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Judith Dickson[*]
Education for justice demands that law school management and law teachers have a clear understanding of the interaction between law and society.
In September 1996 a group of judges, legal activists and law teachers met in Sydney during the international conference of the Australian Professional Legal Education Council (APLEC). They continued a discussion that had begun in 1995 at a workshop at the National Law School of India and continued in early 1996 at the Association of American Law Schools Clinical Section conference. The Sydney group included people from Argentina, Australia, Bangladesh, Canada, China, Fiji, India, Nigeria, South Africa, the United Kingdom and the United States and the discussions focused on how the idea and practice of ‘socially relevant legal education’ could be promoted both within law schools and the wider community. Another concern was how legal knowledge could be transferred within the wider community to enable communities and individuals within them to activate their legal rights and recognise their legal obligations.
The result of this meeting was the Global Alliance for Justice Education (GAJE), an international organisation committed to the promotion of justice education through information sharing and collaboration, through financial support of innovative justice education projects (especially in developing countries) and through regular conferences at accessible and affordable locations. In its mission statement GAJE emphasises that it is an ‘ALLIANCE of persons committed to achieving JUSTICE through legal education’. Clinical education of law students and curriculum development is part of the task but GAJE also envisages its members engaging with practising lawyers, judges, non-governmental organisations and the general public in ‘socially relevant legal education’.[1]
This is an activist agenda developed by lawyers who adhere to the belief that possession of legal knowledge and expertise carries with it a professional obligation not only to use it as an expert adviser but also to share it so that the legal system becomes more widely accessible. For a legal profession comfortable and protective of its (virtual) monopoly over the provision of legal services this may be an unacceptable and unworkable idea.
On the other hand, traditional notions of professionalism and professional responsibility may encourage and indeed demand of lawyers that they consider the needs of disadvantaged people in their communities and even the needs for systemic change. Law schools can and should emphasise these professional ethical obligations in their teaching.
In this article I concentrate on law schools. I begin by outlining the discussion over the past ten years in Australia and North America of the nature and meaning of professionalism and suggest that it raises a challenge to law schools. The challenge is to identify and build a meaningful and useful role for themselves in the maintenance and improvement of the justice system. The article discusses various educational methods and programs adopted in Australian and overseas law schools to meet this challenge. It concludes that while individual educational programs might teach students to see the law and legal decision making in a broad context, law school leadership has an intellectual and social obligation to build the curriculum on a recognition of the direct relationship between the law and legal decision making on the one hand and individual and systemic injustice on the other.
There is a considerable literature discussing the notion of professionalism.[2] While analyses and theories vary, it is generally agreed that among other characteristics, a professional is governed by ethical rules, has a monopoly over delivery of a specific service and has a commitment to public service.[3] The question that then arises is what is the nature of the professional responsibility that possession of these obligations and privileges leads to in legal professionals.
In every state of Australia the legal profession is regulated by statute.[4] The community grants lawyers (who satisfy the legislative requirements) a virtual monopoly over the provision of legal services. The commitment to public service can be seen as the way in which the legal profession ‘pays back’ the community for this monopoly. Larsen refers to this as the need to gain ‘social credit and autonomy’. Parker has a similar interpretation, describing it as a ‘moral compact’ between lawyers and the community.[5]
Discussion of professional responsibility has been rare in Australia until relatively recently. Law school curricula, with one or two exceptions, have not traditionally included the teaching of a subject with that focus.[6] The requirement of admissions boards for applicants to have a passing knowledge of the Rules of Professional Conduct (as commonly called) has been typically satisfied either by a summer school post degree course or by a module within the formal practical legal training courses. In their submission to the Pearce Committee in 1986, the Australian Law Deans did not include an ability in ethical decision making as a ‘major skill which law students should acquire during the primary degree course’.[7]
By way of contrast, in the United States, courses in professional responsibility have been a compulsory part of the curriculum since the Watergate affair in the early 1970s. The organised profession has taken the lead in examining and raising for debate the idea and practice of legal professional responsibility and has emphasised the important role of law schools in that debate. The MacCrate Report in 1992 proposed a ‘Statement of Fundamental Lawyering Skills and Values.[8] The fundamental values identified were:
• provision of competent representation,
• striving to promote justice, fairness and morality,
• striving to improve the profession, and
• professional self-development.
