CLINICAL LEGAL EDUCATION ROLE OF LAWYERS AND JURISTS IN ESTABLISHMENT AND FUNCTIONING OF CLINICS PDF

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! ! ! ! ! ! ! CLINICAL LEGAL EDUCATION ROLE OF LAWYERS AND JURISTS IN ESTABLISHMENT AND FUNCTIONING OF CLINICS ! ! !! ! Submitted by - Mohd. Shahan Ulla B.A. LL.B.(Hons) VII Semester
 ! PREFACE ! The legal education is the basis of an efficient legal profession which is the basis of a well- organize...

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CLINICAL LEGAL EDUCATION ROLE OF LAWYERS AND JURISTS IN ESTABLISHMENT AND FUNCTIONING OF CLINICS

! ! !! ! Submitted by Mohd. Shahan Ulla B.A. LL.B.(Hons) VII Semester


! PREFACE

! The legal education is the basis of an efficient legal profession which is the basis of a wellorganized and sound judicial system. It is directed towards developing the perceptions, attitudes, skills, and sense of responsibilities which the lawyers are expected to assume when they complete their professional education. Unfortunately the legal education was not paid due attention during the British period and even after independence it has been the most neglected branch of the education. It is a matter of pleasure that the Bar Council of India has taken the legal education very seriously and has made commendable efforts for its improvement .One of the pitfalls of the legal education is that it has put less emphasis on the practical training of the subject. This assignment makes an effort to make the readers aware of the historical development of the system if clinical legal education in India and its very importance. The material has been collected from various sources. This assignment contains material on the Historical Approach towards Clinical Legal Education and its establishment and functioning of clinics. I hope it serves as a good and helpful read to all the readers.

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! METHODOLOGY

This assignment has been prepared on the doctrinal type of methodology. The material has been collected from various sources that of articles, books various law journals, newspapers and internet. It contains viewpoint of many jurists and advocates. The material was collected and arranged in order. This assignment emphasizes on the Historical Approach towards Clinical Legal Education in India and the functioning of legal clinics, its importance and objectives. In order to make it an easy and well understandable read the whole assignment has been divided topic wise which individually describe its meaning, and relevant case laws are also given to explain the reader with practical view. In the last section, a conclusion is given that concludes the topic and gives a quick gist of the whole subject.

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! ! ! ! Contents 1. Introduction 2. Clinical Legal Education • Definition • Basic features of the Clinical Legal Education 3. What is Legal Clinic • Types of Legal Clinics • Problem of Legal Clinics 4. History of Clinical Legal Education • National Legal Service Authority • Supreme Court on Legal Aid 5. Legal Aid on Law Schools 6. Development of Clinical Legal Education in India • Delhi University • Aligarh Muslim University • Banaras Hindu University 7. Global Development of the Clinical Legal Education

8. Legal Education Reforms and Law School-Based Legal Aid Clinics in India: Laying the groundwork for Social Justice- Based Clinical Legal Education • Early efforts to link Legal Aid and Legal Education Reform 9. Law School Provisions • The cost of Clinics 10. Role of Lawyers 11. Newsletters • CJI inaugurates 2,648 villages legal aid clinics • Free legal aid clinic 12. Conclusion 13. Bibliography

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ACKNOWLEDGEMENT

! I extend my heartfelt gratitude and sincere thanks to my clinical law teacher Dr. Iqbal Hussain for his encouragement and full cooperation throughout the completion of this assignment. Without his guidance and support this assignment would never have been possible.

