Elaine Hall, Northumbria University (UK); Jonny Hall, Northumbria University (UK); Christopher Simmonds, Northumbria University (UK); and Keeley Fletcher, Sheffield Hallam University (UK)

Moderator: Elaine Campbell, Northumbria University (UK)

Clinic Selection, Access and Orientation: What are the Ethical Issues and Who are the Stakeholders?

Elaine Hall/Johnny Hall/Cath Sylvester/Carol Boothby:"To Him That Hath, More Shall Be Given": Ethical Issues Arising from the Selection of Students for Legal Clinic Programmes

In England and Wales there is currently no requirement that students are educated in professional ethics during the academic stages of training. Not only is there no requirement to do so but “the majority of undergraduate law schools persist in doing virtually nothing explicit to assist new entrants to meet the profession’s ethical standards of behavior and, therefore, they are almost totally reliant on what happens at the vocational phase.” (Economides and Rodgers, 2009).

The study of ethics at the taught vocational stage is almost entirely aimed at ensuring compliance with a code of conduct rather than a broader understanding of, and adoption of, professional legal ethical values. While there is the opportunity during the work based vocational stage of training (the Training Contract) to inculcate professional ethical values through relatively close and experienced supervision, the explicit training requirements continue to focus on compliance with the code.

Leaving the teaching of professional ethics and conduct to the vocational stage not only leads to a narrow study of professional conduct, it fails to give students the opportunity to understand the obligations lawyers owe to society as a whole (Hepple, 1996; Economides and Rodgers, 2009). This can be seen not only from the pragmatic support for professionalism perspective but also from the perspective of the richer academic study of the values which shape and inform legal and more generally professional practice (Economides and Rodgers, 2009).

Clinical educators in some jurisdictions claim that involvement in legal clinic teaches advanced professional and situational ethics through the live client experience (Noone and Dickson 2001). It builds on the standard ethical education offered to law students (Kerrigan, 2007 Nicolson 2015) enhancing it experientially and encouraging students to reflect (Nicolson 2008) and critically engage with their ethical position (Kerrigan 2007). In England and Wales on undergraduate programmes it may offer the only explicit introduction to ethical standards of behavior. The first part of this paper will consist of a systematic review of the literature on ethical education through clinic, with a discussion of the underlying theoretical process models used by legal educators to explain the development of ethical awareness, action and reflexivity and the extent to which these models are empirically supported.

The second part of the paper reports on empirical work looking at students' learning trajectories on the four year Masters level qualifying law degree at Northumbria University in the UK. Northumbria is unusual in that our programme has a compulsory clinical element, contrasting with most other universities where clinic is an option or a voluntary programme. Since all our students participate in and are assessed on clinic, we have been able to do a retrospective analysis tracking cohorts from entry, through the various elements of legal education and to their final degree outcome. The focus at Northumbria has been on professional legal ethics. Recent work on inculcating students with the importance of ethical considerations highlighted the potential value of the clinical aspect of the degree, but reported limited success in effectively developing a robust programme of ethical teaching and proposing that this may be in part due to the pressure of assessed subjects squeezing non assessed topics such as ethics out of the curriculum, save where required. As a result, students receive a ‘thread ‘ of professional ethics, with a limited number of lectures, a court report exercise and exposure through their tort, litigation and evidence module but hope of expanding students experiences of ethics in the early years of the degree were not realized, (Sandford-Couch and Bainbridge, 2015). This then potentially placed more reliance on the clinical experience to provide ethical training, experience and reflexivity- fortunately for our students, clinic is currently a compulsory component of this degree.

But if clinic is to be relied on in this way, does this disadvantage certain groups of students? One aspect of the findings is that students who perform in the lower quartiles in the first two years of the degree tend to perform strongly in the clinical elements of the third and fourth years, often raising their grade across the boundary to a higher level.

This strikes us as particularly noteworthy for those programmes who cannot offer clinical opportunities to all their students and who must therefore employ some form of selection. Anecdotal evidence from European and International networks suggests that selection processes often employ measures of prior attainment and the sole or as a significant factor. This is justified as being in the interests of vulnerable clients, who must be served by ‘the best’ students. Our findings suggest that students who do well in academic legal studies are not necessarily ‘the best’ at clinic and that moreover, students from less advantaged backgrounds benefit most from the opportunity that experiential learning in clinic affords. In trying to staff our clinics with ‘the best’ students are we blocking the advancement of those who might serve as well or better?

Moreover, if the legal ethics education of our students is enhanced by clinic experience, should universities provide alternate or compensatory ethical teaching for students who cannot access clinic? Returning to the models developed through the literature review, we consider what critical or catalytic elements of such learning experiences might be.

Christopher Simmonds: A Right Way to Do Things and Doing Things Right?

In the context of clinical legal education a clear focus on ethics is essential.  We are educating students who we hope will go on to form the next generation of lawyers and so they need a comprehensive understanding of the rules that we operate to.  In the 16th and 17th Centuries speeches by the Lord Chief Justice suggested that the conduct of solicitors required them to: 1) Assist the poor and oppressed; 2) Always promote the truth; and 3) Dissuade clients from pursuing unjust cases.  In the modern era, it is perhaps not as easy to say that ethics is merely ‘doing what is right’ and the focus of our ethical codes have shifted more to ensure access to justice as opposed to attempting to define what is ‘right’ or ‘just’ in a given case. That poses challenges for us in clinical legal education, though.  When we come to form clinics to what extent should we comply with our professional codes and to what extent should we follow a moral code?  Should we promote social justice rather than ensure that we allow access to all to our clinics? This paper explores the conflicts that can arise between the social justice aspect of clinic and the professional obligations of lawyers in England and Wales to highlight the challenges teaching ethics through clinical legal education in an adversarial jurisdiction. 

Keeley Fletcher: Ethics and Education - Balancing the Interests of Stakeholders in Clinical Legal Education

Clinical legal education can be effective in developing ethical lawyers but is this to the detriment of other stakeholders? 

The effectiveness of students in providing pro bono legal services can have a significant impact on a range of stakeholders, including; academic institutions, service users and wider society. Whether the impact is a positive one is dependent on maintaining the right balance between the stakeholders. 

This presentation will consider case studies from the Helena Kennedy Centre for International Justice at Sheffield Hallam University focusing on the impact of clinical legal education on stakeholders and on how universities can strike the right balance between potentially conflicting interests.  

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