CLE 2015: Graham Ferris asks …

by Pamela Henderson on 19/06/2015

Can the provision of legal services and legal education conflict when serving the idea of access to justice?

 

Access to justice and unmet legal need is not new and is a problem that most people involved in the law would like to resolve.

Growing up, ‘court’ is when something bad happens to you so ‘access to justice’ is not necessarily recognised as a good thing?  Interesting opening remark, linking to the idea that we relate concepts to our own experience, so if we associate going to court with getting into trouble, why should the man on the street immediately recognise access to justice as a good thing?

Presumably, however, providers of legal services and legal educators both recognise the value of access to justice, so how can they come into conflict with each other?  Graham suggests we care passionately ‘in our quiet and unassuming way’; a typical Graham comment!

Empowerment of students and getting them to care about what they’re doing drives their learning.  Clinical legal education is a remarkably effective tool – a win win – because it ticks the right boxes here.

Can we face a situation where our desire to facilitate access to justice conflicts with what we need to do as legal educators?  How do we respond if this situation arises?  Graham chooses to namedrop Magna Carta here – shame on you Graham, jumping on a media bandwagon!

The Rule of Law is only a reality when it can be relied upon by the powerless against the powerful.  Call the powerful to account by using the leverage of the law, so deny access to justice and you deny the rule of law.  Clinical legal education is one tool in our armoury to leverage the law.

What happens when educational benefits for the student are in conflict with access to the justice for a client?  Graham talks about breaking down the task into chunks, with small groups of students each doing part of the job e.g. interviewing the client, filling in the forms, writing the letters etc.  It’s an efficient educational model and means that a larger group overall can be involved in a single case, but educationally it’s not a great deal for every student – depending upon which task is allocated to them, they may be getting a better or poorer clinical experience out of it.  How do we deal with that?  Graham says law schools have to think carefully about which cases they take on.  Do we have a Priority Rule to help us decide which cases we will prefer over others?  What about a bit of trade off – what are we sacrificing educationally, how much are we benefiting in terms of access to justice?  Is it worth compromising one a bit, to get the big benefit from the other?  Graham’s personal favourite:  ‘It depends on the circumstances doesn’t it’.  Graham acknowledges this might be less of a rule for resolving conflict and more a matter of going back to principles and values.  15 minutes into his presentation and this might be the first mention of ‘values’ per se by Graham – a bit of a record for those of us who know him.  Our guiding principle as legal educators is the student educational experience, the onus is on us to consider the welfare, benefit and development of the student, so generally educators defend clinical legal education primarily on the basis of the educational benefit to their students.

However, Graham acknowledges that Donald Nicholson prioritises access to justice, though that is not to say that he discounts the educational value of clinical legal education.

A third option is suggested by Stuart Scheingold and Austin Sarat – you should do the right thing.  Your political point of view might influence how you resolve conflict e.g. if you are actively engaged in a particular ’cause’ which may become your priority.  The ’cause lawyers’ change the world because it’s the right thing to do and that is the focus of their legal practice.

Graham invites comments from the audience, who are a great mix of educators, practitioners and all sorts, from across the world, so there are some great perspectives informed by experience.  For example, what if you are both personally a cause lawyer, but at the moment you are acting as an educator i.e. as individuals, we may wear more than one hat.

Graham asks:  are clinics potentially a band-aid problem i.e. educators and students are filling a gap that actually needs major government action.  Maybe politically we have to let the massive problem of withdrawing legal aid happen, so that government and others actually appreciate that it is, in fact, a problem.  We are breaking ourselves and our students against the bulwark of a problem that we didn’t cause?  Interesting question.  Response from the floor asks whether that means it’s important that we include legal reform as part of the function of clinical legal education.  I am pondering this and the implications for how we help students to develop their professional identity and what that encompasses, but the debate moves on before I have caught up with my own ideas.

Comment from the floor – if there’s only so much money in the world and we can’t pay every legal bill, can we concentrate any resource on how we might limit legal conflict in the first place?  Is the first place to start in the schools, exploring values and the role of earlier education?  Will we have less conflict if we invest in this aspect of society?  A Property lawyer and a Tax lawyer debating values and ethics – whoop!

Comment from the floor – if we are talking about a value-forming and ethical legal education, is there a problem with prioritising the educational benefits of legal education i.e. are you treating clients as a means to an end?  Very interesting observation.  Graham responds that the nature of the Clinic is openly expressed and once we accept someone as a client, the onus is on us to treat them professionally.  You act in their best interests, not your own best interests, though he does acknowledge that this could all come to an end in practice if they stop paying you (not an issue with clinical legal education, which is generally pro bono).

We’re into shifting conditionalities within client relationships – happily, I have a ‘5 minute’ time warning card that I wave at Graham.  Oh the power!  Graham launches into a vote as a way of wrapping up.  Would you put the educational experience of the student first – 7.  Access to justice – 7.  Cause lawyer – I don’t spot any hands going up, despite some self-declared cause lawyers in the room.  It’s a 7-7 draw!

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