Clinical Legal Education

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INTRODUCTION

“ Justice must become central to the law curriculum, and community-based learning should give the desired value-orientation in the making of a lawyer. Professional education will have to be imbibed with a spirit of social service. There is no better way of inculcating it except through exposing law students to real-life experiences crying out for justice” 1 Chief Justice of the Madras High Court A.P. Shah said while inaugurating a three-day “Southern region cascade programme on law teaching and legal research skills” 2 Besides enabling students to acquire qualities and skills for successful practice, the curriculum should have a multi-disciplinary approach. Students should be made to realize that decisions on legal problems had widespread social, economical and political consequences. Dr. Ambedkar Law University Vice-Chancellor S. Sachidanandam, who presided, said “a well-organized system of justice postulated the existence of a well-equipped bar. The university would do its best to improve the quality of legal education.” The Lt. Governor, Dr. Rajani Ray, laid the foundation of Dr. Ambedkar Government Law College said “upholding of professional ethics and dedication to abide by the voice of social conscience constituted the basic virtues of legal profession, said measures of economic reforms leading to globalization and rapid strides in information technology had opened up demand for a new version of legal competence to resolve problems emanating from modern developments.” 3 Law colleges should make consistent efforts to impart professional training through clinical legal education. It is good that the law college here had adopted all the pilot programmes such as moot courts, mock trials and legal aid programmes in its curriculum. The hosting of moot court competition at national level in the college for selecting a team to represent India at the Philip C. Jessup World International Law moot court competition was a creditable achievement of the college. 11.

The Hindu, 11Dec. Tuesday, 2007

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2. Jointly organised by the Tamil Nadu Dr.Ambedkar Law University, the British Council and Cardiff Law School, U.K.

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The Hindu 8 Feb. 2001

2 She appealed to students and teachers in the college to devote themselves to the cause of promoting legal education and make the institution one of the best and most renowned in the country. It is important to begin by asking whether education should be limited to the development of personal capabilities and skills that enable a person to lead a better life and to earn a livelihood, and whether the wider social purpose of ensuring justice should be left to other agencies directly entrusted with this job? It is the basic premise of this research is that education can be and should be used to promote justice in society. It is believed that only such education is just which not only equips students with the skills required for the profession but which also leads to more just results, practices and attitudes of professionals and decision makers at different levels. 4 For education to become justice education, it must meet three tests: (a) Each course should be formulated to include issues of justice in society (b) The methods of teaching should promotes the basic values of equality and respect for difference, and (c) The .education should equip the student with the theory and professional skills required in the given field of learning. Translating this concept of justice education in the field of legal education means that it is not enough for a law school to impart knowledge and skills required by a lawyer in pursuing the profession, but that education should also sensitize the student to issues of access to justice faced by the deprived sections of society and the impact of law on such sections. 5 Students graduating from law schools spread out to various fields of governance and justice enforcement processes. Law schools therefore have an important role to play and responsibility to discharge for promoting justice through education. 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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. Ved Kumari, Professor, Law Centre I, Faculty of Law, University of D~lhi,

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Revised version of a paper presented at the Commonwealth Legal Education Association Regional Conference 2002, Thiruvananthapuram, Kerala, India.

3 This call for a clinical component to legal education was not an attempt to replicate the apprenticeship system that already existed in many countries, in which students worked outside the law school under the supervision of an experienced practitioner. Instead, it was a call for a new type of education that would offer students the opportunity to experience the realities of legal practice and the context in which laws develop, within the structured laboratory of legal education. In 19976 the Bar Council of India made mandatory a list of 21 courses, which the law schools must teach together with four other compulsory practical training courses at the LL.B. level. , Namely. Jurisprudence. Contract-I, Contract-II, Tort and Consumer Protection Law, Family Law-I, Family Law-Il, Law of Crimes, Criminal Procedure Code Juvenile Justice Act and Probation of Offenders Act, Constitutional Law, Property Law. Law, of Evidence, Civil Procedure Code and Limitations Act, Legal Language and Legal Writing, Administrative Law, Company Law, Human Rights and International Law, Arbitration Counselling and Alternate Dispute Resolution Systems. Environmental Law, Labour Law, Interpretation of Statutes and Land Laws. It is apparent from a perusal of these courses and the methodology prescribed for teaching that these are aimed at providing a large number of professional skills required by a lawyer relegating to the background the wider perspective and aim of ensuring that legal education should lead to just results also. If law in society is all about ensuring justice to all, legal education must ensure that the students develop a critical understanding of various disparities in society that result in denial of access to justice to variety of groups in society. 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?" 7 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 dalits. Legal education has to create such a commitment.” The UGC Model Curriculum has reiterated the same saying" that legal education ought to be a device for Human Resource Development in law with the object of attaining social justice and democratic development.8 6

. LE (Cir. No, 4/1997), . S.P. Sathe- Keynote Address in “roundtable discussion on community responsive legal education: trends in South Asia”, November 27-28, 2001, organiscd by.the United States Educational Foundation in India in collaboration with Pune Law College. 7

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- University Grants Commission, UGC model curriculum law 13 (2001).

4 There is no denying the fact that law students do need training in the practical skills required by a lawyer. However, it is possible to reformulate these courses in a manner that will ensure that students not only acquire the professional skills needed by a lawyer but are also exposed and sensitized to issues of justice for the mass of India's population that suffers from the ills of poverty ,illiteracy and lack of awareness. The 1990s appear to be an interesting decade for liberal democracy and human rights. NGO movements in Asia, Africa and Latin America have become increasingly articulate and assertive in their respective countries, and together, they are influencing policies at the international level too. The U.N. System has to be responsive to this development. The Rio experience and the proposed Vienna Conference on human rights are indicative of this trend. 9 The international funding institutions like the IMF and the World Bank are now seeking involvement of NGOs and the inclusion of human rights protection clauses in their aid agreements with Governments of the Third World. With the extension of economic democracy inevitably resulting from market-friendly structures and globalizing processes, one can reasonably expect rule of law and human rights to be critical factors in world development during 1990s. Most law schools in India confine their activities to professional and post-graduate legal education. There is hardly any institution in the University System which imparts knowledge or training in law to the people generally, to social activists and social workers using legal structures and to bureaucracy involved in administering social justice programmes within the government. With widespread poverty and illiteracy amongst large sections of the rural people. Coupled with difficulties in getting access to justice through courts, this situation tended to result in violations of rights with impunity and in denial of social justice to the poor and the needy. Legal aid committees appointed by the Government have repeatedly pointed out the inequities of the system. They sought the introduction of legal literacy programmes, para-legal training, law reform for the poor, legal aid clinics in law colleges, orientation to the bureaucracy, the legal profession, and the judiciary. Some attempts were made in this direction in some States in India at the instance of the legal aid administration. Law Schools however remained uninterested and legal education continued to turn out law graduates least prepared for the social responsibilities expected of them in regard to social justice and social change. It was in this context, the Bar Council of India which has statutory responsibilities in respect of standards of legal education, decided to set up what they called a model law school which will act as a pace-setter in legal education reforms and in the use of law for social change. The National Law School was established in 1986 at Bangalore as an autonomous institution with a mandate to look at law in a developmental context and to strive for excellence in its programmes and activities.

