REFORMING LEGAL EDUCATION Training Law Students to Become More Skilled and

1. REFORMING LEGAL EDUCATION Training Law Students to Become More Skilled and Ethical Lawyers: A Clinical Legal Education Perspective WITS PUBLIC INTEREST LAW GATHERING 2 DECEMBER 2011

2. Council for Higher Education: The LLB Curriculum Research Report • Large-scale survey undertaken of legal academics and practitioners about the preparedness of LLB graduates for the practice of law • 2,514 practitioners and 351 legal academics responded • Findings: • ability to understand, analyse, investigate and solve problems; • proficiency in reading, writing and speaking English; • ability to read and interpret statutes and legal documents; • ability to construct and communicate an argument; • understanding of the principles of SA law and how they apply in practice; and • research skills, both in general and specific to the profession.

3. Contemporary Clinical Legal Education • “..the essence of clinical legal education is a teaching methodology used by competent , experienced educators who attempt through lectures, discussions, exercises and real experiences to help students learn about the interplay between theory and practice as well as gain the skills and values they need if they are to become competent lawyers. The clinical methodology is not limited to in- house live client clinics but can be employed in different formats.” • Rodney J. Uphoff, Why in-house live client clinics won’t work in Romania: Confessions of a clinical educator, 6 Clinical L Review 315 199- 2000. Pg 328.

4. Introduction Most effective method of learning includes the integration of theory, application and reflection What better way to do this then to consider adopting a teaching methodology that incorporates all of the above Clinical legal education

5. Definition of Clinical Legal Education Trite that before a discussion on the actual definition of CLE is advanced – semantics behind the words CLE or clinical be advanced The word clinic originates from practice of medicine and is defined as “a building where outpatients receive medical treatment or advice” (Collins dictionary, Elison Khan, Swanepoel)

6. Continued Within the legal environment “clinic” is synonymous with the service delivery environment accompanied by the real client According to Menon – he noted “ in the context of legal education, it refers to any law school course or programme in which law students participate in doing what lawyers usually do including representation of clients under the supervision of a lawyer/ teacher”

7. Definition of CLE - conservative vs. liberal approach A reflection on the definition of CLE over the last century illustrates a shift from the more conservative to a liberal approach Conservatives noting CLE as an isolated course that teaches students lawyering skills – limited to the live client clinic Liberals – advance CLE as a teaching methodology and propose the use of different methods and incorporation of the CLE methodology into the broader LLB degree. ’

8. Continued Conservatives – Willem Pincus, McQuoid – Mason who defined CLE as teaching legal skills in a social justice context

9. Continued • Liberals remember that although no lesser value should be attached to the role that access to justice attaches to CLE, confining CLE within the limited dimensions of a live client interaction will be an injustice to the true value that the course can promote. • In this era of reflections of law degrees and the discussions of integration of skills required by professional education, the examples that CLE can potentially deliver to law schools should not be underestimated.

10. PROPONENTS OF CLE • Liberal academics include: Gary Bellow (1973) • Mark Siegel (1986 – 1987), • Peter Hoffman in (1994) argues that skills training as opposed to exclusive live client model be considered as the central goal of CLE • Uphoff (2000) Roy Stuckey (2007) • African authors include Ojienda and Odour when they talk on the CLE program at Moi University in Kenya

11. MORE PROPONENTS • In SA in 1973 – John Dugard proposed recommendations for the integration of the clinical methodology into main stream courses. • In 2007 – De Klerk submitted that “ clinical legal education is not a course or subject, as typically packaged in the law degree, but is in fact a teaching methodology.” • Both Stuckey and De Klerk advocate for the use of a variety of methods

12. US Experience With CLE • McCrate Report (1992) – American Bar Association published Report of the Task Force on Law Schools and the Profession • Provides “Statement of Fundamental Lawyering Skills and Professional Values” which are essential for competent representation, including that a lawyer should: (1) attain a level of competence in one’s own field of practice, (2) maintain a level of competence in one’s own field of practice, and (3) represent clients in a competent manner • The Report emphasized the value to law students of practice-oriented instruction, including clinics, externships and simulations. • Recognized the value of part-time employment during the academic year as a complement to classroom instruction. • Under the topic of transition into practice, the Report notes that apprenticeships have fallen into disfavor in the United States, but are generally required in the Commonwealth jurisdictions.

