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Dickson, J; Campbell, S --- "Professional Responsibility in Practice: Advocacy in the Law School Curriculum" [2005] LegEdDig 43; (2005) 14(1) Legal Education Digest 13

Professional Responsibility in Practice: Advocacy in the Law School Curriculum

J Dickson & S Campbell

[2005] LegEdDig 43; (2005) 14(1) Legal Education Digest 13

14 Legal Educ Rev 2, 2004, pp 5–42

This article discusses a research project that investigated the feasibility of introducing provisions granting law students a limited right of audience into the various State and federal statutes in Australia regulating the legal profession and procedure in the courts. Several university law schools in Australia are already conducting informal programs in which students represent their clients in defined circumstances with the leave of the court. Thus, the authors were able to base the empirical component of the research on interviews conducted with a number of magistrates, judges and practitioners who have already observed at first-hand the process of student and apprentice advocacy. The research may be understood in the context of two ongoing and intersecting debates in Australia during the past 40 years. These are the debates, first, on the aims, content and structure of legal education and, secondly, on the operation of the legal system and access to justice.

In this research, the authors examined the existing experience of informal student advocacy by investigating the attitudes of judicial officers and legal practitioners who had been involved either as magistrates and judges or as court supervisors. In an environment where public legal aid funds are restricted and the legal profession is increasingly called upon to perform ‘pro bono’ legal services, it is critical that any scheme providing legal services to disadvantaged people meet the same standards of competence and conduct as are required of lawyers for fee-paying clients.

Each State of Australia has legislation that regulates the practice of law in that State. Typically, the legislation prohibits legal practice by anyone other than a qualified legal practitioner and the legislation sets out the way in which a person attains that qualification. Legislation establishing the jurisdiction and the rules of civil procedure of most courts throughout Australia generally contains a provision, almost identical in terms, that a party to proceedings before the court may be represented by a legal practitioner who may do any necessary act in the proceedings on behalf of the party.

It is well established that the courts have an inherent discretion to regulate their own proceedings. Unless statute expressly abrogates the inherent discretion, the discretion coexists with statutory rights of audience granted to legal practitioners and with statutory rights of parties to be represented by legal practitioners. The logical implication from these cases is that a court has the power to allow an unqualified person to appear before it to represent a party to proceedings. However, the courts have been reluctant to exercise that power in favour of unqualified persons.

The question arising in considering a program of student advocacy is how the program might ensure that the student reaches acceptable standards of skill and ethical conduct with the client receiving an acceptable standard of legal service. The informal programs currently operating in Australian law schools are all based within the clinical legal education programs. Where a student is approved to appear for their client in court, the clinical academic supervisor works with the student on the preparation of their court appearance. The student is then supervised in court by either their clinical academic supervisor or another legal practitioner.

The specific aims of the project were to investigate the possibility of introducing a formal scheme of law student advocacy and, if it seemed feasible, to recommend the most effective means of implementing such a scheme. The method chosen was to ascertain the views of members of the judiciary and of the practising legal profession towards student advocacy. All the Victorian magistrates said that the experience of having law students appear before them had been positive and that as a result of this experience they were supportive ‘in principle’ of students appearing in their courts.

In summary, all but one of the magistrates interviewed had a firm view that supervision was a critical component of any student advocacy scheme. They variously expressed their views in terms of the educational obligations to the student and of the ethical obligations to the client. The existing schemes of student appearances are all based on clinical legal education programs within the law curriculum of universities. The types of cases in which students appear are generally restricted to minor criminal matters, adjournments and uncontested divorces. There was unanimity that students should only represent clients who had no access to legal representation other than the duty lawyer service run by the State legal aid organisation. This reflected the limits adopted by the programs experienced by the magistrates. Finally, interviewees were asked their views on the creation of a limited right of audience for law students either by way of legislative amendment or court rule.

While only small in number, the interview group discussed in this section is significant because of its members’ direct experience of student advocacy. It is clear from the responses that the magistrates had thought carefully about the program, its operation and possible limitations. The magistrates’ views appeared to reflect the dual purpose of the clinical legal education program which produced the students. These are education of law students and provision of legal representation to disadvantaged persons.

An analysis of the applicable legislation and case law showed that the principal concern of both Parliament and the courts in restricting the right of audience to admitted practitioners is to ensure a minimum standard of competence and ethical conduct in advocates appearing before the courts. Recent Australian and overseas inquiries have raised the question of how to inculcate a commitment among lawyers to high standards of skill and ethical practice. The overwhelming majority of respondents considered that the student or apprentice advocacy they had observed did meet acceptable standards of competence and professionalism, providing a valuable service to the community. Therefore, in this context it was critical that in formulating their recommendations the authors should design a scheme which ensured the protection of clients through the key issues identified in the research: supervision, limits on the types of cases in which students could appear, and accountability. The model the authors developed includes both a statutory provision and court rules. Legislation establishes the right of audience and the status of the student advocate. In their view, the liability lies primarily with the educational institution and the student’s clinical supervisor, who will hold a current practising certificate. However, where the student is placed with an outside legal agency, liability may properly lie with that organisation and the field supervisor.

Based on the above research, a formal student advocacy program within academic legal education designed to operate within carefully defined limits with the support of the courts and a commitment to the interests of clients and students, offers the opportunity for students to learn and practise professional legal skills supported by systematic supervision.

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