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Madhava Menon “ In defense of socially-relevant legal education” (1996)

5 The experience of the National Law School experiment during the last five years may be of interest to those who want to support legal education in all its dimensions for the promotion of rights, social justice and democratic governance. The minimum that can be done in the current-scheme of the practical training papers to introduce justice is to frame problems for moot courts on aspects relating to human rights, poverty, discrimination or displacement issues, students to observe cases involving the issues of social justice and violation, of human rights and by including such issues in the instruments to be drafted by them. “Clinical legal education” means education that is experience-based and focuses on appropriate lawyer roles, legal institutions, professional responsibility, and the theory or practice of legal representation or dispute resolution. This craft contemplates a range of skills and values commensurate with the development of professionalism, such as the ability to solve legal problems through various dispute resolution devises, the provision of competent representation, the recognition and resolution of ethical dilemmas, and the promotion of justice, fairness and morality. Clinical Legal Education extends to all fields of law which are taught in the law schools and universities. There are two components of Clinical Legal Education: • •

Moot Court Training and Conducting Actual Clinics.

Apart from lecturers and class-room discussions, CLE essentially includes Moot-Court preparation and role enactments for the law students. Such simulation helps in orienting students towards anticipating Court situations, handling and communicating with the client. It helps them to prepare briefs geared with practical orientation and actual Court room procedures. Moot Court training leads to better interpersonal communication – as students are trained to understand the psyche of clients, judges, etc. Such training leads to sharp reflexes and their presence of mind is language which should show alertness and attentiveness. Moot Court training obviously leads to improved communication skills, improved legal vocabulary, and better comprehension of the issue at hand. Training students through the medium honed by continuous exposure to practical experiences. The students are trained to be thorough professional, client confidentiality, being conscious of their body gestures, facial expressions and body of conducting clinics is another indispensable aspect of legal education. An actual clinic is organized, for example, Lok Adalats on family law matters, Arbitration, Lok Adalats on public utility services, such as water, electricity, transport, etc. Students actively participate in organizing these clinics and learning dispute resolution mechanisms. Clinical legal education is in the midst of an exciting period of growth and development, prompting clinicians around the world to reflect on what clinical education’s remarkable successes over the past forty years mean for its future. One important item on this agenda that has been on the minds of law teachers in India and the United States, among other

6 countries, is the status of clinical legal education’s traditional social justice mission. There has been a link between social justice and clinical legal education in India and the United States since the late 1960s and early 1970s, when modern clinical legal education was first coming into its own and law schools in both countries introduced the new clinical teaching methodology through the establishment of legal aid clinics. Clinical education has always had a broader goal – to teach law students about what lawyers do and to understand lawyers’ professional role in the legal system – but it carried out that goal in its early years almost exclusively in the context of having students provide various forms of legal aid services. Over time, the legal aid dimension of clinical education has been replaced to some extent by a more professional skills-oriented focus as the clinical movement has made important and necessary gains in the legal academy, especially in the United States. Although social justice remains at the heart of many clinical programs, the effort to obtain broad acceptance of clinical legal education by the legal academy and the bar – realized already to a substantial degree in a number of countries around the world – seems often to undercut its traditional social justice mission. In India the Legal education at the graduate level is under the control of the Bar Council of India vide section 7(h) of the Advocates Act, 196 which states that one of the functions of the Bar Council of India is to promote legal education and to lay down standard of such education in consultation with the Universities in India imparting such education and the State Bar Councils. The Council has prescribed the general guidelines for the same including the minimum course content. The subjects which are being taught in most of the Universities are the Law of Contract I, Law of Contract II, Law of Tort and Consumer Protection, Hindu Law (family Law I), Muhammedan Law (family Law II), Constitutional Law of India, Legal Language and Legal Writing including General English Indian Legal and Constitutional History or Trust, Equity and Fiduciary relationship or Bankruptcy Law, Public Interest Lawyering, Legal Aid, Para-Legal Services, Jurisprudence, Law of Crimes, Law relating to Transfer of Property and Easement, Company Law, Public International Law and Human Rights, Labour Law, Administrative Law, Law of Taxation, Professional Ethics and Bar Bench Relations, Law of Evidence, Law relating to Criminal Procedure, Juvenile Justice and Probation of Offenders, Law of Civil Procedure and Limitation, Arbitration, Conciliation and Alternate Dispute Resolution System, Land Law, Interpretation. of Statutes, Environmental Law, Criminology and Penology or Intellectual. Property Law or Law of Medicine, Drafting, Pleading, Convincing, Pre-trial Preparations, Participation in trial proceedings and Moot-Court.

WHAT IS A LEGAL CLINIC ? A legal clinic (also law clinic or law school clinic) is a law school program providing hands-on-legal experience to law school students and services to various clients. 10 10

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

7 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'sprofessors 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 defense, 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 centers 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: 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;

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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.

TYFES OF LEGAL CLINICS To meet the demands of the Indian Constitution, and the Legal Services Authorities Act, and the Bar council of India, an endeavor is made to bridge the gap between the theory and practice and to provide a remedy to the social problems, by Universities, Law Colleges, Bar Associations, Legal Service Authorities, Courts and NGO's who are setting up legal aid clinics. These clinics may be classified as • • • •

Law College Annexed Clinics, Specialist Legal Aid Clinics, Mobile Service Clinics, Outreach Legal Aid Clinics, Community Service Clinics and Alternative Dispute Resolution Clinics.

Clinics that provide an opportunity to law students to gain experience on variety of problems which include labour matters, such as wrongful dismissal, unemployment, insurance, compensation; Consumer Law problems, such as Hire purchase, defective goods, unscrupulous debt collection; Housing problems, relating to ownership and rent control; Family problems, such as maintenance, succession, inheritance, woman's rights, children's rights, aspects of HIV and Aids etc.,· . The college annexed law clinics have an advantage of an association with a university and the supervision of the Faculty of the college, which gives an opportunity to the students to practice in. different areas of law including the emerging areas such as environmental law, IPR, ADR and Cyber laws. Students also have an opportunity to consult experts of the various fields of law.

BENEFITS OF LEGAL CLINICS Who benefits from integrating legal clinics education and community service? Law students:  acquire legal, transferable and personal skills;  develop knowledge of legal rules and procedures in a real world setting;  engage with a range of ethical and professional practical consideration;

9  Have the opportunity to apply acquired theoretical knowledge in an integrated way in a working context;  Develop self confidence and  Are sensitized to the plight of the indigent, creating awareness of broader societal issue issues in their relation to legal problems. The faculty of law  Improves teaching, learning and assessment strategies;  Has an opportunity for research in context as well as interdisciplinary;  Develop links with legal practitioners, government, other service provider and funders;  Obtains inputs from clinicians who are used to be practitioner and  Raise its profile in the community. The community:  has improved access to legal services;  benefits in that goals, set at national level for public interest are defined at clinical level and put into effect and  members are trained through interacting with students and clinicians The organized profession:  inherits better students in terms of ability, experience and value; and  improves its image through pro bono work funding Governmental and its legal aid agencies:     

are assisted in achieving critical educational outcomes; are supported in providing legal aid; gain access to to academic research share in university resources through partnership and benefit from the promotion of careers in the field of social justice.

WHAT IS CLINICAL LEGAL EDUCATION ? Entering the workforce as a new lawyer can be a daunting prospect for any law graduate in any country. From society’s perspective, it can be risky for society to place responsibility for protecting the rule of law in the hands of untrained lawyers. Although law school education immerses students in legal principles, laws, codes, and regulations, applying this knowledge correctly and confidently requires an entirely different set of skills from those required to excel in classes and examinations.

10 Clinical legal education may be simply described as learning through practice, application, and reflection. It is quite different from the traditional legal education. The lecture and seminar method in the law schools to teach the students, does not meet the clinical demands. The aim and object of clinical legal education is to expose the law student in practice and to provide analytical, management and problem solving skills. In fact the clinical legal education is a bridge which connects between theory and practice. What is learnt through books is easily 11 forgettable but not what is learnt through practical experience. Clinical Legal education emphasizes on the student- centered education rather than teacher-based learning. It is the student who actively finds the learning and not the teacher putting the learning on the passive student. The purpose of Clinical Legal Education is not only make a' student a perfect lawyer as a marketable commodity and it also expose him to the social realities, responsibilities. professional ethics, which is known as social-centered education and value education. It is submitted that clinical legal education is essential to the student community and helpful to them in the following ways: 1. To develop the professional skills and practical application of law.

