purposes.
It is worth asking whether it is more beneficial for students to be taught
legal skills on an ad hoc, as needed basis — that is, raised by the issues with
which clients present — or whether it is more valuable for students to ‘sign up’
to learn particular skills in discrete modules, so that the matters that clients
present with are then filtered and chosen according to whether those cases will
assist the students’ development in those particular skills.
If a ‘selected skills’ rather than a ‘problem-first’ approach is taken, the
review will need to consider how this choice affects the issue of professional
responsibility. Bergman argues that ‘the superior ability of problem-first courses
to develop professional responsibility is doubtful’,
40
and that simulation-based
activities can just as well promote a sense of professional responsibility.
41
This
stance appears to treat simulated and live-client work as pedagogical equals.
Many clinical scholars would not agree with Bergman’s position;
42
however, it is
nevertheless valid, in the setting of the particular program under review, to
challenge the assumption that live-client work is inherently superior for skills
teaching and in inculcating a sense of professional responsibility.
36
Sylvester (2004); Stuckey (2007), Ch 5.
37
Bergman (2003), p 113. Bergman, however, teaches in a program (at UCLA) that has been
well known for its position that simulated rather than ‘live’ clients provides the valid and
sufficient clinical teaching process. While UCLA now provides both simulated and live-client
options, the roots of its earlier preference for simulated teaching still dominate the mix of its
clinical offerings. See UCLA, www.law.ucla.edu/home/index.asp?page=1731.
38
Bergman (2003), p 116.
39
See n 38.
40
Bergman (2003), p 117.
41
Bergman (2003), p 118.
42
See Brayne (1998), Ch 5; Juergens (1994); Bloch (1997); Genty (2000); Maranville (2000).
64
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Similarly, many clinical courses run a seminar or tutorial program
alongside the live-client work in order to support and expand the legal skills
learnt in the clinical environment. Again, a review is a good time to reassess
such seminars, and to ask whether they enhance the published objectives of the
program. If they do not, either the program objectives or its content must be
altered. An evaluation should take place of both the quality and range of content
in student seminar programs and the quality of delivery methods, as well as the
levels of skill of those delivering clinical seminars, as the teaching skill set
involved appears to differ substantially from those of teachers with conventional
academic backgrounds. Further, if the seminar or tutorial program is attempting
to raise issues of ethical awareness or professional responsibility (and if it is not,
that is in itself an issue to review), are these skills really being advanced or is
the clinic merely paying lip-service to these concepts by raising them in a
peremptory manner? Arguably, values awareness and professional conduct
cannot be taught in one seminar or tutorial — many clinical scholars would
argue that it must be taught pervasively across the entire law school curriculum.
However, this does not absolve the clinician of the responsibility to also provide
a pedagogical basis for tackling ethical issues, especially whilst students are
undertaking the clinical program and these issues are germane.
Student Appearances in Court: Necessary, Noxious or Just Nice?
If the clinic has a court-negotiated protocol that enables students to do ‘real-life’
appearances for clients in local courts, both the pedagogical basis for this
protocol and the cost-benefits to clients require ongoing evaluation. The latter is
especially important, as court advocacy raises heightened issues of student
professional responsibility. This issue has been tackled in the past by
clinicians.
43
It is significant that the Model Standards for Live Client Clinics
published in 2004 by the UK Centre for Legal Education
44
state thatthere is
only one standard ultimately which the clinic can be judged by – the standard
applicable to any competent practising lawyer’.
45
Most clinicians would find
themselves in agreement with this statement in relation to a student’s casework,
which can be closely supervised by a practitioner, but student appearances in
court can be a different matter. How does the program ensure a student acts as a
‘competent practising lawyer’ unless there is close supervision of their
performance once a court appearance commences? At least within the office
environment, a supervisor can intervene if an interview is progressing badly or
signal to a student who is struggling with a telephone call. But no matter how
well prepared a student appears, clinicians cannot absolutely ensure competency
once that student rises to address the court. Errors can, of course, be
immediately corrected by a supervisor, but not always anticipated and
forestalled. To a limited extent, students appearing in court require a leap of
faith on the part of both the supervising clinician and the client.
43
See, for example, Campbell (1993); Black (1997); Duquette (1997); Gall Hill (1998); Dickson
(1998).
44
See UKCLE, www.ukcle.ac.uk/research/projects/clinic.html.
45
See n 44, p 3 of 10.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
65
The risks of incompetent student advocacy in court are considered by many
clinicians to be no greater than those of many admitted advocates, because
students almost invariably bring great dedication to the tasks of preparation for
and presentation of their appearances.
