Alternative Law Journal
Jenni Clark, Louise Formosa, Paula Rogers, Ben Cochrane, Kate Fitzgerald and Craig Pratt[*]
Participants in QPILCH’s pilot student clinic give their views on the value of clinical legal education.
This article, written by participating students, outlines our experiences in the development and operation of a pilot clinical legal education (CLE) program involving the placement of Griffith University law students at the recently established Queensland Public Interest Law Clearing House (QPILCH). As part of a new course, titled Public Interest Lawyering, six students spent one day a week at QPILCH, working with the QPILCH coordinator on the assessment of requests for assistance as well as completing group projects on public interest legal issues.
Students in Australian law schools have been heavily involved in pro bono legal work in a range of ways. Students were central to the establishment of early Australian Community Legal Centres (CLCs) and many students continue to volunteer at CLCs across the country. A range of law schools also operate legal advice clinics, enabling students to work with practitioner academics in organised programs for academic credit. The focus of such clinical programs has been on student involvement in direct casework delivery as well as project work.
After outlining the value of involving students in pro bono law organisations like QPILCH, this article details how this particular program operated. The article highlights the issues we confronted in our file work at the clinic and details the law reform projects undertaken as part of our assessment. The article concludes by suggesting the clinic provides a valuable experience for QPILCH, the university and, particularly, students.
There is strong evidence that student values and attitudes are profoundly influenced by legal education. The law school experience calls into question students’ self-knowledge, their motivations and their ambitions often resulting in disillusionment and disengagement.
Law schools play a significant role in legal professional culture. As Styles and Zariski state, ‘law schools are agents of socialisation and promote acculturation of students into professional roles’. Chaifetz says the experience means ‘students shape their legal identities in accordance with the existing majority viewpoint’. He describes this as the ‘latent curriculum phenomenon’ whereby emphasis is given to particular areas of law and legal skills presenting a narrow picture of the legal practitioner.
Substantive content favours areas of law relevant to earning a living with few courses specific to social justice issues. Traditional teaching styles establish a ’moral framework’ that encourages competitive, rational and adversarial approaches to law. There is an over-emphasis on case-by-case learning and little reflection on how legal skills can be used to address broader social issues.
Chaifetz asserts that from their first year of study, law students ‘move from the conception of law as a tool for social change or betterment towards a perception of law as a system for resolving conflict’. Students can become increasingly sceptical about lawyers’ ethical and professional behaviour. Indeed, the prevailing attitude of teachers and students alike is that studying legal ethics is unimportant. Increased cynicism is the most common change in students’ personal values. The result is that students’ expectations about using the law to bring about social justice are diminished, even if they retain a social justice conscience.
Public service has always been essential to lawyers’ professional responsibilities. This can be described either in terms of lawyers’ ethical duty to the court or of a wider ‘duty’ to uphold the rule of law and enhance access to justice. It is now also claimed large law firms should provide pro bono services in their role as corporate citizens. Parker explains this in terms of a ‘moral compact’ between lawyers and the community where public service is expected in exchange for the advantages of lawyers’ ‘gatekeeper status’.
However, lawyers’ spirit of public service is in danger of being overshadowed by commercial imperatives and public opinion of lawyers remains negative. In its recent Report 2010 — A Discussion Paper: Challenges for the Legal Profession, the Law Council of Austraia recognised that legal professionalism requires a clear commitment by lawyers to public service.
Given that lawyering skills and attitudes about legal practice are acquired at law school, it is within this context that lawyers’ public service role should be developed. Law school is arguably the ‘best place to initiate the idea of the lawyer as a guardian of a fair and equitable legal system’. Law schools’ failure to address public interest issues encourages future practitioners to do the same. Arguably the best way to ensure future lawyers have a pro bono ethos is to ‘include information regarding the history, principles and practice of these areas in their law courses’.
The particular clinical context of the QPILCH clinical program provided enhanced opportunities for us to understand professional responsibility issues. We not only gained a direct insight into the common legal issues and obstacles facing pro bono clients, but were also confronted with the very meaning of public interest lawyering and the issues facing providers of public interest legal services. File assessments involved us not only in fact gathering and researching to assess the applicant’s legal position, but in determining difficult questions about the public interest element of the claim. Our understanding of legal professional responsibility was directly challenged and refined by this process, particularly given our additional role in advising applicants of their assessment outcome. This provided us a critical insight into professional responsibility and access to justice issues.