2. To develop research, analytical and communicative skills .

3. To provide necessary experience and exposure to handbook of the cases independently with the SC reliance .

4. To bring the law students Closer to the people who me in need of their professional assistance 5. To focus on social, moral and ethical values to a promising lawyer which are necessary in finding social reasoning in judicial decisions.

6. To motivate the law students by creating a sense of responsibility to serve the community Clinical legal education is an interactive method of teaching law students the legal skills they will need in order to become competent, conscientious, and ethical lawyers. Most consider clinical legal education to have two main purposes. 12One primary goal is to teach 11

“Clinica lLegal Education” by Jaya Kumar

1212.

Ibid.

11 practice skills and professional responsibility to law students by having them generally represent real clients under the watchful eye of professors who supervise the students’ work. The other main goal is to provide legal services to meet the needs of the poor and underrepresented. In the process of addressing those needs, students must consider the practical, ethical, social, and moral considerations concerning law and the legal process. The relative significance of these objectives will depend on the country and the environment in which the clinical legal education program operates. Clinical legal education is different from the traditional method of legal education. In traditional law school teaching methodology, professors lecture law students about legal principles, laws, codes, and regulations. In legal clinics, students usually represent real clients while being supervised by professors who generally are or have been practitioners themselves. These instructors teach the students practice skills such as how to conduct interviews, counsel clients, conduct negotiations, and advocate ethically on behalf of their clients. Participation in legal clinics helps students learn about law through application, practice, and reflection. Clinic students learn how to listen to and communicate effectively with clients, witnesses, experts, adversaries, prosecutors, judges, and other players in the legal process. Their research and writing skills are enhanced, and students develop critical thinking skills and a contextual understanding of the legal process. Clinic teachers prepare the students for working with real clients in a variety of ways. Typically, there is a classroom component in which interactive teaching methods are used to teach the students core skills including interviewing, client counseling, case analysis, negotiation, legal analysis and writing, oral advocacy, and professional responsibility. The classroom component may also focus on the substantive area of law that is the subject of the client representation. A disability rights clinic, for example, might have a classroom component that includes several sessions devoted to learning about the rules and regulations applicable to people seeking government assistance. In addition to the classroom component, students have many opportunities to consult with their supervising professor in order to prepare for real interviews, engage in case analysis, anticipate problem areas, and brainstorm possible remedies. When students engage in actual advocacy on behalf of a real client, their supervisor is available to provide expertise. Feedback is an essential part of the learning process.

HISTORY OF CLINICAL LEGAL EDUCATION The legal education in India particularly in traditional law schools has always been subject to criticism on the ground that it has failed to teach students how to practice law and develop court craft. On the other hand the corporate law schools have also criticized for not providing social context education namely service oriented, community oriented, public

12 interest oriented and ADR oriented education to focus on issues that have an impact on large sections of the society. The present legal education is confined to traditional method of teaching viz., class room lectures, seminars, tutorials, court attendance and moot Courts. It is therefore, necessary to bridge the gap in legal education by strengthening the present clinical legal education offered in the law schools. The concept of dharma, in the Vedic period, can be seen as the concept of the legal education in India. Although there is no record of formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the King through his appointees who in turn were persons of known integrity and reputation of being fair and impartial . The guiding force for the King or his appointee was the upholding of the dharma. The pattern of legal education which is in vogue in India, was transplanted by the English after the establishment of their rule in India. Formal legal education in India came into existence in 1855 when the first professorship of law was established at the Government Ephistone College . As majority of the population was rural and illiterate, the need was felt to bridge the gap between the existing law and the uneducated masses crying for justice, by rendering importance to formal legal education. In the year, 1857 legal education was introduced as a subject for teaching in three universities in the presidency towns of Calcutta, Madras and Bombay. Thus, a beginning of the formal legal education was made in the sub-continent. For almost a century from 1857 to 1957 a stereotyped system of teaching compulsory subjects under a straight lecture method and the two year course continued . The need for upgrading legal education has been felt for long. Numerous committees were set up periodically to consider and propose reforms in legal education. The University Education Commission, was set up in 1948-49, in the year 1949 the Bombay Legal Education Committee was set up to promote legal education. The All India Bar Committee made certain recommendations in 1951. In 1954, XIVth Report the Law Commission (Setalvad Commission) of India discussed the status of legal education and recognized the need for reform in the system of legal education. It depicted a very dismal picture of legal education . It was only from 1958 that many universities switched over to three year law degree courses. It was only by 1967, that it became onerous task for the three year law colleges to include procedural subjects into the curriculum of their law school. The minimum qualification for being an advocate is an LL.B. degree, generally a three year course, which can be obtained after graduation in other disciplines . A debate as to its efficacy in the recent past led to a proposal of five years integrated course after intermediate (10+2) examination. The three year course itself came to be restructured into a semester system and several papers came to be included and excluded as per the Bar Council Guidelines. Hence, the Council today allows both the courses 3 year and 5 year courses to continue. However, the dichotomy between the two courses based on various factors such as professional legal education, mental faculties of students, multi-disciplinary and clinical legal approach to legal education, still continues. Clinical legal education emerged out of a recognition that while a traditional academic

13 curriculum could teach legal principles, it took practical experience to know how to apply those principles correctly and with confidence. 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. This call for a clinical component to legal education was not an attempt to replicate the apprenticeship system that already existed in many countries, in which students worked outside the law school under the supervision of an experienced practitioner. Instead, it was a call for a new type of education that would offer students the opportunity to experience the realities of legal practice and the context in which laws develop, within the structured laboratory of legal education. Although some legal clinics were operating in the United States in the early to midtwentieth century, the clinical legal education concept did not take hold in U.S. law schools on a large scale until the 1960s. Law schools in Russia and Central and Eastern Europe seriously began to consider clinical legal education in the 1990s. One reason for the development of clinical legal education in the 1960s was the general societal focus at that time on civil rights and an antipoverty agenda. Law students were13demanding a “relevant” legal education, one that would give them the opportunity to learn how to address the unmet legal needs of poor people in the communities in which they were studying law. The Ford Foundation saw the value of clinical legal education and funded clinics in their initial phases through the Council on Legal Education for Professional Responsibility (CLEPR). CLEPR grants enabled legal clinics to flourish, and once law faculties, students, and administrators saw the virtues of clinical legal education, law schools began to fund them from their general budgets. Over the past three decades, law clinics in U.S. law schools have evolved from an elective component within a handful of curricula into an integral part of legal education. Most U.S. law schools have clinics, clinical law professors generally have some kind of long-term status within the law school, and students earn academic credit for their participation. Parallel to these developments, clinical law school programs have developed in South Africa, the United Kingdom, and other Commonwealth countries. Countries in Latin America, Asia, and Africa have also developed clinical programs designed to meet their societies’ dual needs for improved legal representation of those who cannot afford to pay for legal services and for more practically oriented legal education. For example, in South Africa in 1983, there were only two university legal aid clinics; by 1992, sixteen of the twenty-one law schools had legal aid clinics. Meanwhile, in Central and Eastern Europe 13

Supra, introduction

14 and Russia, the clinical movement has spread from several experimental programs in the mid-1990s to more than sixty law schools in 2001. Clinical legal education is so well entrenched in some countries that there are associations of clinical teachers which meet on a regular basis to discuss many of the issues this chapter raises. In the United States there is the clinical section of the Association of American Law Schools (AALS), the Clinical Legal Education Association (CLEA), and the Society of American Law Teachers (SALT). In the United Kingdom there is the Clinical Legal Education Organization (CLEO), and in South Africa the Association of University Legal Aid Institutions. In addition, the Global Alliance for Justice Education (GAJE) was started in 1996 to promote socially relevant legal education by forming an internationally active network for the exchange of information and ideas on justice education. The inaugural GAJE international conference was held in India in December 1999, with the second conference scheduled for December 2001 in South Africa.