46
But the risks that exist can be reduced by
skills-based seminar and tutorial attendances in the art of advocacy, and by
creating and following strict protocols about the kind of matter that is acceptable
and the sort of student who can participate. A review is an excellent opportunity
to revisit these protocols and ask whether they reduce the risks of incompetence
on behalf of the students and, further, whether they ensure the clients understand
what they are agreeing to when accepting a student as their advocate. Further, it
may be worthwhile investigating a staged protocol requiring incremental
demonstration of skill development in advocacy, starting with simulations. In
this way, perhaps students would have to first show a level of proficiency in a
simulated environment before being permitted to advocate on behalf of a real
client.
The pedagogical objectives of student appearances should also be
examined. The fundamental question of ‘What are students learning and what
value is imparted?’ must be asked in relation to the appearance program.
Clinicians must ask themselves whether the same skills could be learnt from
demonstration and simulation (which would certainly eliminate any risks of
accusations of incompetence or negligence from clients), or whether student
advocacy is intended to teach more than simply skills? Arguably, there are
reasons over and above the mere teaching of persuasive skills inherent in
students appearing for clients in court. In a UK study of recently qualified
solicitors which was carried out in 2001/02, many participants enunciated the
view that the law degrees provided them with basic legal skills, but that their
competence to practise would have been increased by applying the law in
practical situations.
47
A participant in this study also pointed out that one of the
problems with legal education at the undergraduate level is that it does not
integrate very well with subsequent stages of a professional career.
48
This is
certainly not a new complaint, and has been the subject of other scholarship.
49
Due in part to the non-practising destinations of many — perhaps half —
of Australian law students,
50
there is much in undergraduate legal education that
is thought about and taught as though it is a discrete and open-ended stage in a
person’s legal formation, rather than being perceived as preparation for legal
practice. Of course, the objectives of a truly liberal, non-vocational
undergraduate education cannot be dismissed,
51
but if we perceive legal
46
Campbell (1993); Dickson (1998).
47
Boon et al (2007).
48
Boon et al (2007), p 182.
49
See, for example, Martin et al (1994–95).
50
See Vignaendra (1998).
51
The self-described ‘Melbourne Model’, introduced by the University of Melbourne across all
disciplines, commenced in 2008 with three disciplines including law. The Melbourne Law
School is in transition to a fully postgraduate qualification. See Melbourne Law School,
www.law.unimelb.edu.au/go/about-us/message-from-the-dean/index.cfm.
66
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education as a continuum and are prepared to accept that, as legal professionals,
we are engaged in lifelong learning, then arguably undergraduate student
advocacy delivered as a part of an optional clinical program would appear to go
some way towards assisting in the transition. Student court appearances offer
the potential to strengthen a core objective of legal education: skilled advocacy.
When a student is standing in court presenting information or an argument on
behalf of a client, that person is in the process of evolution towards the
‘practitioner stage’ of their legal education. They are intensively engaged in the
development of skills, in understanding how to behave ethically as an advocate
and fundamentally in assisting not just the advancement of justice, but their own
visceral recognition that they have an actual role to play in achieving that goal.
If clinicians comprehend legal education in those terms, then a student
appearance program is much more than skills education, and the protocols
which are in place to support it need to be tailored accordingly. Within the
review — and without minimising the operational risks described above — the
impact of the student appearance program on the fundamental educative mission
of the law school needs to be conveyed to all stakeholders in the strongest
possible terms, and supported by appropriate alumni presentations.
General Delivery or Specialist Services?
Finally, still with a skills teaching focus, a review provides an appropriate time
for the clinic to explore the mix between generalist and specialist clinical
programs on offer and the protocols of student progression (if any) from general
to specialist experience. If the faculty offers a specialist clinic, what is the
pedagogic rationale for doing so? The response — that the specialist clinic
develops and consolidates knowledge and allows student learning to mature
may be correct but not necessarily sufficient in a cash-strapped academic
environment. Some conventional teaching colleagues will ask why limited
resources must be allocated to a follow-up specialist clinic, entry to which might
be open only to students who have already acquired basic skills from a
generalised clinical exposure, and might therefore handle particularly
demanding scenarios in a specialised environment. Presumably, while the
provision to students of a richer skill set and a deeper and more comprehensive
milieu in which to practise those skills is important, it will often be useful to
point out that the benefit to the law school conducting a specialist clinic is also
in the community engagement: the provision of a useful and much-needed
resource for the community (a family law clinic immediately comes to mind).
Community service is increasingly a powerful cooperating reason for university
educational activity — indeed, in the acceptability of legal professionalism to
the public at large — and this reality can be stated with growing confidence.
52
Again it must be asked, keeping in mind Bergman’s criticisms discussed
above,
53
whether a specialist clinic is the appropriate vehicle to deepen and
52
See, for example, University World News, 24 February 2008 at
www.universityworlkdnews.com.