It was thus made clear that professional responsibility required more from lawyers than mere adherence to the Rules of Professional Conduct. It required adherence to a set of values inherent in the nature of lawyering. The Report looked to law schools to inculcate a knowledge and understanding of these professional values as well as of the Rules.
A similar discussion has taken place in Canada with recommendations from the Canadian Bar Association’s Task Force that ethics be a compulsory part of the law school curriculum. A very interesting aspect of this Task Force’s recommendations was its firm view that the teaching of ethics required consideration of ‘issues relating to obligations of lawyers regarding human rights and inter- personal relationships’.[9]
In Australia until very recently these issues appeared to be absent from the profession’s agendas and arose in the context of government initiated inquiries into the justice system and the role of the legal profession in the provision of legal services.[10] While attention has focused recently on the importance of ethics[11] there appears to have been only a limited public discussion within the practising profession of the meaning of professional responsibility or the practical obligations of lawyers within the justice system.
At the same time there is an energetic discussion taking place in legal academic writing in Australia, the United Kingdom and the United States (and probably elsewhere) of the meaning of professional responsibility.[12] The theme of these writings is lawyers’ relationship to and obligation to ensure, access to justice. There has also been a recent call from the Australian Law Reform Commission (ALRC) for university legal education to ‘involve the development of … a deep appreciation of ethical standards and professional responsibility’[13] and approval by it of the Fundamental Values set out in the MacCrate Report in the United States. The ALRC it appears also takes a broad view of the requirements of lawyers’ professional responsibility.
Where does all this lead to in legal education? The law school experience, it seems clear, has a powerful influence in the formation of future lawyers’ attitudes and values. Carrie Menkel-Meadow has asked ‘Can a Law Teacher Avoid Teaching Legal Ethics?’ and her answer was a resounding ‘NO’.[14] What is taught in law school and perhaps more importantly, how it is taught, serves as a model to students of the priorities of the legal profession. The clear message for law schools rising out of the ongoing discussion of the meaning of professional responsibility, is that their curriculum must teach ethics in such a way as to convey a strong message of the obligations to justice and an awareness of the ‘moral compact’[15] between lawyers and the community.
Law schools do have a significant role in the justice system. They cannot pretend that their role is simply to teach ‘the law’ as if it is something separate from the society in which it is applied. Similarly, they are not separate from the justice system and cannot avoid responsibility for the practices of the legal profession, the deficiencies in the legal system or the failures of legal policy.[16] The challenge for individual law schools and for the legal education system in general, is to develop curricula which incorporates the professional values of active commitment to justice.
There are numerous examples within Australian law schools of courses designed to engage students in a process of critical thinking about the law, the legal system and the relationship of lawyers to both. There are even more examples in the developing world as well as in the United States. What is apparent when one looks closely is that the clinical method of legal education can be and has been very successful in integrating legal education into the community. At the same time, it is also clear that classroom teaching is the most commonly used method in law schools making it imperative that it be used in innovative ways.
As a legal practice based method of legal education, clinical legal education offers the law student the opportunity to merge their theoretical knowledge of the law with their everyday experience of client needs (legal and otherwise) and their experience of the legal system’s response to those needs. A recent study of law student attitudes revealed the benefit of clinical programs in maintaining social values in the teaching of law within a law school environment that might be unsympathetic to this approach.[17]
The history of clinical legal education in Australia and the United States is well documented and while the details are different, the common theme is the integration of legal education with the provision of legal services to disadvantaged people in the community.[18] In Australia this has occurred by the forming of links between universities and community legal centres, a connection that over time has enabled large numbers of law students to gain a first hand understanding of the law in practice while providing legal services and engaging in law reform activities.[19] At the same time clinical programs are the place where the law teacher/clinical supervisor is most tested. Here, the teacher models approaches to clients and to their problems, both individual and systemic. This ‘doing something’ sends a powerful message to students. As Gary Blasi puts it ‘We say to our students … Watch this, and do likewise’.[20]
The variety of programs offered by the 17 Australian universities with clinical programs (in 2001/2002) attest to their popularity among students. Programs include both generalist and specialist clinics and include one (at La Trobe University) specifically designed for the teaching of legal ethics and professional responsibility and three programs (at Newcastle University, Griffith University and La Trobe University) focusing on the idea and practice of public interest law.