Both the Australian Law Reform Commission and the National Pro Bono Task Force recommend opportunities be given to law students to participate in pro bono work to encourage appreciation of professional responsibility. A strong culture of pro bono service can be further enhanced by integrating public interest ideas into core curriculum, by offering courses in poverty law and professional responsibility, and by recognising students’ pro bono activities. Legal education needs to ‘create a framework … that fosters respect for public interest work and for those who decide to dedicate their careers to such work’.
Clinical legal education (CLE) based in Australian community legal centres provides excellent opportunities for understanding the link between law and social justice issues and developing a pro bono ethos. Styles and Zariski recently published research on the impact of CLE on law students participating in the Southern Communities Advocacy, Legal and Education Service (SCALES) clinic attached to Murdoch University. Their research revealed that students who have participated in CLE (particularly real-client clinics):
• are more sensitive to social justice issues, including access to justice;
• have a greater appreciation that lawyers have a moral obligation to assist disadvantaged groups, be involved in the law reform process and participate in community legal education; and
• are more likely to show an interest in offering pro bono legal services after graduation.
Our experience of the QPILCH clinic suggests there are five main ways in which CLE promotes an orientation to public interest lawyering among students. First, clinics involving client interaction reveal the ‘human face’ of law. Clinics invariably involve assisting disadvantaged people who ‘have great difficulty attaining justice inside or outside the legal system’. Working at QPILCH gave us a greater understanding of the way in which a client’s cultural, social and political background greatly affects their access to justice and the impact of law on their lives.
Second, CLE creates a supportive environment for students to express public interest concerns and facilitates peer interaction and support amongst students with similar social justice values. While law school is often an isolating experience for those students who wish to pursue public interest lawyering, CLE provides such students with a greater sense of unity and validates their ideals. These were certainly our experiences at QPILCH, particularly given the focus on group work and seminar participation.
Third, clinic supervisors make excellent role models in public interest lawyering for students. We gained great insight from our supervisor’s and visitors’ perspectives on access to justice issues and his advice regarding possible career paths in public interest lawyering.
Fourth, clinical programs are designed to promote critical reflection as students are asked to step back and analyse what they can take away from their clinical experiences. As Grimes states:
Reflection can be seen as a much wider concept that brings into question the administration of justice, the role of law and lawyers in society and the economic, social and political implications of law and its practice.
Finally, clinics can provide an empowering experience for students, as they are able to use their legal skills to make a real difference to a client’s life. However, the nature of QPILCH meant we were often disillusioned with the ability of the legal system to provide justice to all individuals. QPILCH generally does not refer applications that lack merit, even though they may be clearly in the public interest. As such, we were forced to recommend that many applications, which raised important public interest issues, not be accepted due to a lack of legal merit. Given that most applicants are at the end of their ‘legal journey’, we were deeply aware, when recommending applications not be accepted, that few applicants would have access to other legal assistance. We gained a greater understanding that the legal system cannot solve all the community’s problems, and that other avenues may be needed for social change.
As such, it is the very nature of the QPILCH clinic that students are directly exposed to the reality that the current legal services market does not always provide access to justice. The clinic gave us an insight into the limitations of particular pro bono organisations, like QPILCH, and into the need for increased coordination between such organisations, law firms, bar associations, community legal centres and legal aid. It also encouraged us to analyse other means of providing greater access to justice within the current legal services market and in this way served only to strengthen our desires to provide legal assistance to disadvantaged clients in our future careers.
The course comprised three main components: casework, law reform projects and seminar participation. We were involved in assessing applications for pro bono assistance by reference to the QPILCH eligibility criteria. Documents were reviewed and further information obtained from applicants and others with relevant information and knowledge. The emphasis was not, as in many clinical programs, on the provision of advice to clients. We had the opportunity to witness the law’s broader social impacts as the focus was not so much what was best for the individual applicant, but the extent to which a positive outcome would benefit the broader community.
Our assessments were made with reference to the QPILCH criteria which defines a matter of public interest as one involving:
• a significant number of people,
• matters of broad public concern,
• disadvantaged or marginalised groups, or
• a need for legal intervention to avoid significant and avoidable injustice.
The assessment process improved our skills in research, interviewing, letter-writing and file management. Our teamwork skills also improved as we conducted the file work in pairs. The development of these skills occurred under the guidance and supervision of the QPILCH coordinator.