53
See n 37.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
67
expand students’ skills. The program must, despite these wider realities, be
prepared to ask itself whether there are better and less-resource intensive ways
of enhancing lawyers’ preparation for practice and acceptance of professional
responsibilities. Certainly, there has been scholarship that suggests that
specialist training in law school is both appropriate and desirable in an ever-
increasing climate of professional specialisation.
54
Student progression through a clinical program is also a fit topic for inquiry
and review. If it is decided that specialist clinics are pedagogically sound, then
how are they to be accessed by the students? Will successful completion of a
period of time at the generalist clinic be a prerequisite or, for example, can a
student who is particularly keen on environmental law enrol in the relevant
specialist clinic without working first as a generalist? If clinical staff are content
to allow this to occur, then the pedagogic justification of improving and
extending skills already learned is clearly no longer available. Direct entry into a
specialist clinic without first having successfully completed the generalist
clinical program will require the specialist clinic to have different pedagogic
aims. These aims need to be considered and determined by clinicians and then
promulgated to faculty and students (and assessment in the specialist clinic must
also reflect these aims). Further, if there are protocols for enrolling in a
specialist clinic, are they generally understood by clinical staff and students and,
more importantly, are they being followed? It is pointless to have a carefully
thought-out set of protocols which determine involvement in the specialist
clinical unit and then not to adhere to them — this undermines the credibility of
the process to the faculty, students and, consequently, to the clinical clients who
find that their student adviser is not up to the task.
A clinical review must look at each of these fundamental pedagogical
issues. They are interwoven in the very rationale for operating clinics — both
generalist and specialist — and they lead to the next issue which should also be
explored by the review: the difference between thinking and acting. If
conventional law teaching is often seen as assisting students to ‘think like a
lawyer’,
55
clinical exposure has been seen in terms of experiential learning —
that is, teaching students to ‘act like lawyers as well as just ‘think’ like them. If
so, what sort of lawyer are students meant to act like, and once this is decided,
how do clinicians teach this behaviour? Examining the choices made here and
how they are implemented ought to be considered in a review against the overall
aims and objectives of the program.
What is Acting Like a Lawyer?
A review provides an opportunity for a clinical program to decide what exactly
are the important skills that students need. Are they merely limited, technical
legal capacities or do clinicians have an overriding responsibility to provide
students with a developed set of managerial and office skills, let alone a sense of
social responsibility, which will stand them in good stead for the various paths
54
See Rhode (2000), p 190.
55
Sullivan (2007), p 5.
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their professional futures may take? Focusing on traditional legal skills such as
advocacy, negotiation and interviewing technique is, of course, appropriate, but
a seminar program which supports students’ clinical experience can also focus
on the skills required to ‘act like a lawyer’
56
that is, the management skills
which teach students how to organise time, people and cases.
57
It is clearly
arguable that clinicians’ responsibilities extend well beyond the teaching of
mere technical skills. Legal clinics can, and should, be more holistic in their
approach to legal education and prepare students with skills that can be
transported both inside as well as beyond the legal profession. Although a
review could theoretically conclude that limited technical skills shall be the only
set imparted to students, that result is unlikely. In Boon and Whyte’s 2002
study,
58
law graduates were confident about their various proposals to improve
legal education through a stronger focus on generic vocational and transactional
skills and less concentration on detailed legal content.
59
Ethics and Professional Responsibility
How vital is the teaching of legal ethics to the clinic? An affirmative answer is
now the norm, not just because clinical experience can promote better ethical
consciousness, but more importantly because legal education as a discipline
suffers from a lack of effective techniques to inculcate ethical sensitivity in
students.
60
In fact, the more important question nowadays is how legal ethics and
professional responsibility ought to be taught within the clinic? One Australian
program has a clear answer to this question. Noone and Dickson describe the La
Trobe clinical program they teach as:
not a clinical legal education program that by necessity deals with
professional conduct. This is a professional responsibility course where
the students are involved in a clinical component.
61
The centrality of teaching legal ethics and professional responsibility is not
in doubt for those authors. Nevertheless, review stakeholders and clinicians
must decide whether ethics and professional responsibility are an accessory or
by-product to the aims of clinical legal education, or whether they are part of the
central pedagogic objective of such programs. If the latter, what conception of
professional responsibility is practised?
56
The clinical unit ‘Professional Practice’ at Monash University Law Faculty, for example,
carries a mark (out of 40) for ‘Follow-up Work’ which implies, but does not specify, these
skills.
57
Boon et al (2007), p 185. These skills are, in fact, often implicit in both the focus of the clinic
as communicated to the students and in the marking regime.
58
Boon et al (2007).
59
Boon et al (2007), pp 188–89.
60
See Evans et al (2006); Burridge (2007). See also the current Carrick Institute discipline-based
initiative in law, which is considering how best to improve the teaching of professionalism and
legal ethics in Australian law schools, n 10.