Clinical legal education in India: A historical overview Clinical legal education, broadly conceived, includes not only the clinical courses strictly so called, but also practice- oriented courses and activities included in or offered outside the curriculum. Before the advocate act came into force, the law students were required to complete certain courses on procedural subjects offered by the state bar councils and acquired practical training for over an year under apprenticeship in the chamber of a senior advocate. The arrangement was un satisfactory because of lack of integration between the university education in law and the practical training. The bar examination and the system of apprenticeship were not organized in a manner to provide the bar council of India, therefore, in consultation with the universities, devised a new curriculum uniformly applicable throughout India under which the necessary practical training was to be imparted by the universities themselves in the course of the 3 years law education. The intention was good: but the performance has been again very unsatisfactory. Under the scheme of legal education introduced in the late 1960s, practical training as such was not included as a compulsory part of LL.B programme. Courses such as civil procedure, criminal procedure, evidence, minor Acts, conveying and pleading were being taught mainly through the lecture method and examined through annual written examinations like other courses. It was possible that a practice orientation was given to the teaching of these subjects by the sheer accidents of being taught by a practicing lawyer employed as a part time teacher. However, part time teacher also adopted generally the lecture method and the student had no active, participatory role obtaining in clinical courses. There was hardly any exposure to legal research and legal writing. In the absence of the case method of teaching and class discussion, even opportunities for developing analytical faculties and reasoning capabilities were inadequately provided I the curriculum. The term clinical education was not even talked about in academic circle or referred to in the literature pertaining to law study. Because of the traditional separation between legal education and practical training, the first remaining with the universities and the second

15 with the bar, it did not appear necessary for law teachers to develop a clinical methodology and integrate it with the law curriculum. The structure and status of legal education obtaining during this time also did not permit the same to be taken as professional training for the bar. The bar council of India, while adopting the rules under the advocate Act for restructuring legal education in 1982, did not appear to have given clear thinking to the nature, content and method of practical training it desired the university to give through its recommended curriculum. Nevertheless, some universities did make an honest effort to impart clinical experiences to LL.B students by organizing moot courts, mock trials, legal writing exercises, advocacy courses and courts visit as optional co-curricular activities. Delhi university In the mid- 1960s, Delhi university introduced the case method of teaching followed by a few other universities. In 1969, a legal services clinic was set up by some teachers and students of Delhi law faculty as a purely voluntary activity mainly to provide legal service to inmates of prisons and custodial institutions. The programmes were developed on ad hoc basis and faculty supervision was marginal. The clinic acted more as an investigating and referral agency rather than as a centre for delivery of services. Students [participation was neither consistent nor was the programme supported by the prescribed curriculum for the LL.B degree. There was no attempt to integrate the clinic with the curriculum expecting perhaps some support derived through the introduction of an optional courses called “ law and poverty” in the second year which carried a clinical orientation. The clinic continued to attract some students every year and it diversified its programmes creating a lively interest in clinical programmes amongst an increasing number of faculty members and students. Every year the clinic organizes a week- long orientation course informing the students of the clinic programmes and encouraging them to participate voluntarily. The programme continues to be voluntary and extra- curricular even today. Delhi legal aid clinic, despite being a purely extra- curricular activity, did accomplish some impressive result during the recent past. Two lok adalats were organized in Delhi in 198586 by the clinic in collaboration with Delhi legal aid and advice board. Over 150 students were involved in this project. Another set of students assisted in reaching legal services to the victims of the Bhopal Gas tragedy. In collaboration with the department of adult and support legal literacy projects amongst the students and teachers of campus law centre now support legal literacy projects amongst the student of several under graduate collages of Delhi university and through those students in as many communities in the union territory. These activities cannot be called clinical education as such. They are not structured that way: nor are they included in the law curriculum. Supervision is marginal. Through they do contribute the learning experiences of a few law students in a clinical setting, they lack the academic frame- work for self directed education. They are more service- oriented programmes which desperately seek academic recognition from the faculty and curricular planners.

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Aligarh Muslim University Aligarh Muslim university introduced in its third year LL.B class a course on “Advocacy” which introduces students to fact investigation, legal research and writing courts procedure, litigation strategies and issues of professional ethics. However, it does not go far in introducing clinical methodology in terms of self- directed learning on the part of students. In1985-86, AMU organized few legal aid camps and helped organize a lok adalat. A legal aid clinic in the law school is said to be working with limited programmes. Banaras Hindu University On the recommendation of the faculty committee, Banaras Hindu university Law school introduced an optional course of “clinical legal education” in the Vth and VIth semester with academic credit for a maximum of 200 marks. The courses are open foe 30 students each year who are selected on the basis of aptitude and performance in written tests. The method of teaching is through lectures and fieldwork. Fieldwork includes court visits, assignment in the law school legal aid clinic socio- legal surveying on specific problems and internship in the chamber of lawyers. A faculty member headed by the dean manages the clinical courses and the programmes. The legal aid clinic was set up in the law school under the supervision of a retired judge who was taken as a part time professor of the school on a token honorarium. Presently there is a faculty member designated as a director of the clinics. Funds for clinic activities came from students’ contribution, then from the national service scheme of the university and later from the university itself. The university grants commission provided special grants for the clinic to expand its legal activities to the neighbouring rural areas. The clinic has its own bus to transport students on the fieldwork. Students shared the required time between the courts, the field and the legal aid clinics office. Each week the students are expected to spend at least one day in the court and report at the office of the assigned lawyer on two occasions. Another day they are required to spend in the legal aid office ding the work assigned by the teacher in charge. The student and the teachers associated with the legal programme go to the village around the city and undertake programme of legal literacy, socio legal survey on the implementation of welfare legislation and attempt conciliated settlement of dispute through legal aid camps. The students keep separate diaries in which they record their experiences, do the written assignments and get the comment of the teachers/ lawyers. The court work is jointly evaluated by the legal aid clinics grades the work of the students in the clinic for the maximum of 50 marks. It is interesting to note that clinical legal education at Banaras law school revolves almost entirely around the legal aid clinic and its projects. Although it continues to function with some success it reflects the troubles from which legal aid schemes generally suffer and it does not receive full faculty support. Further, the clinical opportunities provided are limited to small section of final year students.