In the United States where the requirements of accreditation include clinical programs, the offerings are numerous and in the main continue to use the education/service balancing act to explore with students the wider social, economic and political ramifications of legal practice.
However, it is in countries such as Argentina and India that one finds clinical legal education programs that go beyond the usual model and which are both innovative and courageous. Stephen Meili has described the structural barriers to innovation in Chile and Argentina and yet noted that programs akin to community organising and public interest lawyering have developed.[21] Similarly, in India legal education in clinical programs is often connected directly to a community. Ken Gallant writes of programs coordinated by the National Law School of India, in which the ideals of professional responsibility are tested for their strength. In these programs students live in communities with apparent developmental problems with the aim of working with the people to create legal solutions (if possible) which are consistent with the community’s own needs and goals. In Gallant’s view these programs ‘help students experience and address the … deepest kind of disconnection between the law and community life’.[22]
Clinical legal education programs, however, remain elective programs in Australian law schools and in the current economic climate this is unlikely to change. While law schools should be encouraged to offer more such programs, they cannot rely on these alone to fulfil the promise of teaching about justice as well as law. Clearly, the compulsory subjects — the ‘core’ subjects of the ‘Priestley Eleven’ — and other electives have to be taught in such a way that their relationship to practical injustice is drawn out.
Family Law is an obvious example as is Property Law. Civil Procedure and Administrative Law are also subjects which raise interesting issues of ethical practice as well as the possibilities of public interest litigation. It requires only a little thought for an imaginative and skilled law teacher to address wider issues of the legal system and the multi-faceted nature of a lawyer’s professional responsibilities in the context of classroom teaching.
This area of conventional curriculum is one area where the mission of GAJE is of practical relevance. GAJE hopes to share ideas for curriculum development among its members and build on the work of, for example, the Commonwealth Legal Education Association and its model Human Rights curriculum.
As I have outlined above, the nature and extent of lawyers’ professional responsibility has been the subject of discussion among teachers of legal ethics, in government initiated inquiries and within the organised legal professions of the United States and Canada. More recently, the Australian profession has taken an interest in this issue. As I also suggested earlier in this article, the recurrent theme of these discussions has been that lawyers have a relationship with the justice system and an obligation to ensure that everyone in the community is able to access it.
One way in which lawyers seek to perform this obligation is through public interest work. Definition of ‘public interest law’ is difficult. Does it include ‘pro bono’ work of the kind performed by many lawyers? Or does it require an element of wider relevance and systemic injustice? Is it restricted to work for the disadvantaged in society or can it describe any legal work performed where the central legal issue is one of ‘interest’ to the community as a whole or to a section of it?
Rajeev Dhavan takes the view that ‘public interest law’:
… is part of the struggle by, and on behalf of, the disadvantaged to use ‘law’ to solve social and economic problems arising out of a differential and unequal distribution of opportunities and entitlements in society.
He goes on to argue that ‘ideally’ public interest law should involve the disadvantaged individual or group in the legal process or struggle.[23]
Law schools in Australia have not readily embraced the teaching of public interest law (other than as indicated above) whereas the public interest clinical program is not an uncommon feature of clinical legal education in the United States. Nevertheless, the ideas and practice of public interest law as described by Dhavan are consistent with an understanding of professional responsibility that obliges lawyers to ‘strive to promote justice, fairness and morality’.[24] The clinical program at Newcastle University adopts this view and seeks to combine the best teaching of legal skills with a determined challenge to police investigative practices. In doing so, the program embodies ethical legal practice and illustrates the application of public interest law.
Outside the clinical sphere, however, ethics courses as well as ‘black letter law’ courses, could alert students to the public interest law model of practice as an alternative means of using the law to confront systemic injustice.
In the end, the ‘justice education’ mission adopted by GAJE provides a model for law schools and lawyers. The most obvious role for law schools in the maintenance and improvement of the justice system is an educational one. Education for justice does not imply lack of attention to legal principles, legal theories or legal skills. However, it does demand that law school management and individual law teachers have a clear understanding themselves of the interaction between law and society. It also requires them to lead their students to an understanding of their professional obligations as lawyers that includes active commitment to the pursuit of justice and the redress of injustice.