61
Dickson et al (2001), p 142.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
69
Perhaps there is an expectation that professional responsibility, however
that is conceived, will simply emerge spontaneously among students by virtue
of their exposure to the clinical environment. The values of supervisors will
transmit to their students to some degree, and these values may be exemplary,
but if there is no evidence of such osmosis, and if it is considered an important
aspect of the educational aims of law schools, perhaps the work day at the clinic
needs to be restructured to provide time for introspection, discussion and
instruction in these areas, as occurs in the La Trobe clinical program.
62
Discussion with students of their ethical roles and options is implicit in this
process. If, for example, a student is determined to pursue a position of zealous
advocacy on behalf of a client rather than prioritise a duty to be frank in all their
dealings with a court — or even to concentrate on shepherding the client
throughout the process safely without too much regard to what is said to the
other party or court
63
there will be considerable challenges for the supervisor
in managing that student’s professional development. If most students in the
clinic engage with professional responsibility in a similarly intimate manner, a
reduction in the numbers of clients who are serviced may be required in order to
cope with the time spent on supervision, with consequences for client and
community expectations and even funding. So the implications of a thorough
integration of professional responsibility are not insignificant. La Trobe makes a
virtue out of this process, and arguably it has the right priority, but each review
will doubtless come to its own conclusions on this issue.
As well as the opportunity to teach systems of professional ethics, each
clinic has a unique ability (many would say a responsibility as well as the best
opportunity) to focus time and energy on the issue of training students in all
areas of professional development.
64
It has been noted elsewhere that
professional development must be understood by both clinicians and students
alike to form a substantial aspect of the clinical curriculum.
65
Often professional
development is implicit in the structure of the clinic, but it can be made more
explicit in formal educational opportunities (such as tutorials and seminars) and
in the marking regime. Students can come away from clinic with a real
understanding of the ethic of excellence which is desirable in a practitioner and,
since clinical experience provides an opportunity to grow real confidence in
students’ dealings with their clients, lawyers and other professionals, it can
entrench that ethic if experiences with these groups are mediated and talked
through with mentoring supervisors.
62
Dickson et al (2001), p 140.
63
One of the approaches to ethical legal practice contemplates lawyer care of and for the client
as a priority duty. See Parker et al (2007), p 31.
64
Chavkin (2002). Chavkin’s text enumerates the full range of developmental objectives for
students within clinical programs.
65
Batt and Katz (2003–04), p 607.
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Quality in Supervision
Of course, nothing can be taken for granted here. As with all other clinical
delivery issues, the quality of mentoring and supervision (and the mechanisms
by which supervisors’ quality is nurtured and assessed) is a key ingredient in the
quality of the whole program. Indeed, the American Association of Law
Schools’ Report on the In-House Clinic emphasised the paramount importance
of quality supervision and emphasised the need to control student/staff ratios.
66
This issue will be dealt with later. Quality in clinical supervision is not
automatically measurable in the same way as quality in conventional legal
teaching. Review thoroughness requires that these less tangible factors are
considered along with that of formal structure. Thus stakeholders and clinicians
can and ought to take the opportunity of a review to consider how this
demanding concept of overall excellence in the context of professional
responsibility is communicated to students. Are the supervisor’s value set,
approach and style sufficient to provide the right role model or should the ideals
of professionalism also be taught in a modular format and somewhat more
unequivocally than the complexities and compromises of an ongoing case will
allow? These issues are, again, up for examination in any comprehensive
evaluation of a clinical program.
Clinical Assessment
The issues surrounding assessment are myriad and have been the subject of
much debate.
67
A review should revisit these issues with confidence. The central
question is whether students’ clinical performance is best assessed on a pass–fail
basis or by way of a graded assessment?
A number of arguments have been put forward as to why grading in clinic
may not be appropriate,
68
including the difficulty of determining how well
students are exercising skills that they are just beginning to learn (though this
might also be true of all academic assessment); the problems with making
comparisons amongst students who may be doing very different work based on
the variations in caseload and type (although again, legal educators are able to
mark students in doctrinal skills-based subjects, such as mooting or drafting,
who work with different simulated scenarios, accommodating a lack of balance
in problem type and the amount of effort required to complete the task); the
difficulties in grading student teams and the potential interference to risk-taking
(and thus creative) behaviour caused by promoting a graded environment where
students fear losing marks.
69
There is some merit to these arguments, although
students are usually principally motivated within a clinic by the nature of the
work itself, not essentially by the possibility of receiving good marks. It is
doubtful that a graded marking regime has the effect of de-motivating or
discouraging students from doing their best work when their clients’ livelihoods
66
American Association of Law Schools (1992).
67
See Rice, (1996), pp 71–79; Hyams (2006).
68
Schrag (1997), p 202.