17 National Law School of India University at Bangalore The object of the present paper is to explain the concept of Clinical legal education besides highlighting its significance in the law school curriculum. A novel programme of clinical legal education has been introduced at the Bangalore Law School. Therefore, an endeavour has also been made to discuss in detail the various constituents of this programme in the present paper. National Law School of India University was established in the year 1987 and is 'the first law institute in the country which holds the character of an autonomous institution with "Deemed University” from the University Grants Commission. It is perhaps the one of the best examples of Bar-Bench co-operation in the field of law in India today.14 Education at the National Law School is based on a rich heritage of legal thought and tradition provides depth and breadth of instruction which cannot be compared to legal education elsewhere in the country. The object of the school is not just limited to preparing conscientious and competent members of the profession but also disseminate knowledge of law and legal processes in the context of national development. Law is taught to the students from a broader socio-cultural angle and development goals. Legal education is imparted to the students so as to inculcate the sense of responsibility towards the society and respect for human life besides developing in them highest standards of professional behaviour and personal integrity.15 Law is taught as a professional discipline with emphasis on analytical and reasoning abilities as well as on practical skills, with the perspective of law as a sociocultural phenomenon. Keeping in view that legal education cannot be completed with the law school alone NLSIU makes an effort to develop in the student critical intelligence, hun1anistic values and a holistic perception of men and women in human evolution.16 . In the first year curriculum at NLSIU, students are encountered with the vast array of legal problems in the context of varied social, economic and political processes which enables to develop awareness amongst the students towards the non-legal environment of legal issues and its management in the legal regime. The clinical method of legal education is an innovative method of teaching adopted by NLSIU which tries to integrate actual field work with classroom instructions The school endeavours to produce lawyers with a sense of Social responsibility who can face new challenges posed to the legal profession from time to time and orders to achieve this, clinical programme in NLSIU covers a wide range of activities which include simulation exercises, working on real clients problems, legal aid clinical legislative drafting, law reform exercises and a number of other programmes. The broad objectives of the clinical programmes at NLSIU are: 14

NLSIU Bulletin, Bangalore (1995-96) at p.1-13

15

Legal education and the law clinics, in N.R. Madhava Menon. Id, at p.4.

16

18

 To acquaint the students with the lawyering process in general and to equip them. with the skills of advocacy in-particular  To expose the students to the actual social situations in which the dispute arise so as to enable them to develop a sense of social responsibility in their professional work.  To be able to critically consume knowledge from outside the traditional legal areas for better delivery of legal services;  To understand the limits and limitations of the formal legal systems and to appreciate1!:he relevance and use of alternate modes of lawyering; and  to imbibe social and humanistic values in relation to law and legal processes while following the norms of professional ethics. For achieving these objectives, the NLSIU offers wide range of compulsory as well as optional opportunities to students. In the optional course the students are imbibed with the techniques of: a. Moot Court and Mock Trials; b. Law Reforms projects and Competitions; c. Legal aid support activities; d. Placement programmes commencing from the second year of the undergraduate degree course; e. Work in the Centre for Women and Law and Human Rights course; and f. Legal Services Clinic - Rural and Urban. In the category of compulsory courses, there are project assignments, the placement training and three clinical courses which every student has to offer in the final year.17 Under the optional opportunities the students are taught in the following manner: (1) Moot Court: By conducting moot courts, the students are acquainted with the art of researching on a problem that is given to them, and the skills of drafting and arguing the case are inculcated in them. The drafting of the given problem is done by the students and they argue the case. (2) Law Reform Competitions: Another novel and interesting method of clinical legal education available at the NLSIU is this programme. Through this programme, the Law School provides an opportunity to the students of other law colleges, both within and outside the country to learn some of the lawyering skills and to understand the working of the legal system. By conducting Law Reform Competitions, the NLSIU aims to study law by keeping people and community as focus. It is a study which is from the field to the library and not vice-versa as done in the traditional method of law teaching where the students go 'from the library to the field. 17

, Indian Bar Review, 1995, pp.87-94 at p.88

19 (3) Placement Programme: It is a programme which enables the students to learn professional skills and exposes them to legal work. Students are thus made able to compare and critically evaluate the theoretical knowledge acquired in the school with the social realities. (4) Legal Services Clinic and Human Rights Centre: Legal Services Clinic not only aims to help the poor but is also a centre for providing professional education to law students. It works in coordination with other organizations like NGOs and the Karnataka State Legal Aid Board. The clinic caters to the needs of both rural and urban poor litigants. It works both for the poor as well as the non-poor. The clinic has a panel of advocates, besides the regular faculty involvement. Thus, the NLSIU is striving hard to promote excellence in imparting legal education and research. In pursuance of this objective, the University is organizing a Legal Services Clinic in its premises where legal and Para-legal services are offered by the faculty members, students, retired judges, public-spirited lawyers and civil servants including social action organizations. A Legal Aid Advisory Council and Faculty programme Committees administer the activities of the clinic.18 Clinical Legal Education constitutes an important tool for getting practical training on lawyering skills for students of the law school. Hence, NLSIU Legal Services Clinic is not merely an agency for legal services to the people but also a center for professional education for the law students/It works in co-ordination with social work and legal organizations and in conjunction with the Karnataka State Legal Aid Board. The Clinic is founded by the grants from the Central and the State Legal Aid Authorities. The programme of the Clinic includes a number of projects directed towards legal awareness among all sections of the public orientation. programmes for legal and Para-legal functionaries of the system, legal counseling at all the levels including the setting up of Legal Consultancy Chambers in selected areas rendering assistance to Lok Adalats in liaison with the Legal Aid Board etc.19 The .clinic also carries out various other activities like conducting legal literacy programmes for women in various colleges, workers in industries, students in schools, as well as social workers associated with social organizations. The clinic also provides assistance to the law students in their project assignment- Legal writing and research in identified areas. As a part a clinical education, the clinic helps in organizing moot court on socially relevant issues. It also includes law enforcement assistance project legal advice and preventive legal services programme, a law reform project, a public interest litigation support project, a social audit of welfare legislations project, a Para-legal training programme etc. Besides the general legal services programme of the Clinic, the NLSIU curriculum provides for clinical courses on specialized areas of legal practice wherein the students can gather expertise on different branches of law requiring multiple approaches and knowledge from different disciplines. Another important feature of Legal Service Clinic is that the students are put under legal internship during the vacations with the law offices at different places in the country. 18

NLSIU Bulletin, Bangalore (1995-96) at p.16

20

(5) Centre for Women and Law (CWL): The CWL works in close collaboration with the Legal Services Clinic. The CWL working under a Programme Advisory Board (PAR) and an Executive Committee (EC) endeavours to look at law and. the legal process from the perspective of gender justice and administer programmes directed towards equal justice for women in Indian society. The CWL in association with social activists and women's organizations, undertakes various programmes focusing on legal literacy for women, social auditing of welfare legislations affecting women, legal aid and assistance and the development of a Uniform Civil Code for the country. Students are associated with the programmes of the centre in a number of ways extending support services and field assistance. Selected students are allowed to take their project assignments in different courses on topics related to women's issues in law and society. This centre is supported by governmental and non-governmental organizations for funds. Under the compulsory clinical courses there are three clinical courses of 100 marks each. Out of three, two courses are simulation courses. The courses offered are:  Alternative Dispute Resolution Clinic,  Special Clinic; and  Trial Advocacy or Appellate Advocacy. The Alternative Dispute Resolution Clinic is a simulation course. It is compulsory for all the students. It has its focus on client interviewing and counseling, case planning and strategies, negotiation and mediation. The students are made to follow alternate methods to litigation for solving the problems. If these alternate methods fail then only cases should be taken to the court is the principle that is basically practiced. Trial advocacy and Appellate advocacy are another simulated courses. The students can choose one out of these two optional courses. The trial advocacy focuses on the preparation for trial and strategies thereof. It also lays stress upon the techniques of examination and cross-examination of witnesses, argumentation in the court, bail applications, injunction applications and other incidental proceedings. The Appellate advocacy focuses on drafting appellate briefs in civil cases as well as criminal cases, and arguing the appellate briefs. It also lays emphasis on the drafting and arguing of writ petitions and writ appeals. The special clinical course is not a simulated course, but is connected with the real life situations. Every student under the special clinic is placed under the senior advocates so that the students can work on all relevant aspects of advocacy. Though the limitation is imposed by the Bar Council of India, where the law students are not permitted to represent the clients in the courts, it is through such special clinics, that the Law School makes efforts to teach the students about the legal ethics and other aspects of advocacy. Efforts are also made to develop special clinics in the areas where the students can represent the clients’ cases before the appropriate forums like the Consumer Disputes Redressal Forums envisaged and established under the Consumer Protection Act, 1986. Under the special

21 clinical course, students work on the problems of real clients in the Legal Service Clinic or at the Rural Mediation Centre or legislative drafting or any other courses like 'Child and the Law Clinic intellectual Property Clinic and 'Women and the Law clinics etc To sum up, students trained at the NLSIU are not trained as mere degree holders but are trained like the professionals who help in improving the legal profession which is admittedly not in a good shape in the country. It may be appropriate to mention here that since the mid 1970s, the -focus of revamping the legal education has shifted towards modernization of law curricula so as to make it socially relevant and career oriented and the National Law School at Bangalore is the first institute in India where the students study social science and law simultaneously and take three clinical courses before graduation. Many law colleges and law departments have started following the pattern of NLSIU but, even as these colleges are most supportive off clinical legal education, some face financial problems in running legal aid clinic. Confronting to the financial realities of clinical legal education, the administration in most law colleges ask their clinicians to change the methodology of clinical law teaching. Therefore, to remove this problem, more funds ought to be provided to legal institutions, and the Bar Council of India and Law Commission should take notice of this.