The course also engaged us in the law reform process through research projects on changes to Queensland’s coronial process and the development of a model ‘no win, no fee’ client agreement.
The final component of the course focused on group participation and learning through seminar presentations. Each of us was required to lead a discussion on a topic relevant to public interest law issues. Many of the topics were oriented toward practical guidance in making assessments. Topics included: the use of law to pursue public interest objectives, the benefits of pro bono representation to disadvantaged individuals and groups, ethical and professional issues raised in public interest lawyering and fact gathering and fact management. We were encouraged to draw on real case-work examples and to critically reflect on current legal practices. These seminars provided a supportive environment for us to exchange our ideas on social justice issues.
Informally, we also benefited from the perspectives of numerous invited guests from the legal profession who offered continuing advice on both casework and our law reform projects.
This section provides examples of the application assessment and project work we encountered while on placement and the insights we gained through doing this work.
In order for a request for assistance to be accepted by QPILCH, the matter must come within the ‘public interest’ and there must be a significant prospect that a QPILCH member firm will take up the matter. Accordingly, the matter must have sufficient merit and not involve a conflict of interest for the firm.
Most applications we assessed related to one or more of the elements of QPILCH’s public interest criteria. For example, an application made by an elderly Indigenous woman about her doctor’s alleged medical negligence involved a member of a marginalised group. Two separate applications made by community action groups protesting the effects of an irradiation plant and a major motorway upgrade represented applications involving a large number of people. An example of an application involving a matter of broad public concern was one involving a solicitor’s negligence. Finally, an application regarding a native title claim required legal intervention to prevent a grave injustice.
A simple application of the eligibility criteria, however, is rarely sufficient to make a final assessment of the application. Whether the application is within the public interest necessarily involves questions of legal merit. The ethical duty of fairness precludes lawyers from bringing ‘hopeless cases’ for clients. There are also concerns that the public interest will not be served through the commencement of legal actions which, while not hopeless, have limited prospects of success. Such concerns are reinforced by the limits on resources available to QPILCH. Quite simply, requests for assistance need to be prioritised.
The need for sufficient merit was highlighted in the application of an Indigenous woman for assistance to bring a negligence claim against her doctor for failing to provide culturally appropriate services. The woman claimed that the doctor acted negligently by failing to take account of her Aboriginality and provide a proper diagnosis of her particular condition, which is prevalent in the Indigenous community.
Providing assistance to Indigenous clients is generally considered by QPILCH to be in the public interest. Further, this case had the potential to advance the concept that health practitioners have a legal duty to consider the cultural background of their clients in clinical diagnosis and treatment. However, like many medical negligence cases, it raised issues of causation and proof that would make success in the action unlikely. Accordingly, we were forced to recommend that the application not be accepted..
A number of applications raised the issue of conflicts of interest, which is particularly problematic in pro bono work. The concern for QPILCH is that member firms may not accept referrals because of the perceived risk of losing a large paying client, including government departments and corporations.
The main barrier to large firms’ involvement in pro bono is often referred to as either a ‘commercial’ or ‘positional’ conflict. This expression is commonly used to describe the reason for ‘an unwillingness to act … because of concerns that existing or potential clients will question a law firm’s allegiances’. Unlike a conflict of interest in the sense of professional conduct, however, a commercial conflict presents no ethical barrier to acting for the client. As Wentworth says:
… the real conflict is between the commercial interests of the firm and a desire or stated commitment to provide pro bono assistance. In simple terms, the lawyer is worried that if they act in the matter, their clients will feel that they have somehow ‘changed sides’.
Wentworth argues that commercial conflicts are particularly significant in the current context of heightened competition in the legal services ‘market’ and in terms of access to justice, such commercial concerns are especially problematic. Where the large firms, with the resources to act pro bono, are unwilling to jeopardise relationships with government and corporate clients, individuals in conflict with such bodies may be left unaided:
Positional conflicts, if broadly defined, can have a deleterious effect on the availability of precisely the type of pro bono assistance that is in critically short supply.
One of our applications with a potential conflict of interest involved a nuisance dispute between a resident action group and a state government department in respect of an adjoining motorway. The residents group maintained the department’s decision to use a non-noise abating road surface on a major motorway upgrade had caused considerable interference with their quality of life. The fact that the matter involved a large number of individuals attempting to take on a government department indicated a significant public interest within the scope of the QPILCH guidelines. However, we were concerned that member firms would not be prepared to act given the large amount of government legal work they do.