69
Hyams (2006), p 88.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
71
and sometimes freedom are at stake. Further, students often perceive clinical
experience as a ‘testing ground’ for their ability to become effective lawyers
once they graduate. This last factor provides an incentive to support clients and
achieve good outcomes for them — a motive which has rather less to do with
the presence of graded marking.
It has also been compellingly argued that grading does provide motivation
for students to achieve, and can encourage their desire to act in a professional
manner.
70
Grading may act as a way of recognising and rewarding students for
the often considerable labour, time and effort they put into their clinical work.
71
From a student point of view, not to grade their performance when most if not
all of the remainder of their academic performance attracts a grade is potentially
pernicious.
Again, these issues are not merely protocols or ‘window dressing’, but go
to the fundamental aims of the clinic and the law school. Difficult sub-questions
must be tackled. For example, if clinicians believe that professional
responsibility is an important pedagogical aim of the clinical experience, can
such an attribute be measured and consequently scored in a graded assessment
regime?
72
If the clinic utilises a pass–fail system of marking, should a student’s
inability to demonstrate an adequate level of professional responsibility result in
a fail? The answer must be yes if the concept is important enough to rank at the
centre of clinical competence, but are clinicians and wider faculty ready for the
professional scrutiny that this decision might entail? And although it is a
reductive point, even the decision to pass or fail is essentially categorical and of
necessity involves a grade, so it is impossible to avoid the grading/pass–fail
dilemma in the review context as anywhere.
The documentation associated with the assessment regime needs to be
carefully considered and a determination made about whether there is
consistency and transparency in the marking process. The documentation that
supports the marking regime must be scrutinised carefully, with clarity
consistency, fairness and reliability uppermost in mind. The published learning
goals of the unit should also be considered carefully in order to ensure that they
are properly reflected in the marking criteria which are used by the clinic. All
marking should be supported by appropriate records, which all teachers in the
clinic use in a consistent manner. Clinical programs, which are often
marginalised to some extent within their faculties, cannot afford to be subjected
to allegations of slipshod assessment regimes, either by students or other
members of the faculty. A review requires a tightening of any casual or sloppy
practices and a chance to develop a set of thorough marking protocols.
70
Brustin and Chavkin (1997), p 306.
71
Hyams (2006), p 88.
72
To date, no proven psychological scale for this task has been developed, though such scales
are in development and are progressively being introduced to assess similar attributes in, for
example, managers, allied health staff and clergy. However, research by Evans has shown that
the legal profession would be ready to accept such a scale if it could be demonstrated as
accurate and if the regulatory environment were likely to move down a pre-emptive path. See
Evans (2007).
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Pro Bono Credits
The National Pro Bono Resource Centre
73
is currently lobbying the Committee
of Australian Law Deans (CALD) to introduce a protocol for all law schools,
which encourages them to provide, for each student who desires it, a pro bono
opportunity to deliver services to the community in some manner during their
undergraduate law degree. This initiative, if successful, will marginally
encourage law schools to provide clinical experiences because those
opportunities will qualify as a pro bono experience for each participating
student.
74
To the extent that a law school’s clinical program is comprehensive,
includes volunteer-staffed and supervised sub-clinics and reaches a significant
number of students, there is every reason for clinical directors to promote to a
review committee the ability of the clinical program to assist the law school to
achieve such pro bono expectations. In anticipation of a review and for this
reason, clinical directors would be well advised to promote volunteer access to
their programs where resources allow.
Teamwork
The pedagogical aims inherent in clinical teams have come under some
scrutiny,
75
and continue to be debated amongst clinicians. Australian law schools
have experienced some obstacles in encouraging student teaming in the past,
76
but some US commentators express satisfaction with the team process in
assisting students to learn professional autonomy
77
and to enhance students
abilities to develop a more thorough comprehension of their client’s
experiences.
78
The UK Model Standards for Live Client Clinics require a minimum of two
students for each client matter
79
in order to ‘provide protection for students and
provide continuity’.
80
There are no equivalent model standards in Australia, and
certainly many Australian programs are apparently comfortable with one student
per client matter, depending on supervision ratios. Clinicians in this country
may need to engage in a lively debate about the basis for creating student teams.
Is the aim to better service the client or to teach students collaborative skills? Is
there any longer any pressing justification for measuring individual student
clinical performance, given that legal service delivery is increasingly a team
event? There may be space to achieve both aims, providing the benefits of
creating student teams are measured against the extra time and effort being put
into devising appropriate pairings, troubleshooting any difficulties arising
between team members and assessing their individual contribution to working in
73
See NPBRC, www.nationalprobono.org.au.
74
Personal communication by author with John Corker, Director, NPBRC, 26 February 2008.
75
See Bryant (1993); Chavkin (1994–95).
76
Johnstone (2003), p 373.
77
Bryant (1993), p 460.