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INTRODUCTION As we enter the new millennium, the movement beyond the casebook method to the wider integration of clinical methodology throughout the curriculum stands on a solid intellectual foundation. Yet, although clinical legal education is a permanent feature in legal education, too often clinical teaching and clinical programs remain at the periphery of law school curricula. Doctrine, theory, and skills cannot be appreciated if they are introduced without engaging the pathos of the human issues that the lawyer encounters when representing clients. So little attempt has been made to reflect this relationship that the goals of the legal academy have been called into question. Professor Richard Neumann puts it this way: Because it does not expect itself to produce practitioners, legal education is in some ways closer to graduate liberal arts education than it is to professional education as other professions define it. . . . It would be unthinkable to graduate physicians with no clinical clerkships or architects with no experience in a design studio.1 The term, "clinical legal education" was first used by Jerome Frank, in 1933 in United States in his article, "Why not a Clinical Lawyer School"2 and has since then been the focus of attention for improvement of legal education and for creating a synthesis between the law schools and the legal profession. The legal clinic concept was first discussed at the turn of the twentieth century by two professors as a variant of the medical clinic model. Russian professor Alexander I. Lyublinsky in 1901, quoting an article in a German journal, and American professor William Rowe, in a 1917 article, each wrote about the concept of a “legal clinic.” Both professors associated it with the medical profession’s tradition of requiring medical students to train in functioning clinics ministering to real patients under the supervision of experienced physicians.

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Richard K. Neumann, Jr., Donald Schon, “The Reflective Practitioner, and the Comparative Failures of Legal

Education”, 6 Clin. L. Rev. 401, 404 (2000). 2

81 UPA. L. Rev. 907 (1933).

Clinical legal education is essential to preparing law students to practice law effectively. Clinics are important because they prepare students to practice law by teaching them valuable skills such as fact-finding, investigation, interviewing, and legal research and writing. In the United States, law students learn these skills by undertaking projects or cases on behalf of individuals, always under faculty supervision and guidance. Students also develop a sense of social justice and empathy through their work with disenfranchised groups.Clinical Legal Education (CLE) has been a significant part of legal education since 1960. The first clinic started in U. K. in 1970 and in Australia in 1990s. The concept is fast expanding across the globe also. The clinical method allows students to confront the uncertainties and challenges of problem solving for clients in fora that often challenge precepts regarding the rule of law and justice. To say that the process of learning law in such a textured manner should be relegated to a certain course or set of courses ignores what educational theorists have been saying for years: that the best learning takes place when the broad range of abilities we possess is engaged. According to Professor Barbara Woodhouse, "perhaps one of the most serious failings in contemporary legal education is that all too many students graduate with a vast doctrinal base of knowledge sealed within a context that is not translatable into practice."3 The Clinical Legal Education is necessary to bridge a gap between theory and practice. The aim of this article is to know the various types of Clinical legal Education, its necessity in curriculum and current initiatives and practices in Indian Clinical Legal Education.

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John B. Mitchell, Betsy R. Hollingsworth, Patricia Clark & Raven Lidman, “And Then Suddenly Seattle

University Was on its Way to a Parallel, Integrative Curriculum”, 2 Clin. L. Rev. 1, 21 (1995).

CLINICAL LEGAL EDUCATION Definitions: The Clinical Legal Education can be defined in various ways – “Clinical Legal Education is essentially a multi-disciplined, multipurpose education which can develop the human resources and idealism needed to strengthen the legal system… a lawyer, a product of such education would be able to contribute to national development and social change in a much more constructive manner.”4 “A learning environment where students identify, research and apply knowledge in a setting which replicates, at least in part, the world where it is practiced. It almost inevitably means that the student takes on some aspect of a case and conducts this as it would be conducted in the real world.”5 Prof. Sathe asked the pertinent question, "Is legal education all about imparting skills of lawyering or does it also have to create a commitment to certain values?"6 He opined: “A lawyer is not only a seller of services but he is a professional who renders services for maintaining the rule of law. He is supposed to be an officer of the court. He has to have commitment to certain values such as democracy, individual liberty, social and economic equality including gender equality and concern for the disadvantaged sections of society which will include the poor, women, the physically handicapped, children, the minorities and the Dalit’s. Legal education has to create such a commitment.”