13. US Experience With CLE Carnegie Report (2007) – Carnegie Foundation for the Advancement of Teaching published Educating Lawyers: Preparing for the Profession of Law • survey of 16 law schools in US and Canada • current law school curriculum is too focused on the case-dialogue method, which is narrow and does not teach students how to deal with people or complex situations • teaches students how to “think like a lawyer,” but provides no guidance for understanding social consequences or ethical aspects of legal conclusions it creates • law schools’ assessment of student learning is underdeveloped, formative assessments directed toward improved learning ought to be a primary form of assessment in legal education. • concludes that there should be comprehensive rather than incremental improvements to address lawyering skills and professionalism. Finally, the Carnegie team proposed an “integrative model” for law schools, which “addresses the problem of the larger curriculum, particularly what should happen in the third year. In most schools, curriculum lacks clear shape or purpose.”

14. Carnegie Cont’d • The dramatic results of the first year of law school’s emphasis on well-honed skills of legal analysis should be matched by similarly strong skill in serving clients and a solid ethical grounding. • Only casual attention paid to teaching students how to use legal thinking in the complexity of actual law practice with the result being to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner • Law schools fail to complement the focus on skill in legal analyses with effective support for developing ethical and social skills. students need opportunities to learn about, reflect on and practice the responsibilities of legal professionals. To engage the moral imagination of students as they move toward professional practice, seminaries and medical, business and engineering schools employ well-elaborated case studies of professional work. Law schools, which pioneered the use of case teaching, only occasionally do so. • Law schools should offer an integrated, three-part curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth; (2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant with the fundamental purposes of the legal profession. Integrating the three parts of legal education would better prepare students for the varied demands of professional legal work.

15. In 2011, Prof. Geo Quinot (Stellenbosch) used the frame of “transformative constitutionalism” to advocate for more practical contextual training in legal education: • Law graduates should be equipped to drive social transformation and be innovators under the Constitution, not just technicians. • Law teachers must assume their role in the transformative project. How we teach law will shape the next generation’s perception of law and its role in the country. • Students need to become active participants in the construction of knowledge, and to challenge authoritative viewpoints.

16. LEGAL PRACTICE BILL • Compulsory Community Service Proposed for All Law Graduates • Minister of Justice and Constitutional Devt Radebe pushing to table Bill in Parliament by end of 2011 • Skills and ethics training is ideal to prepare graduates for this undertaking

17. Curricular Innovations Wits Integrate Skills Curriculum 2012 Clinical Group Work undertaken by the Human Rights and Democratisation in Africa LLM Programme at Pretoria Wits Refugee Clinic / Human Rights Clinic UCT CLASI Public Interest Lawyering Seminar

18. Questions • Do all students have a right to tertiary education, and if so, to a quality right to tertiary education? • How do we bring law faculties in line with imperatives of “transformative constitutionalism” – of “strengthening the democratic ethos, the sense of common citizenship and commitment to a common good”? • What kind of empirical research is necessary in SA to advance CLE? • What is the contemporary role that access to justice plays within CLE?

19. Questions Cont’d • Is there a role for externships in the broader integrated LLB curriculum? 6. Do you train and monitor lecturers on their integration of skills into courses? If so, how? 7. How should these traditional courses be assessed? 8. In a clinical setting, how do you reconcile client interests where the stakes are high with students’ educational interests? 9. How do we impress upon students the importance of non-traditional clinical work? 10. Will an integrated skills curriculum and other curricular innovations lead to higher quality law graduates and/or higher throughput rates for law schools?

20. To Be Continued…. • Introducing CLE Research Working Group • Please join us for our first meeting at 12:15 pm THANK YOU!!