78
Chavkin (1994–95), p 213.
79
See n 44, Model Standards for Live Client Clinics, p 6 of 10.
80
See n 44, Model Standards for Live Client Clinics.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
73
a collaborative environment. Alternatively, if the clinic does not use a team
approach, and perhaps does not wish to change its approach, the reasoning
behind their confidence in the status quo should be investigated within the
review.
Supervisor:Student Ratios and Feedback
The matter of proper supervision goes beyond supervisor suitability and training
to one of workload. The issue of the appropriate staff:student ratio should be
raised for its effect on quality supervision, especially in the light of staffing and
funding concerns that undoubtedly will be uppermost on the review agenda.
While both the University of New South Wales and Monash programs
operate with a staff:student ratio of 1:8,
81
the Model Standards for Live Client
Clinics recommends a maximum of 12 students to each supervisor,
82
and this
appears to be the maximum limit also in Australia.
83
This ratio, of course, will be
affected by whether, and how, the clinic utilises student teams and how much is
expected of each supervisor. There is considerable support for the view that the
maximum ratio should be one supervisor to eight students in a clinic in which
students advocate personally for clients in contentious matters,
84
though this
protocol will be a matter for review along with all other performance indicators.
The protocols which set out how regularly supervisors will meet with
individual students, how often staff make themselves generally available to all
students and what sort of feedback students can expect need to be thought about
seriously, written down and made available to the review. To a large extent, the
relationship between supervisors and their students is about managing
expectations and goal-setting
85
prior to the clinical experience commencing.
Because these expectations need to be dealt with consistently amongst
supervisors, the method by which such consistency is achieved ought also to be
available to the review. Inevitably, this inquiry will also involve reviewing the
adequacy and implementation of processes used to ensure quality and
consistency of supervision.
Student feedback norms are a critical quality control issue, and a proper
review will wish to examine them. Thought must be given to how and what sort
of feedback is provided to students and in what setting. If the clinic relies on
group supervision and feedback, then the perceived benefits of this approach
need to be weighed against the lack of personal attention. If individual attention
is provided to students, the question must be asked whether clinicians can
continue to provide the level of attention that each student requires over the
period of the student’s internship in the clinic. It is often deemed appropriate for
students to be progressively ‘cut loose’ from reliance on their supervisor as the
81
See Rice (1996), p 60. Monash has always considered that a 1:8 ratio — that is, two teams of
four students, each supervised by the same supervisor — is optimum for best performance.
82
See n 44, Model Standards for Live Client Clinics, p 3 of 10.
83
Dickson (2004), para 31.
84
Brayne et al (1998), p 127.
85
Batt and Katz (2003–04).
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internship period (and hopefully the students’ level of confidence and
competence) progresses, in order to develop the independence and autonomy
which strengthens their learning and makes them valuable to potential
employers. Where this is the case, a protocol for such progressive detachment
needs to be formulated so that there is consistency amongst supervisors.
Students must be informed and an explanation provided to them as to why a
higher level of autonomy will be expected from them as their internship
progresses.
In addition, there are is a whole range of subtle supervisory issues that
skilled supervisors will attend to, and a review will wish to see how the program
raises these issues for supervisor attention (quite apart from the extent to which
it selects supervisors for their abilities in the first place). Thus clinicians need to
be constantly vigilant to the different ways individual members of their clinical
cohorts will learn and the individual pace of their learning. Attention must be
paid to students’ different level of maturity and their variety of personal
backgrounds and experiences in terms of the way they are supervised and the
expectations placed upon them. The importance of nurturing and rewarding
emotional intelligence in students must be embraced. This concept embraces
personal self-awareness, familiarity with one’s own internal feelings and
emotions, and the capacity to recognise and empathise with others’ feelings.
86
This different way of perceiving appropriate intelligence in students needs to be
accepted by clinicians and form part of their approach to individual students
when providing direction and feedback. Finally, supervisors’ awareness and
acceptance of the professional boundaries between them and their students is far
more critical than in conventional law teaching. Again, there must be agreement
amongst clinicians about these issues in the interests of consistent development
of students’ professional autonomy. The review will wish to see how that
consistency is achieved in practice achieved among clinical supervisors and the
development of a supervision protocol would be valuable here.
Clinic Administration Issues
Staffing
There is much in the clinical literature about the lack of interchange between
‘mainstream’ faculty teaching and clinical supervision,
87
and about the dearth of
career opportunities for those embarking on the clinical career track.
88
This has
become the focus of some debate and discussion amongst Australian clinicians
and their faculties in recent years.
89
Staff selection criteria, staff interchange
between conventional and clinical teaching, clinical staff development programs
and opportunities for staff career enhancement are often among those factors
affecting their work which clinicians feel least able to control. They are
86
James et al (2005).