HISTORY OF CLINICAL APPROACH IN UNITED STATES OF AMERICA A. The Birth of the Modern Law School and the First Wave of Clinical Legal Education: The first wave of clinical legal education in the United States began in the early part of the twentieth century, shortly after the casebook method emerged in the late 1890's as a popular route to preparing for a career in law. The casebook methods emphases on appellate judicial decisions and the Socratic method as the means to teach the skill of legal analysis were a departure from the three prevailing methods of American legal education in the nineteenth century: the applied skills training method inherent in the apprenticeship system; the general education approach of the prevailing European legal educational model, which was adopted by some colleges and universities in the United States; and an analytical and systematized approach to the law as interconnected rational principles, taught primarily through lectures at proprietary law schools. The single focus on legal analysis in the casebook method became "the objective" and "the structure" of early legal education in the United States and represented early legal educators' "narrow view of legal education. Even though the casebook method was growing to become the dominant pedagogy in law schools, there were critics of this method from the start.

22 While the casebook method was gaining wide acceptance, law students at several law schools in the late 1890's and early 1900's established volunteer, non-credit "legal dispensaries" or legal aid bureaus to provide hands-on opportunities to learn and practice lawyering skills and legal analysis, and also to serve a social justice mission by providing legal assistance to those unable to hire attorneys.19 As early as 1917, one commentator William Rowe - published a law review article advocating law school based clinical legal education as the best way to train law students to become competent lawyers. Prior to writing this groundbreaking law review article, Rowe was the proponent of a resolution adopted by the New York State Bar Association in 1916 that provided: "every law school shall make earnest clinical work, through legal aid societies or other agencies, a part of its curriculum for its full course. In his 1917 article, Rowe discussed law student volunteer affiliations with legal aid efforts, and he argued that these arrangements should be formalized and transformed into a feature of the law school curriculum with faculty involvement. The law schools, he observed, were lagging behind medicine, architecture, engineering, and other disciplines in providing such clinical experiences to students. Most law schools offered only a two-year course of instruction at the time that Rowe was writing, and he foreshadowed some efforts to integrate clinical education throughout a student's law school experience when he wrote: "One year of the clinic is not enough. Indeed, eventually, the clinic may be made a principal medium of instruction in all years for all subjects. That will be the natural and logical development. Rowe advocated a system of clinical legal education in which students would take their clinic cases "to the classroom of the professor dealing with the subject under which the case logically falls. The clinic thus becomes a 'case book' - not, however, of dead letters descriptive of past controversies, but always of living issues in the throbbing life of the day, the life the student is now living. The type of clinical legal education that Rowe promoted most closely resembles a modern externship or perhaps hybrid clinic, in which students are placed with an off-site legal aid office, prosecutor, or public defender, combined with "general classroom work, with 'demonstrations' of current clinical problems, as well as individual instruction and guidance in each case in hand. Rowe also anticipated that the clinic would be overseen by a faculty member "fully prepared to devote himself permanently to the work, [and] who can, with his assistants, agreeably to all concerned, associate himself, if necessary for temporary purposes, as counsel or otherwise, with any lawyer whose office or business may become connected with the clinic. In 1921, the Carnegie Foundation for the Advancement of Teaching funded a study on legal education, commonly called the "Reed Report" after its non lawyer author, Alfred Z. Reed.20 The Reed Report identified three components necessary to prepare students for the practice of law: general education, theoretical knowledge of the law, and practical skills training. The emphasis on legal analysis in the casebook method fulfilled only one of these three objectives by providing students with a theoretical knowledge of the law. To satisfy 19

These volunteer legal aid bureaus were established by law students at schools such as Cincinnati, University of Denver, George Washington, Harvard, Minnesota, Northwestern. 20 Alfred Z. Reed, Training for the Public Profession of the Law (1921).

23 the requirement of a general education component, the Reed Report called for at least two years of pre-law college training - a proposal the ABA promoted, starting in 1921. At that time, not a single state required a university-based law school degree as a precondition for admission to the bar, proprietary law schools were still prevalent, and apprenticeships still provided the basic legal training for many entering the legal profession. In the midst of this highly unregulated climate for entry to the legal profession, the Reed Report's recommendation of practical skills training was not vigorously pursued by law schools. In the wake of Rowe's early efforts to integrate clinical education into the law school curriculum, and the Reed Report's call for practical skills training, John Bradway and Jerome Frank pioneered the cause of clinical legal education methodology in the 1920's through the 1940's, advocating an in-house clinic as an essential component of sound legal education.21Yet, despite the efforts of Bradway and Frank, only a handful of law schools instituted in-house clinical courses through the first half of the 1900's.22 The dearth of clinical legal education programs in the first half of the twentieth century reflects several conditions that law schools faced in that era. First, law schools were distinguishing themselves from apprenticeships, and clinical legal education efforts to create "model law offices" as part of law school education did not further this market differentiation. Second, law schools of this era were terribly under funded and clinical legal education courses with intensive faculty supervision were not as economical as large classes employing the casebook Socratic method. Third, law school teachers of this era disagreed about the value – and feasibility - of teaching lawyering skills other than legal analysis. For example, a 1944 Report of the Association of American Law Schools (AALS) Curriculum Committee, primarily authored by Karl Llewellyn, noted that the "current case-instruction is somehow failing to do the job of producing reliable professional competence on the by-product side in half or more of our end product, our graduates.23 Fourth, the period from the 1920's to the 1940's was marked by ABA holding of a case (legal analysis); the ability to form principles from the study of the holdings of a case (legal synthesis); the handling of complex fact situations (legal diagnosis); the ability to interpret statutes and regulations; and the ability to apply legal principles to the solving of problems (legal solution). Most of the standards focused on requiring pre-legal college experience for all prospective law students, lengthening law school to at least three years of full-time study or four years of part-time study, requiring more full-time law faculty, creating standards for law libraries, and increasing the number of states requiring legal training in 21

See generally John S. Bradway, The Beginning of the Legal Clinic of the University of Southern California, 2 S. Cal. L. Rev. 252 (1929) 22

The University of Southern California, through the efforts of Bradway, established an experimental six-week clinical course as early as 1928. 23 AALS Proceedings 168 (1944), quoted in Stevens, supra note 1, at 214 (emphasis in original). A subsequent 1947 AALS Committee on Teaching and Examination Methods identified the following skills as implicit in the phrase "thinking like a lawyer