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KuljitKaur,“Legal Education and Social Transformation”

[available at: http://alsonline.amity.edu/Docs/alwjlegkk.pdf] [viewed on: 25/06/2009]. 5

Richard Lewis, “Clinical Legal Education Revisited” Professor of Law, Cardiff University, Wales, United

Kingdom, Pg. 5 , [available at: http://www.law.cf.ac.uk/research/pubs/repository/21] [viewed on: 25/06/2009]. 6

S.P. Sathe- Keynote Address in “ roundtable discussion on community responsive legal education: trends in

South Asia”, November 27-28, 2001, organised by the United States Educational Foundation in India in collaboration with Pune Law College.

The Clinical Legal Education is a term which encompasses learning which is focused on enabling students to understand how the law works in action. This can be done by undertaking real or realistic simulated case work. In early days law is thought as one of the curriculum available to the students. Even though the casebook method was growing in earlier days, there were critics of this method from the beginning. However the first-hand experience method will really educate the law students. The legal education clinics if properly channeled may help the students to gain their knowledge. The use of the word ‘clinic’ prompts the analogy of trainee doctors meeting real patients in their medical clinics. Clinical Legal Education is only one way in which theory and practice can be brought together. Now every nation is giving importance on the clinical legal education in order to groom their future lawyers, the law makers, the executors, law officers, judges and law teachers to acquire knowledge through a scientific method keeping pace with the ethics and philosophy of the society. The objective of the clinical education is radical, reformative and dynamic. The following are the basic features of the clinical legal education•

The students are to experience the impact of law on the life of the people.

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The students are to be exposed to the actual milieu in which dispute arise and to enable them to develop a sense of social responsibility in professional work.

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The students are to be acquainted with the lawyering process in general and the skills of advocacy in particular.

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The students are to critically consume knowledge from outside the traditional legal arena for better delivery of legal services.

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The students are to develop research aptitude, analytical pursuits and communicating skills.

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They are to understand the limit and limitations of the formal legal system and to appreciate the relevance and the use of alternate modes of lawyering.

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They are to imbibe social and humanistic values in relation to law and legal process while following the norms of professional ethics

! A legal clinic (also law clinic or law school clinic) is a law school program providing handson-legal experience to law school students and services to various clients. Clinics are usually directed by clinical professors.7 Legal clinics typically do pro bono work in a particular area, providing free legal services to clients. Students typically provide assistance with research, drafting legal arguments, and meeting with clients. In many cases, one of the clinic's professors will show up for oral argument before the Court. However, many jurisdictions have "student practice" rules that allow lawclinic students to appear and argue in court.89 Clinical legal education may be simply described as learning through application, practice and reflection. It is quite different from the traditional legal education. The lecture- seminar method so common in the education of the law students does not meet the clinical demands, however they are vital as they render vital information being predominantly content and assessment led. Clinical legal education is directed towards developing the perceptions, attitudes, skills and sense of responsibilities which the lawyers are expected to assume when they complete their professional education. It can, therefore, be as broad and varied as the law school curriculum would accommodate; certainly it is not limited to the mere training in certain skills of advocacy. Clinical legal education has wider goals of enabling law students to understand and assimilate responsibilities as a member of a public service in the administration of law, in the reform of the law, in the equitable distribution of the legal services in society, in the protection of individual rights and public.

! ! 7Black's

Law Dictionary, 6th Edition, "clinical legal studies," (St. Paul, Minn: West Publishing Co., 1990), 254.

8Louisiana 9

Supreme Court Rule XXhttp://www.lasc.org/rules/supreme/RuleXX.asp.

Uniform Local Rules Of The United States District Courts For The Eastern, Middle, And Western Districts Of

Louisiana, LR83.2.13, http://www.laed.uscourts.gov/LocalRules/Civil_83.htm.