87
See Bellow (1983); Feldman (1985); Barnhizer (1990); Boswell (1992).
88
See McDiarmid (1990);
Herring (2000);
Haydock (2003);
Tarr (2003).
89
See Giddings (2003), p 24.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
75
therefore important issues to review, in the interests of improving clinical staff
retention. Often external staff are recruited to, and placed in, the clinic without
reference to the incumbents. Sometimes selection criteria (for experienced
clinicians and locum supervisors alike) are the same as those of traditional
‘academic’ positions, and therefore have little relevance to the skills (both
technical and interpersonal) required of a clinical supervisor.
However, clinicians should not pessimistically assume that a clinical
review only poses the question ‘What can we do to you?’ but rather, ‘What can
we do for you?’ Review processes provide a forum for clinical supervisors to air
these concerns to the faculty, and for the review panel to be informed of
perceived inequities between clinicians and their ‘mainstream’ colleagues.
Review deliberations also provide a perfect opportunity for this artificial
division to be dissolved progressively in the affirmative action sense.
Suggestions of clinical training for other academics can be made with the aim of
providing clinical staff with appropriate support from faculty colleagues.
Proposals can be put forward for clinical staff to teach and assist in conventional
legal subjects and courses with the objectives of providing both academic staff
and students with exposure to the work of the clinics and further diminishing
any perceived barriers between clinicians and conventional teachers. It is in the
fertile environment of a review that these issues can be raised with some energy.
They are more likely to receive attention and a sympathetic audience during this
process than if they are simply raised ‘out of the blue’ when the attention of the
faculty is not focused on the clinic.
The manner in which clinicians’ concerns are raised is also most important.
There is no point in clinical teachers simply complaining to the faculty about
career track issues or lack of support. Proposals must be put forward which are
well thought out and are constructively written in a positive fashion so that they
can be seen by the faculty as enhancing the student and staff experience and
adding value to the stature of the law school.
Management
If appropriate complaint-handling codes do not already exist, an imminent
clinical review is a good time to create them in relation to behaviour for staff,
clients and students. Suitable hierarchies need to be in place for appeals against
perceived adverse decisions. Needless to say, client files are to be kept in
accordance with the particular rules relating to professional responsibilities in
the relevant jurisdiction, and systematic and methodical clinical supervision will
need to ensure this is so. Thus the complaint-handling process relating to clients
will be determined by appropriate professional rules. Staff complaint processes
may be governed by individual employment arrangements or by the relevant
industrial awards. Codes must be known to staff, and their applicability
indicated in the clinical staff submission to the review. Generally, issues relating
to student complaints will follow university procedures,
90
but if this is not the
case, the clinic must create and publish its own, well in advance of any review
90
For example, student discipline and issues relating to sexual harassment will usually be
handled by a central university committee.
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process. The important point here is that appropriate complaint handling in the
clinic must be discussed amongst all participants in the clinic, understood,
followed and be seen to be followed when investigated by the review. The
program will expose itself to criticism and suffer from a credibility gap if these
essential management issues are treated in a careless manner.
There are several other management issues which require protocols to be
developed in anticipation of a clinical review. If the clinic accepts volunteers
(for example, in an after-hours casework service), appropriate procedures must
be established to guide how these people interact and work with members of
paid staff and with enrolled clinical students. As volunteers are not paid or
formally assessed, expectations of their performance must be made obvious,
including their level of responsibility for client files and their communication
with other staff. Again, while these expectations ought to be managed by
clinical directors, they also need to be agreed upon by clinical staff, documented
and provided to all volunteers prior to their commencement in the program.
Alumni relationships are a vital resource, especially in a review context
where the faculty as a whole may, for the reasons canvassed above, be
lukewarm about the worth of the clinical experience. Many clinics enjoy very
strong, yet often untapped, alumni support.
91
Alumni often show great goodwill
towards the work of the program, and can be approached in a systematic and
meticulous way to provide ongoing assistance, whether by funding, provision of
pro bono supervisory personnel or by looking favourably upon other clinical
graduates in their employment of new professional staff. Proposals for
developing professional relationships with clinical alumni ought to be very
attractive to a clinical review panel, but such proposals must come from clinical
staff to ensure they are relevant, appropriate and utilise the goodwill in a way
which will directly benefit the program. The way clinical alumni are treated is
unquestionably a management issue for clinical directors. Alumni responsibility
should not be ceded to the faculty or to the university as a potentially compliant
source of funds. Accordingly, anticipation of a review — as with many of these
issues — is an opportunity to create a detailed protocol relating to alumni
interaction.
Finally, the clinic should use the review process to ascertain and strengthen
its position on the demarcation between the governance of the clinic and daily
operational management. Governance is concerned with policy rather than
operations, but many clinics operating inside external agencies such as
community legal centres lose track of the distinction and become difficult to
control, let alone achieve optimum educational and service delivery objectives.