Any outcome in the applicant’s favour has the potential to have wider impact beyond the parties involved. For this reason, it is hoped that any perceived conflict will be overcome and the matter moved forward with the support and assistance it requires and deserves.
The difficulties associated with potential conflicts of interest also arose in an application for assistance in the preparation of a native title claim. Given that all native title work received by QPILCH will invariably involve applications for assistance by claimants, we are concerned it will be difficult to find a member firm that does not undertake significant work for the pastoral, mining and agricultural industries or government. A further concern is that member firms will be reluctant to take on a native title claim in its early stages given such claims typically require the dedication of large resources over substantial periods of time.
One of the projects we undertook involved a review of Queensland’s coronial process. QPILCH has had a number of inquiries about coronial inquests into the death of family members. The main aim of this project was to assist the preparation of resource materials for family members and legal representatives interested in the coronial process. The research compares the current system with the proposed Coroner’s Bill 2000 (Qld) which has yet to be debated in Parliament. The draft Bill resulted from public interest concerns such as the lack of involvement accorded to the families of deceased people and the inability of coroners to make recommendations in respect of preventable deaths such as deaths in custody.
A modern approach to the coronial system demands the role of the coroner be shifted from a focus on criminal responsibility for deaths to preventing similar deaths in the future. This would require the establishment of a State Coroners Office with the time and resources to meet these ends, and an incorporation of the role of families in the coronial process.
Particularly in respect of indigenous deaths in custody, numerous complaints are received from next-of-kin about not being informed and having little or no role to play. There is a need for ‘an understanding of indigenous perspectives on death, including spiritual causes of death, and indigenous protocols associated with death’.
The second project undertaken concerned the lack of clarity in ‘no win, no fee’ client agreements. QPILCH had referred one notable case to a member firm which resulted in a judicial statement on the limits of such a contract. In light of this recent case and research conducted by students at Caxton Legal Centre, it was determined a standard model contract should be designed that is both fair to clients and commercially viable for firms.
In developing the model, emphasis was placed on ensuring clients are aware of the consequences of entering into such contracts and the facilitation of a more co-operative approach to case management. Concepts such as ‘no win no fee’ were given greater explanation to ensure clients are aware that, in the event their matter is not successful, they may still be liable for the firm’s outlays and the costs of the other party. Many clauses of the agreement provide a range of options to give both the client and the firm a wide scope for negotiation.
The Queensland Law Society has recently issued a ruling that lawyers cannot charge professional fees of more than half of the net award or settlement received by their clients in ‘successful’ personal injury claims. This ruling was incorporated into the model contract, including an example of its practical effect. A cooling off period was also included to provide further protection to the client.
The success of the pilot program demonstrates the QPILCH clinic offers a win/win situation for all participants. From the perspective of Griffith University, QPILCH involvement generates useful links between the profession, the community and the law school. The clinic also gives the university the opportunity to provide a course that gives students practical experience and an orientation towards public interest lawyering.
From QPILCH’s perspective, the clearest advantage of student participation in case assessments has been the reduction in workload we were able to provide. At the time of writing, QPILCH is only in its infancy with limited staff and resources. In these circumstances, students were able to make a valuable contribution, particularly where large and complex files required assessment or the preparation of a brief to counsel for advice. Students promote the work of QPILCH within the university and through their broader community networks. Students also bring a diverse range of experiences to the organisation and provide valuable insight into the further development of a working definition of ‘public interest’ legal matters.
For participating students, the clinic provided the opportunity to gain valuable insight into the political and social framework shaping pro bono work in Queensland. Given we were working through a backlog of applications, we were encouraged by the knowledge that our contributions were valued by QPILCH. We gained invaluable practical skills and, above all, developed our social justice values. This experience has strengthened our desire to base our future careers on facilitating greater access to justice.
In summary, the clinic has been a successful exercise for all parties involved. We would, therefore, highly recommend its continued operation and encourage other universities and students to become involved.
[*] Jenni Clark, Louise Formosa, Paula Rogers, Ben Cochrane, Kate Fitzgerald and Craig Pratt are law students at Griffith University. © 2003 Jenni Clark, Louise Formosa, Paula Rogers, Ben Cochrane, Kate Fitzgerald and Craig Pratt (text)
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