Teaching ethics clinically without breaking the bank

1. Teaching ethics clinically without breaking the bank Donald Nicolson, Director, University of Strathclyde Law Clinic

2. Aims • Outline advantages of teaching clinically (ie through “live” clients) • As far as possible, illustrate some of these advantages • Respond to alleged drawbacks of teaching ethics clinically – cost and coverage • Share and compare experiences of teaching ethics clinically and non-clinically

3. Clinics, Ethics and Educational Theory • Aim of Ethical Education • Ensure graduates ACT as ethical professionals – ie uphold high moral standards and contribute to access to justice (altru-ethical or ultra ethical professionalism) • Four necessary psychological components (eg D. Narvaez and J. Rest ‘The Four Components of Acting Morally’ in Kurtines and Gewirtz (eds), Moral Development: An Introduction • Moral Sensitivity • Moral Judgment • Moral Commitment • Moral Courage

4. Clinics, Ethics, Educational Theory • Moral Character and Ethical Behaviour See (D. Nicolson, ‘Education, Education, Education: Legal Moral and Clinical’ The Law Teacher 42,2008, 145) • Teaching rules only develops sensitivity and only to limited extent • Teaching theory and application also develops judgment but not necessarily commitment and courage • Only character development ensures all four components – doing the ‘right thing’ needs to become a more or less spontaneous response

5. Clinics, Ethics, Educational Theory • Moral Character and Ethical Behaviour • Moral character develops through actual engagement and experimentation with ethical issues, and particularly from feelings of satisfaction and regret, and from learning from moral exemplars • Law school cannot radically alter character, but it can at least help resist the hidden curriculum, confirm existing altru-ethical traits, and translate them into professional moral character and, and might even develop altru-ethical traits in some

6. Clinics, Ethics and Educational Theory • But • Character development/modification takes time • Experience alone is not sufficient • (‘[l]earning occurs not in the doing but in the reflection and conceptualisation that takes place during and after the event’: Brayne, Duncan & Grimes (eds), Clinical Legal Education: Active Learning in Your Law School, 1998, 47. • Personal reflection can be significantly enhanced by • a theory to make sense of experience • guided reflection on experience • Four aims of ethical education: • Inspire • Illuminate • Illustrate • Inculcate

7. Clinics, Ethics and Educational Theory Kolb’s learning cycle

8. Clinics, Ethics and Educational Theory • Four aims of ethical education: • Inspire an interest in ethics • Illuminate the general and professional ethical tools available to resolve issues of professional ethics, and factors which affect resolution • Illustrate these tools and issues through exposure to situations involving moral dilemmas • Inculcate the habit of identifying, evaluating and caring about ethical issues so that this becomes a more or less spontaneous response in practice

9. Advantages of Teaching Ethics Clinically • Learning experiences which are realistic, and involve future social roles, are more profound than abstract learning • The ‘disorienting moments’/moral crises’ which occur when prior assumptions and settled values jar with experiences stimulate an ‘engaged moral faculty’ • Both can be created through role plays and simulation, but…

10. Question based on diary in oral examination

11. Advantages of Teaching Ethics Clinically • Both can be created through role plays and simulation, but…. • lessons learnt are likely to go deeper when students are responsible for decisions have consequences in the ‘real’ world. • community engagement shown to enhance moral development • engaging with actual clients may evoke empathy which is important to the development of moral judgment and commitment.