If the clinic has a board of directors, that board needs to come to grips with its
policy deliberation role alone and entirely opt out of management, which is the
exclusive province of the clinical director(s). The review policy documentation
should make it abundantly clear to the review committee that the clinic board is
not a manager. Failure to understand this critical demarcation in roles has led to
91
For example, in the Monash University Faculty of Law’s clinical review held in December
2006, 52 external written submissions in support of the clinics were received by the review
panel.
EVANS AND HYAMS: INDEPENDENT VALUATIONS OF CLINICAL EDUCATION PROGRAMS
77
unnecessary conflict within a number of Australian clinics located within
community legal centres — much of it debilitating for a considerable period of
time. To this end, the board of directors should resist the temptation to try to
manage the work of the clinic on a microscopic level, even if this separation is
in practice difficult to manage, especially if the board has several members who
are also faculty staff. They may feel it is their right (or duty) to assist in the
management of the clinic as in any other sub-department within the faculty. The
review process is an opportunity to reassess the relationship between board and
management, and to ask whether the different roles are understood and agreed
upon by participants. Again, a set of guidelines as to the different functions of
these bodies should be a positive outcome of the review process.
There will inevitably be other emerging issues of clinical legal education
praxis which should be investigated in a review. Arguably, the process of
thinking about and reassessing what each program is trying to achieve should
take place on an ongoing basis, without the external pressures of a review. Other
authors have made excellent suggestions of how clinicians should go about this
task.
92
However, when a review is on the horizon, an opportunity arises to re-
evaluate clinical legal education in some detail in order to be forward looking
and provide suitable support for the future of the clinical program.
Review Process as a Clinical Review Parameter
While the previous sections addressed factors which a clinical review ought to
examine in order to properly support the integration of clinical programs with
the wider law school and enhance their contribution to legal education as a
whole, a review can still be less than effective, and even undermine that
potential if the process via which it is conducted is not carefully managed.
‘Managed’ in this usage does not mean subverted — it is not suggested that a
clinical director should seek to undermine the integrity of a review. Indeed, the
first and major point about process (as reflected in the title of this article) is that
the review must be conducted in such a manner that internal players, be they
clinical staff or other academics, are unable to orchestrate outcomes.
Independence of the Review
Independence in the review process begins with ensuring the independence of
the review personnel, who cannot be employed by the relevant program or
otherwise hold office within it. This point is presumably obvious, but ought to
be stated nonetheless. While the dean will often wish the review to be chaired
by a senior academic from the law school, it may be possible to request that an
external academic be appointed chair of the review committee. If that option is
available, efforts should be made to appoint a senior clinical academic from
another institution. Ideally, the review committee should be three in number and
consist of at least one external clinical teacher. At the very least, it is important
that the clinical director be consulted by the dean regarding the possible
appointees.
92
See Dickson (2004).
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The clinical director should make him or herself available to the review
chair for early discussion, but never insist on that process. Effort should also be
made to ensure remuneration is adequate for external members of the review
committee, sufficient to encourage and persuade them that their own careful
preparation for the review is important to the outcome.
Assessing the Relevance of Established Review Processes
Universities are now highly compliance-conscious institutions. As a part of the
national quality audit process,
93
all have developed protocols, often at central
administration level, which determine how formal faculty, school or
departmental reviews should proceed. Many of these centralised processes are
rich in provisions which ensure natural justice. Although formulated with regard
to the evaluation of large and complex structures such as faculties and schools
(with lots of political consultation inserted to ensure nothing and no one is left
out), rather than smaller-scale reviews of individual programs, they will provide
powerful guidance or leverage to the clinical director in their efforts to set up a
process which allows for enough consultation with all stakeholders, especially
clinical alumni. These protocols could on occasion be more thorough than a law
school would necessarily prefer, but they can be used very effectively to
encourage a Dean to organise the external review appropriately.
Dealing with the (formal) Review Terms of Reference
As all review committees require terms of reference in order to be able to seek
submissions and to report, it is important for clinical directors to try to ensure
that those terms are as wide as possible. Narrow terms of reference usually
evidence a desire for a narrow outcome, often dominated by cost saving. The
best way to ensure breadth of coverage is to put up for consideration such
international standards for clinics as may be current.
94
If the terms of reference
are limited to cost issues, as is possible — and was certainly the case in recent
clinical reviews — a comprehensive and confident submission should be made
by the clinical director to the review committee on a wide front of issues
(regardless of the formal restrictions in the terms of reference), in order to make
it explicitly clear that the review committee risks discredit with stakeholders if it
concentrates on cost and substantially ignores the wider range of issues which
will deal with scope of operation and quality.
Strategic, Supportive Staff Communication
The best preparation for a review begins with a r