24 ABA approved schools as a precondition for admission to the bar and AALS efforts to create and raise standards for law schools, and none of these standards focused on encouraging or requiring clinical legal education experiences.24 These four factors combined not only to limit the number of clinical programs but also to stunt the growth of clinical pedagogy by limiting the number of law faculty teaching clinical courses. By 1951, the value of "legal aid clinics" affiliated with or operated by law schools had become "one of the current controversies in legal education.25 Robert Storey, then the Dean of Southern Methodist University School of Law, summed up the feeling of some legal educators when he lauded the "clinical method" for exposing "the student to actual problems confronting him with actual people who are in actual trouble26 and for furthering "equality of justice" by helping to set up "an adequate system of legal aid offices. Yet, in spite of Dean Storey and others who promoted clinical legal education in the 1950's, clinical legal education was in a holding pattern. In the 1950's, there was no single vision of clinical legal education and the concept of a law school "legal aid clinic" encompassed any "law school sponsored program for law student work on legal aid cases. A 1951 study of clinical programs identified twenty-eight clinics run by law schools, independent legal societies, or public defender offices. At five schools, a clinical legal education experience was mandated, but most schools offered clinics as electives or extras curricular activities. The work assigned to students varied among programs, but typically included client and witness interviews, drafting pleadings, and preparation of legal documents. Some programs gave students the opportunity to negotiate matters with clients' creditors, and at least nine law school clinics provided opportunities for trials and other court appearances. Most clinics attempted to have students work on cases from beginning to end. Student supervision was cited as a "major problem," and the task of supervision was often delegated to experienced students, who supervised less experienced students. At ten of the twenty-eight law schools with some form of clinical program in 1951, students did not earn any academic credit for their work. At four schools, clinic credit was available as part of a student's credits for a general course on legal practice. At the remaining fourteen schools, students only earned between one and three hours of credit for clinic work. By the end of the 1950's, thirty-five law schools reported "some form of legal aid clinic. In thirteen of these law schools, legal aid clinics were located inside the schools. In a few law schools, all or most law students were required to do some legal aid work27. In fifteen 24

Most of the standards focused on requiring pre-legal college experience for all prospective law students, lengthening law school to at least three years of full-time study or four years of part-time study, requiring more full-time law faculty, creating standards for law libraries, and increasing the number of states requiring legal training in ABA approved schools as a precondition for admission to the bar. 25

26

Quintin Johnstone, Law School Clinics, 3 J. Legal Educ. 535, 535 (1951).

Robert G. Storey, Law School Legal Aid Clinics: Foreword, 3 J. Legal Educ. 533, 533 (1951). 27 The 1959 Report of the AALS Committee on Legal Aid Clinics stated that legal aid clinic work was required at Ohio State University College of Law and at Franklin University School of Law,

25 law Student Lawyer schools, students were able to earn limited academic credit for clinic work. In only five law schools, supervising faculty were able to receive teaching credit for their clinical courses.28 Although the number of clinical legal education programs increased slightly from the late 1940's to the early 1950's, the late 1950's ended on a note of relative stagnation for the nascent clinical legal education movement. There were several different models of clinical programs, and no generally accepted definition or description. Schools defined "clinical" programs to include both credit-earning and non-credit-earning real-life experiences for law students either in programs located within the law school or offsite at legal aid or public defender offices. The level of faculty involvement and supervision varied greatly, and clinical experiences existed on the fringes of the law school curriculum. The limited growth of clinical programs during this decade may reflect the fact that clinical instruction was only one of several experiments under way to address perceived deficiencies of the casebook method. Some of the other "experiments" included simulated trial practice courses, legal research and writing courses, drafting courses, and subject matter seminars based on simulated problems. Notwithstanding these "experiments" – many of which are now standard fare in virtually all law schools – the 1960's witnessed continued complaints by law students and some law faculty about large classes, the dominance of the casebook method, and the lack of writing opportunities. Of all the curricular experiments since the introduction of the casebook method in the late nineteenth century, "the concept of clinical legal education was to prove the most important. In fact, clinical legal education is "so often called the most significant change in how law was taught since the invention of the case method that it now sounds trite.29 B. The Maturing of the Modern Law School and the Second Wave of Clinical Legal Education During the second wave of clinical legal education - a period spanning from the 1960's through the late 1990's - clinical legal education solidified and expanded its foothold in the academy. The factors that contributed to this transformation included demands for social relevance in law school, the development of clinical teaching methodology, the emergence of external funding to start and expand clinical programs, and an increase in the number of faculty capable of and interested in teaching clinical courses. Perhaps the most powerful of these factors was the zeitgeist of the 60's, which produced "student demands for relevance."42 In reflecting on the growth and direction of clinical legal education, Professor Dean Hill Rivkin has noted: “It was the societal legacy of the sixties . . . that most shaped clinical legal education. The fervor of the sixties penetrated law schools quite passionately”.30 28

Those five law schools were Duke University School of Law, which discontinued the practice in September of 1959, Indiana University School of Law at Indianapolis, Southern Methodist University School of Law, University of Tennessee, and University of Texas School of Law. 29 Philip G. Schrag & Michael Meltsner, Reflections on Clinical Legal Education 5 (1998). 30

Symposium: Clinical Legal Education and the Legal Profession, 29 Clev. St. L. Rev. 1 (1980); Symposium: Clinical Legal Education: Reflections on the Past Fifteen Years and

26

(1) The Social Justice Dimension of Clinical Legal Education The earliest forms of clinical legal education embraced the dual goals of hands-on training in lawyering skills and provision of access to justice for traditionally unrepresented clients. Initially, the legal realism movement of the 1920's and 1930's provided support for the goal of teaching lawyering skills and professional values in law school legal aid dispensaries. Legal realists like Llewellyn and Frank advanced the view that students must learn about law as a means to an end rather than as an end itself. Thus, it is no surprise that Llewellyn and Frank were early advocates of clinical legal education. In 1965, a proponent of clinical experiences in law school noted the demands for relevance in legal education and "a desire on the part of a significant number of law students to help make the law serve the needs of the poor. This sentiment, present since the earliest law student volunteer "legal aid dispensaries," blossomed in the design of most clinical programs during the 1960's-70's. These clinical programs provided representation to indigent clients with a myriad of legal problems. Many of these programs also responded to the call of Professor Arthur Kindy to take on major cases and situations involving the relationship of the processes of the law to the fundamental problems of contemporary society provide a fascinating teaching tool for probing into the most fundamental theoretical, substantive, and conceptual problems, all within the context of the throbbing excitement of reality. In building upon the earlier clinical programs, clinical faculty during the second wave expanded clinics to demystify law for students and to represent client communities with claims that thrust clinical programs into the civil rights, consumer rights, environmental rights, and poverty rights movements. During this same period, the Critical Legal Studies (CLS) movement grew out of the earlier legal realism movement in legal education.31 While clinical teachers were working with law students to use the law as an instrument for social justice and change, proponents of CLS were using the classroom to demystify the law and to teach students that "political conviction plays an important role in adjudication and that the shape of the law at any time reflects ideology and power as well as what is wrongly called 'logic." '47 However, unlike some CLS adherents whose critique of law and the legal system leads them to skepticism or nihilism, clinical faculty struggled to maximize law's potential for remedying injustice and inequity. Professor Martin Guggenheim points out that this focus on social justice is important "not only because of its effect upon clients but also because of its effect upon students."49 Clinical courses expose students not only to lawyering skills but also the essential values of the legal profession: provision of competent representation; promotion of justice, fairness, and morality; continuing improvement of the profession; and professional selfdevelopment.50 These professional values are taught and at the same time thousands of clients receive access to justice through clinical programs. In this way, clinical programs meld legal theory with lawyering skills, and students learn lawyering values by providing Aspirations for the Future, 36 Cath. U. L. Rev. 337, 340 (1987) (remarks of Dean Hill Rivkin). 31 "Critical legal studies resembles the older movement of American legal realism, and it is too early to decide whether it is more than an anachronistic attempt to make that dated movement reflower." Ronald Dworkin, Law's Empire 272 (1986).