12. What did you learn most from your clinic experience?

13. Advantages of Teaching Ethics Clinically • AND clinics create number of important conditions for character development • Feelings of satisfaction or regret at their actions in representing actual clients and resolving real dilemmas more likely to ensure character development • Students can be involved in a ‘moral apprenticeship’ through learning from staff and indeed other students

14. Clinical education ‘on the cheap’? • The USLC Clinic • Has up to 180 students who provide advice and representation • Membership can last 5 years, • Students conduct as many as 40 cases • All for the price of +/- £100,000 p.a • How? • Clinic is largely extra-curricular and social-justice oriented) • Generally no academic credit for clinic work and apart from induction training and voluntary CPD, no formal education content • Two part-time solicitors concentrate on quality control through hands-off ‘final product’ basis - staff student ratio of +/- 1:150!) • Vast majority of administration and policy making done by students

15. Other Advantages of the USLC Model • Avoids potentially negative message of educationally oriented clinic (cf Nicolson “Legal Education Or Community Service? The Extra-Curricular Student Law Clinic” (2006) 3 Web Journal of Current Legal Issues) • Student Committee acts as ‘justice community’ • Enhanced ‘moral apprenticeship’ through student mentoring informally (work in pairs) and formally (each student in a firm with experienced ‘case manager’) • Allows for much longer immersion in the Clinic and repeat turns of the learning cycle.

16. What did you learn most from your case?

17. Ethics Teaching at Strathclyde • Apart from training, direct education can be devoted to ethics. • Clinical Legal Practice (CLP) • Optional class for experienced USLC students devoted to issues of ethics and justice (cf altru-ethical professionalism) • Assessed via weekly diary, essay based on ethics/justice of case undertaken, cases (2 for ordinary/1 for honours) and (in case of honours) oral • Clinical LLB • Integrates clinical experience into standard law degree, though compulsory clinical classes (incl CLP) and at least 2 other clinical classes • Students assessed on skills training, cases and diary reflection • Students must first be admitted to and sign up to USLC ethos

18. Ethics Teaching at Strathclyde • All Clinical LLB students and from next year all students • introduced to major ethical issues to ensure moral sensitivity • CLP Students • Legal ethics illuminated and illustrated through • Introduction to ethical theory • 6 seminars based on detailed reading on • professionalism and sociological context; • client autonomy; • conflicts and confidentiality; • immoral means and ends x 2; • ethical education and regulation). • Reflection on cases in surgeries, diary dialogue and essays

19. Introductory Exercise • Identify your five most important ethical values/principles/beliefs • Aim • warm up ethical muscles • Use as means of exploring difference between moral principles, traits and appraoches • Which of these do you think you will be able to retain once in practice?

20. Immoral Ends – Representation Dilemmas •  A client comes to you with a very good case for setting aside an election on the grounds that a few votes were not counted. However, he has little chance of being elected on a recount and also shows you election material which is homophobic. • A client wants you to help resolve a complicated neighbour dispute involving blocked access to their parking space. He seems to have a good case, though enforcing it will be difficult. However, during the course of the interview he expresses racist views about his Irish neighbours •  A man comes to you for help in a custody battle. He seems to genuinely want to look after his children and provides plausible grounds for doubting his wife’s parenting skills. However, he admits that once in the past he assaulted his wife and that she is using that against him to win the custody case • A landlady wants to sue her agents. In the course of the action it became clear that she was a pretty bad landlady – eg she frequently turned up unannounced at the premises., demanding entry to make inspections of premises.

21. Immoral Means – Tactic Dilemmas •  You represent a client suing for return of a deposit refused on grounds of damage to the premises. However, she can prove that this was untrue. You confront the landlady who then comes up with anther reason. You later learn that she has a history of denying deposits on spurious grounds. Should you threaten to go to the police alleging fraud unless she returns the deposit?  • You represent a charity in protracted negotiations against an unrepresented litigant who claims that your property collapsed causing damages to his. After almost three years, he decides to sue. However, you know that there is a chance that the summons might be defective. Should you inform the opponent or wait until court to raise the issue in the hope that the claim becomes time barred? • Your client wants compensation for a disease picked up at work. You require further information about the disease but can only get it from the defenders. Should you pretend to be a student researching this disease to get the information? • You are engaged in negotiating a settlement. Your client wants a minimum of £1000. Can you say that you don’t think client will accept less than £2000 or even that you have been instructed not to accept £2000?