[*] Judith Dickson teaches in the School of Law and Legal Studies at La Trobe University.email: J.Dickson@latrobe.edu.au©2003 Judith Dickson (text)
[1] See <www.gaje.org> and McCrimmon, Les, ‘Transforming Legal Education into Justice Education :GAJE’, (2000) 76 Reform 48.
[2] For a taste see: Johnson, T., Professions and Power, MacMillan, 1972; Carr-Saunders, A.M. and Wilson, P.A., The Professions, Oxford University Press, 1933; Larsen, M.S., The Rise of Professionalism: A Sociological Analysis, University of California Press, 1977.
[3] Larsen, M.S., above, ref 2.
[4] Legal Practice Act 1996 (Vic); Legal Profession Act 1993 (Tas); Legal Practitioners Act 1893 (WA); Legal Practitioners Act 1981 (SA); Legal Profession Act 1987 (NSW); Law Society Act 1952 (Qld).
[5] Larsen, M.S., above, ref 2, p.59 and Parker, S., ‘Why Lawyers Should Do Pro Bono Work’, (2001) 19 Law in Context 9.
[6] The University of New South Wales has had a compulsory course within its law degree since 1974.
[7] Submission of Australian Law School Deans to the Commonwealth Tertiary Education Commission Assessment Committee for the Discipline of Law (the Pearce Committee), April 1986, para 26.
[8] Report of the Task Force on Law Schools and the Profession: Narrowing the Gap Legal Education and Professional Development — an Educational Continuum, American Bar Association 1992 (the MacCrate Report), and see, American Bar Association, In the Spirit of Public Service: A Blueprint for the Rekindling of Professionalism, 1986.
[9] Committee Responding to Recommendation 49 of the Systems of Civil Justice Task Force Report, Attitudes-Skills-Knowledge: Proposals for Legal Education to Assist in Implementing a Multi-option Civil Justice System in the 21st Century, DP, Canadian Bar Association, Ottawa, 1999, p.48.
[10] For example, Senate Standing Committee on Legal and Constitutional Affairs, Cost of Legal Services and Litigation, DP#5 Legal Ethics, 1992, Access to Justice Advisory Committee Access to Justice: An Action Plan 1994.
[11] Law Council of Australia, 2010: A Discussion Paper: Challenges to the Legal Profession, 2001 and a number of high profile cases raising questions of ethical conduct.
[12] For example (2001) 12 (nos1 & 2) Legal Education Review; Economides, Kim (ed.), Ethical Challenges to Legal Education and Conduct, Hart Publishing, Oxford 1998; (1995) 58 Law and Contemporary Problems.
[13] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Final Report, AGPS, 2000, p.142.
[14] (1991) 41 Journal of Legal Education 3.
[15] Parker, above, ref 5.
[16] For discussion of this see eg, Edwards, Harry T., ‘The Role of Legal Education in Shaping the Profession, (1988) 38 Journal of Legal Education 285; Blasi, Gary., ‘Teaching/Lawyering as an Intellectual Project’, (1996) 14 Journal of Professional Legal Education 65 and the various essays in Cooper, J. and Trubek, L. (eds) Educating for Justice: Social Values in Legal Education, Ashgate, 1997.
[17] Maresh, S., ‘The Impact of Clinical Legal Education on the Decisions of Law Students to Practice Public Interest Law’ in Cooper and Trubek (eds), above, ref 16.
[18] See, Dickson, J.A., ‘Students in Court: Competent and Ethical Advocates,’ (1998) 16 Journal of Professional Legal Education 155 for a brief recounting of the histories.
[19] Noone, M.A., ‘Australian Community Legal Centres — the University Connection’ in Cooper and Trubek (eds) above, ref 16.
[20] Blasi, Gary, above, ref 16, p 73.
[21] Meili, S., ‘Legal Education in Argentina and Chile’ in Cooper, J. and Trubek, L., Educating for Justice Around the World: Legal Education, Legal Practice and the Community, Dartmouth, 1999.
[22] Gallant, Ken, ‘Learning from Communities: Lessons from India on Clinical Method and Liberal Education’, in Cooper and Trubek (eds), above, ref 16, p.222.
[23] Dhavan, R., ‘Whose Law? Whose Interest?’ in Cooper, J. and Dhavan, R. (eds), Public Interest Law, Blackwell, 1987.
[24] MacCrate Report, above, ref 8.
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