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WHAT IS LEGAL CLINIC

A legal clinic (also law clinic or law school clinic) is a law school program providing handson-legal experience to law school students and services to various clients.10 Clinics are usually directed by clinical professors. Legal clinics typically do pro bono work in a particular area, providing free legal services to clients. Students typically provide assistance with research, drafting legal arguments, and meeting with clients. In many cases, one of the clinic's professors will show up for

oral argument before the Court. However, many

jurisdictions have "student practice" rules that allow law-clinic students to appear and argue in court. .Clinical legal studies exist in diverse areas such as immigration law, environmental law, intellectual property, housing, criminal defence, criminal prosecution, and American Indian law. Clinical education presents an interesting intersection between the academic and professional environments. Clinical experiences are designed to maximize the student's abilities to perform newly acquired didactic and psychomotor skills in real patient care situations. A college depends upon clinical education centres to provide supervised learning experiences in which the student has the opportunity to apply the principles learned in the classroom. A fully operational clinic is made up of five key components:

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Black's Law Dictionary, 6th Edition, " clinical legal studies," (St. Paul, Minn: West Publishing Co.,1990), 254.

1. The clinic is part of the law school curriculum, and it offers academic credit for student participation in handling cases or projects as well as in a seminar that is taught either before or during the handling of cases or projects; 2. The students work on actual cases or projects, to the extent that local rules for those rules to permit the widest practical scope of the practice of law permit, and with the goal to expand student practice that local conditions permit; 3. The clients of the clinic are generally those who cannot otherwise gain access to legal representation, either due to their poverty, their social marginalization, or the unique or complex nature of their claims; 4. Representation by students is closely supervised by an experienced attorney admitted to practice in the relevant jurisdiction where they appear, preferably a teacher with full or part time status in the law school; 5. Work on real cases is accompanied by a course in the law school, taught with experiential methods such as simulation, role-plays and games, which trains students in the skills, values and ethics of law practice.

! Types of Legal Clinics:

! The aims and objective of each type of clinic are in principle the same. The legal clinics may be divided into three types: 1.

Simulation clinic: Students can learn from variety of simulations of what happens in

legal practice. Ex – moot Court commonplace etc. Cases can be acted out in their entirety, from the taking of initial instructions to a negotiated settlements or Court hearing. Such sessions can be run as intensive courses or spread through all or part of the academic year in weekly slots. Other simulations can range from negotiation exercises, client interviewing exercises, transaction exercises etc. 2.

The In-house real client clinics: In this model the clinic is based in the law school. It is

offered, monitored and controlled in law school. In this type of clinic the clients require actual solutions to their actual problems hence it is called as real client clinic. The client may

be selected from a section of the public. The service is given in the form of advice only or advice and assistance. In this type of Clinics, Clients are interviewed and advised orally or in writing and also helped with the preparation of their cases. The clinic may operate as a paralegal services or a fully-fledged solicitor’s practice. 3.

The out-house clinic: It is a clinic that involves students in exercising legal work

outside the college or university. These types of clinics may operate on the basis of advice giving only. Such agencies are run by trade union councils and other non-statutory bodies. The clinic might take the form of placement also in solicitors’ office or barristers’ chambers. Simulation clinic has several advantages than other clinics. In this type of clinic risk and unpredictability of the real-client work are removed, the same materials are used for many times and hence cost is substantially less than real clinic. The administration of the simulation is very difficult. But all the clinics play active part in Clinical Legal Education and also their objectives and aims are same.

! What is the problem of Clinics?

1. The Integration of the clinic within the law school: Some eminent authors stated that there is a danger that the clinic will become an isolated outpost of the law school, and not absorbed within its mainstream activity. To avoid diversion of students from the rest of their legal teaching, it is important to draw clear links between substantive law courses and work done in the clinic. For example, problems arising in the clinic can be reexamined in other law classes, research can be done on them, and even action recommended. A wide range of teacher involvement is desirable. However, there is no ready-made solution to the problem of integration. 2. Resources: Extra resources must be allocated to the teaching and running of the clinic. This can be another cause of resentment for traditional academics who are less involved in skills teaching, and it is another reason why the support and involvement in the clinic of the law school is ne...