22. Client Autonomy and Paternalism Dilemmas • Your client wants to sue the NHS for racial discrimination You fail to discover any supporting evidence, but are able to gain an offer of £2,000. The client insists on going to court in order to teach the NHS a lesson. Are you entitled to use all your powers of persuasion to get her to accept offer? If you fail, should you continue? • Your client is being pursued by a firm of solicitors for £1,400.2 of unpaid legal fees. Based on the interview and documents produce, you lodge a counter claim, but later realise the case is not as strong as initially thought. The client instructs you to proceed nevertheless. A 3-4 day proof is scheduled. Afterwards, the solicitors offer to drop their claim and not seek expenses if your client dropped her counter-claim. You advise her that it would be in her best interests to accept, but she refuses as she was still furious at her treatment Do you try to dissuade her and if you cannot should you continue to go to proof? • You are acting against a law firm who has made one of their trainees redundant while on maternity leave. She informs you in passing that a fellow worker had been subject to sexual harassment by the partner responsible, but does not suggest that you use this information. Should you go ahead and use this information as a bargaining tool or should you clear this with your client first?

23. Conflicts of Interest • A client wants to sue one of very few criminal firms working in your home town. You have gone to university specifically to become a criminal lawyer so that you can help those in your local area, but if you take on this case and particularly if you act with all necessary zeal you will radically reduce the chances of getting a job with this firm and possibly all in the area. Do you decline to act? • A client want to sue for constructive dismissal. He alleges that he was so badly bullied for having a learning disability that he was forced to resign. He complains particularly of the actions of Mr X. Shortly after interviewing the client, you are contacted by Mrs X, a secretary in your organisation. She urges you to drop the case. Should you do so? Would it make a difference if this information comes to light weeks or months after representation had commenced? • You are asked to take on a case suing a professional body. However the other side is represented by a law firm which sponsors the Clinic, albeit not for very much. Can you continue to represent?

24. Disadvantages of teaching ethics clinically • Coverage • The above dilemmas are only experienced ‘live’ by two students (though committee might debate them) • Clinic cases do not represent full range of ethical dilemmas (eg confidentiality) • Response • Latter problem no worse than other classes because can also use hypotheticals • In fact most clinic students experience a wide range of issues and draw upon their reading and views of others to resolve them. • Some cases (eg case 1 for autonomy is same case as conflicts case 1 and also involved tactical issue)

25. Evidence of Clinic Effect • See Nicolson, Learning In Justice: Ethical Education In An Extra-Curricular Law Clinic in Robertson et al (eds) The Ethics Project in Legal Education, (2010) – study of 23 reflective diaries of 21 students who had experienced an average of 4.5 cases before class • All students report having experienced or currently experiencing ethical dilemmas • Conflict of interest (1) • Tactics (reporting malpractice as bargaining tool -3; use of deception 2; taking advantage of client’s lack of representation 3) • Client relations – all reported dilemmas involving how to treat clients in professionally and empathetically, not unduly raising their hopes or impinging on their autonomy, or having to respond to clients who were unreliable or seen as untrustworthy, manipulative or lacking in gratitude.

26. What did you do well in this case?

27. Evidence of Clinic Effect • Impact of dilemmas widened by class and Committee discussion • Resolution influenced by staff, other students, and seminar reading and discussion, and Clinic generally • [A]fter working with different clinic members and the CLP class I can appreciate that there are circumstances outwith the client’s control and I should not judge them by mine own standards. (Isla) • Seminar discussion of tolerance an hour before client interview inspired Patrick to do all he could to help client notwithstanding that he considered him to be “untruthful and manipulative” • Two months later, after standing up to an aggressive opponent Patrick stated that he had found it ‘easier to make decisions on how to act mainly due to the knowledge I have gained through the CLP course.’

