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McCrimmon, L A --- "Mandating a Culture of Service: Pro Bono in the Law School Curriculum" [2004] LegEdDig 34; (2004) 13(1) Legal Education Digest 3

Mandating a Culture of Service: Pro Bono in the Law School Curriculum

L A McCrimmon

[1993] LegEdDig 14; (2004) 13(1) Legal Education Digest 3

[2003] LegEdRev 2; 14 Legal Educ Rev 1, 2003-4, pp 53–76

The primary aim of this article is to explore the pitfalls associated with the underlying assumption that a clinical component in legal education will inculcate a desire, once the student leaves university and enters the legal profession, to fulfill the lawyer’s professional obligation to undertake pro bono work. Related to this inquiry is whether students should be required to undertake pro bono work as a prerequisite to graduation.

The application of the concept of pro bono to the legal profession, and the role of the law school in fostering a culture of volunteerism, are discussed, followed by an analysis of the arguments for and against the institution of a mandatory pro bono requirement in the LLB program. Integral to this discussion is a consideration of the interrelated matter of cost and program structure.

The Australian Law Reform Commission (ALRC) defines pro bono work as ‘legal services provided in the public interest by lawyers for free or for a substantially reduced fee’. This definition informs us that a primary aspect of pro bono work relates to the ultimate monetary cost of that work to the recipient. Both the ALRC and the National Pro Bono Taskforce have identified clinical legal education as an excellent vehicle to instill in students the importance of the pro bono contribution of legal services. However, it is important to keep in mind that, while clinical courses and pro bono projects share common attributes, they are separate and distinct entities.

If the focus is on learning values rather than legal skills, can non-legal community service fall within the definition of ‘pro bono’? The majority view appears to be that such service, while valuable, lacks the application of the legal skills required to bring the activity within the parameters of ‘clinical legal education’. However, if the goal is to inculcate a culture of commitment to public service work following graduation, there appears to be no reason why non-legal volunteer work at an appropriate site should not satisfy the pro bono requirement.

There is little argument that the provision of pro bono legal services is a professional obligation owed by legal practitioners. This obligation rests on four pillars: (1) lawyers, as officers of the court and members of a profession, have a duty to facilitate access to justice by all members of society, including those without the financial resources to retain their services; (2) lawyers have the specific skills and training necessary to provide legal services; (3) lawyers have an exclusive licence to provide legal services, and ‘as a monopolist, should allocate some of monopoly profits to a manifest public need that is related to the monopoly’; and (4) representing the poor exposes lawyers to the impact of the legal system on disadvantaged segments of society.

One might argue on pedagogical grounds that no law course should be required. However, there is no question that the university has both the capacity and the authority to require students to undertake a prescribed ‘core’ of courses as a prerequisite to conferral of the degree. The issue is not whether participation in a pro bono program can be mandated, but rather should such a requirement be imposed. The answer to this question is more complex.

Arguments for and against mandatory pro bono in law schools focus on two aspects of the law school’s mission: (1) the obligations owed by law schools as an institutional member of the legal profession; and (2) the role played by law schools in shaping a student’s values and aspirations.

It has been suggested that law schools, as an integral part of the legal profession, owe a concomitant obligation to perform a type of ‘institutional pro bono’. While these arguments have merit, an institutionalised pro bono obligation can go beyond the provision of legal advice and service to disadvantaged segments of the community. Institutionalised pro bono also includes research and scholarship that benefits the poor and under-represented. Studies support the view that law school is as much a professional socialisation experience as it is a scholarly and skills building enterprise.

Unfortunately, research also suggests that the law school experience plays a significant role in devaluing the importance of public interest work. Given the empirical evidence which indicates that the law school experience likely devalues a student’s commitment to pro bono work, one might conclude that, while mandating pro bono may not help, it certainly cannot hurt. This assessment is seductive in its simplicity. The proposition that exposure to the needs of the poor and disadvantaged will manifest in an ongoing commitment to pro bono service is often based on the following syllogism: (1) empathy can be cultivated; (2) exposing people to the needs of the poor and disadvantaged can facilitate empathy; therefore (3) mandating pro bono service to the poor and disadvantaged will instill empathy and change people’s attitudes about the group as a whole. Empathy can be cultivated and exposing people to the needs of the poor and disadvantaged can facilitate empathy. However, exposure alone will not change a person’s attitudes about the group as a whole.

There is clearly a need for empirical research into the impact of mandated service on law students. It may be that the acknowledged existence of a legal practitioner’s professional obligation to engage in pro bono work may abrogate or lessen the psychological pitfalls of mandated service. Until such research is carried out, we can only speculate. With that caveat in place, a clear lesson to be gleaned from the existing research is that the students’ exposure to disadvantaged or marginalised individuals or groups needs to be handled with great care. Simply participating in a pro bono program while at law school will not necessarily manifest a willingness to engage in pro bono work following graduation.

In Australia, law has been viewed by government and by university administrations as a discipline that can be taught with high student/staff ratios at a low capital cost. Law faculties attempting to shoulder the financial burden of mandatory pro bono programs are in a very difficult position. The development and implementation of such initiatives may require the reallocation of financial and staff resources. In addition to the obvious resource implications of attempting to achieve the low student/staff ratios that the seminars require, faculty involved in program development will need time to do the job properly. This may necessitate a short-term release from teaching, or a reduction in course load.

If the recommendation that all law students be provided opportunity to undertake pro bono as part of their academic or practical legal training requirements is to move from aspiration to reality, the funding pie must be expanded. This will require the coordinated efforts of the major stakeholders — university administrations, law schools, government, the private legal profession and the students themselves.

We can hope that this experience will play some part in motivating students to fulfill their professional obligation to provide pro bono legal services following graduation. It follows that the more students who have an opportunity to engage in volunteer service through participation in a properly structured clinical experience, the better.

Ideally the discussion sessions, and the student’s volunteer work, should be spread over the course of a semester. The educational goals and objectives should drive the structure, not a formulaic adherence to a set number of contact hours per credit point. In addition to the discussion sessions, reflection can be facilitated in other ways. Perhaps the most common is the requirement that students maintain a reflective journal, which is periodically reviewed by the teacher. Peer learning can also be used, for example through the implementation of an email discussion group, an internet chatroom or a cooperative learning group.

Law school is generally a student’s first exposure to the professional obligations associated with the practice of law. The provision of pro bono legal services is a professional obligation owed by all legal practitioners. It follows that a curriculum requirement that fosters a student’s commitment to pro bono work is a justifiable component of the undergraduate law degree. The structuring of such a requirement must be handled with care. If law schools are serious about instituting mandatory pro bono, and a clinical model is used to deliver such a program, adequate long-term funding must be secured. The program must be structured so as to avoid the potential negative impact of mandated service.

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