28. Evidence of Clinic Effect • Resolution influenced by staff, other students, and seminar reading and discussion, and Clinic generally • Faced with the option of using the ‘dirty trick’ in the sex discrimination (autonomy dilemma 1) , Rebecca cites seminar reading to justify using her morality to ‘filter what I find to be immoral instructions’ and engaging client in ‘moral dialogue’ • Five weeks later, after discovering that the defenders had lied, she methodically applied the contextual approach to ethics and reversed her earlier decision, noting that her partner, who had been taught ethics in the diploma ‘did not view the matter as involving morality’ and commenting that this was ‘a blatant example of the benefits of the CLP/Law Clinic Education’.

29. Evidence of Clinic Effect • Resolution influenced by staff, other students, seminars and Clinic generally • Faced with conflict of interest between herself and client (conflict dilemma 1), Rebecca stated: ‘The altruistic ethos helped to reinforce my beliefs and allowed me to feel comfortable making a selfless decision in a profession surrounded by greed and self-importance. Without the Clinic to strengthen and normalise my beliefs I do not know if I would have had the courage and conviction to act outside the norm. In the future, I will try to use the Clinic as an example to justify acting altruistically rather than succumbing to peer pressure. In this test of character... without the Clinic I would not have known that when it comes to it I am able to put aside personal gain for the sake of the right thing’ • NB – this case gave rise to three ethical issues (autonomy, tactics, conflicts)

30. Question based on diary entry

31. What have you learned from your case?

32. Evidence of the Clinic Effect on Character Development • Engendering feelings of satisfaction or regret at the conduct of cases • After successfully completing an 18 month long case against all the odds, Lindsay commented: To say the least it was extremely satisfying... I now really understand why people get so much from the Clinic on a personal level. In this case I got to help out someone … who would otherwise have been utterly vulnerable to people far stronger than herself • Moral exemplars • Practitioner volunteer showed Isla that she ‘can work in private practice and still achieve her ultimate aim of helping others’ and for Seamus she had acted as ‘a positive role model to students’ and been ‘inspirational to me for my own career’. • Patrick commented that one factor which helped overcome his distaste for his client ‘was Donald’s “good nature” and commitment to social justice...this motivated us to carry out research late into the night!

33. Evidence of the Clinic Effect on Character Development • Mentoring and being mentored by other students • Sitting in on a number of interviews I found myself looking at the issues in a more ethical manner than I imagine I would otherwise... In a way, I have found myself having a “moral apprenticeship”. (Vikram) • See also comments by Patrick and Rebecca regarding opportunities for moral influence and those of Isla: • I believe that my entries show a change in my attitude towards clients. For example in Week 3 I was adamant that it was above and beyond the call of duty to show concern or compassion for my clients however in week 8 I found that my new case partner shared the same view which I used to possess. ... My partner’s view was very pragmatic, ‘if the client doesn’t tell us all the information then that’s their fault. .... When I explained to him that it wouldn’t be fair to judge the client by our personal standards I realised that I no longer agreed with my old perception of clients ...

34. Evidence of Other Clinic Effects • Developing a Social Conscience • I didn’t start my law degree to ‘make a difference’, my goal was simply to earn enough money so I can afford some of life’s luxuries and have no financial troubles. However, having seen the positive effect my time and effort has had on clients of the clinic has changed my perspective and now, my ultimate goal is to find a job that provides both financial security and a chance to help communities or less fortunate individuals. (Isla). • Before my experience in the Law Clinic I imagined a career in a large law firm and hadn’t really considered the larger ideal of social justice.... Now I find it impossible not to. (Callum) • Influence on Career Choice • Simply realise that want to devote career to helping others • Give students tools to cope with moral difficulties of intended career • Realise moral difficulties too great to cope with

35. Evidence of Other Clinic Effects • Learning about justice • ‘it appears...that the legal system is no longer fit for poor or “average” people it appears more geared towards businesses and the rich’. (Isla, whose client been turned down by 8 solicitors)

36. What did you most learn from your clinic experience?