27 legal assistance to clients who would otherwise lack access to justice. As Professors Philip Schrag and Michael Meltsner observed: Hundreds of thousands of low-income clients have been well served by clinic students. Although this magnitude of assistance is very low compared to the need of indigent people for legal services, in most cases the value of the service to clients has been incomparable: avoiding homelessness, avoiding or reducing time in prison, obtaining disability benefits, securing the right to remain in the United States, obtaining safety from a threatening spouse. The social justice dimension of the practice of law and other professional values can find expression in other parts of the curriculum as well. Yet, too few traditional courses explored social justice issues in the latter part of the twentieth century, and those that did rarely explored the relationship between lawyers' pro bono responsibility and their obligation to improve the legal system. Rarer yet were law schools in which the curriculum as a whole reinforced these professional values.32 In these respects, law school curricula even at the start of the twenty-first century generally fell short of the ABA Standard that law schools "should encourage and provide opportunities for student participation in pro bono activities. The approach many lawyers continue to take toward their professional duties reflects the general lack of emphasis on social justice and public service in their law school experience. The legal profession perpetually struggled with its obligation to respond to the unmet need for legal representation throughout the twentieth century. Some called for mandatory pro bono service while others objected to it as forced labor or because they simply were afraid that the time demands would be too onerous. The pro bono debate was replayed for several years, with the most recent ABA iteration coming in the form of its Ethics 2000 recommendation that the matter required further study. Current competitive demands, evidenced in part by the high salaries paid by many large law firms, suggest that mandatory pro bono service will lose even more ground as existing pro-bono service, such as it is, gives way to the pressure to increase billing. As we enter the third wave of clinical legal education, law school clinics continue to play an important role in making access to justice a reality for many low-income people. They do so not only by exposing law students to the legal problems that the poor face but also by allowing students to experience what amounts to a "tactile" connection with the obligation to find substantive and creative ways to respond to unmet legal needs. The result should, at a minimum, lead to greater commitment by clinic graduates to work toward a resolution of the legal services problem. The goal of educating students to this responsibility for assuring access to justice is best met if such education permeates the curriculum. Each law school course should raise issues of access to justice, with clinical courses exposing students to the reality of how these issues play out in the lives of indigent clients and the systems currently used to address their needs. If law schools are truly committed to professional values, then these values must be discussed in every class and not simply relegated to clinical courses. 32

There are some exceptions. For example, the David A. Clarke School of Law in the District of Columbia (DCSL) is explicitly dedicated to public service and graphically demonstrates

28

(2) The Development of Clinical Teaching Methodology While student demands for relevance in the law school curriculum and the social ferment of the 1960's played an important role in spurring the growth of clinical programs, it was the development of a clinical teaching methodology that was critical in solidifying the place of clinical legal education in the law school curriculum during the period running from the 1970's through the present. Clinical scholarship started to burgeon in the second wave of clinical legal education during the 1970's and early 1980's. The clinical scholarship of this era broke new ground by exploring lawyering skills and clinical teaching methodology, thereby moving the dialogue far beyond the earlier scholarship of Bradway, Frank, and others who primarily focused on the general concept of using real cases to teach law students. Until the mid1970's, there was no common understanding of what was meant by clinical legal education and no serious effort to construct a vocabulary for discourse. As Professor Gary Bellow observed, the term clinical legal education applied "to any law-related activities in which students engage outside the classroom, as well as a number of traditional law school activities, i.e., legal research, moot court, even appellate case analysis.33 Without a commonly understood pedagogy, clinical legal education was too amorphous to take firm root and spread to every law school. In the 1970's and 1980's, Bellow and others started to construct a "common vocabulary of discourse on educational issues."57 By focusing on clinical education as a method, clinicians began to explore what clinical teachers were and should be doing, how clinical teaching methodology could be infused throughout the law school curriculum, and what the purposes and goals of clinical teaching should be. Important early examples of clinical scholarship focused on clinical methodology, what it meant for students to assume and perform the lawyer's role in the legal system, how to identify and teach the elements of various lawyering skills, how to develop and explain theories of lawyering, how to refine and improve the supervisory process, and how to incorporate experiential learning theory into clinical law teaching. Clinical scholars explained that the primary goal of clinical legal education should be to teach students how to learn from experience. Clinical faculty began to focus on how they could Learn from their experiences as lawyer-teachers and as lawyer-scholars. They began to work with their students to explore the theoretical underpinnings and practical dimensions of lawyering skills and professional values. To help students develop the skill of self-reflection, clinical faculty critiqued them and encouraged them to employ selfcritique, "a process described by Donald Schon as 'reflective practice' or 'reflection in

33

Gary Bellow, On Teaching the Teachers: Some Preliminary Reflections on Clinical Methodology, in Council on Legal Education for Professional Responsibility, Clinical Education for the Law Student: Legal Education in a Service Setting 374, 375 (1973).

29 action.’34 As a result, by the late 1980's, there was general agreement with the observations in the Report of the Committee on the Future of the In- House Clinic that: Clinical education is first and foremost a method of teaching. Among the principal aspects of that method are these features: students are confronted with problem situations of the sort that lawyers confront in practice; the students deal with the problems in role; the students are required to interact with others in attempts to identify and solve the problems; and, perhaps most critically, the student performance is subjected to intensive critical review.35 Equipped with a "common vocabulary" and a generally accepted definition of a methodology, scholarship about clinical teaching blossomed in the latter part of the 1980's and throughout the 1990's. During this period, and in large part because of this scholarship, clinical legal education gained a more permanent place in law schools. The emergence of a critical mass of teachers interested in thinking and writing about clinical methodology also led to the founding in 1994 of the Clinical Law Review under the auspices of the Clinical Legal Education Association (CLEA), the AALS, and New York University School of Law Building upon the theoretical bases explored by clinical scholarship and the social justice and skills bases of client representation, clinical programs are thriving and moving forward into the future. Still, clinical programs continue to face some questions about their financial viability that have persisted since the emergence of clinical legal education. II. Defining and Refining the Role of Clinical Studies in the Law School Curriculum 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. As the legal academy sought to establish its academic credentials through the casebook method, it turned a cold shoulder on the profession it exists to perpetuate. The analysis of legal doctrine as presented in appellate decisions digested in casebooks, which continues to frame most classroom discourse, limits the type of intelligence prospective lawyers develop. Much of the doctrine so laboriously dissected will change before the student passes the bar or will be of marginal consequence in practice. The real value of the casebook approach and the justification for its dominance in legal education lies in its efficiency in illustrating the contours of doctrinal development, which in turn provides the principles used in teaching the process of legal thinking. However, the attempt to make law accessible, or pure, by reducing it to an abstraction has created a gap in the instruction students receive. The course of instruction typically preempts any discussion of how lawyers operate within the legal system and any serious examination of the role lawyers 34

35

Donald A. Schon, Educating the Reflective Practitioner 31-36 (1987).

Report of the Committee on the Future of the In-House Clinic, 42 J. Legal Educ. 508. 511 (1992). The Report was completed in 1990, and it was circulated widely to clinical teachers.

30 should play in solving problems. The result, with too few exceptions, is a profession that is damned by the public and depressing for its members. The dichotomy between doctrinal analysis and theoretical considerations on the one hand and practice on the other is unfortunate, since each has an important role to play in a sound legal education. 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.” As Professor Anthony Amsterdam points out, such criticism - although certainly valid – conceals an even more fundamental critique. Employing a literary device of looking back from a twenty-first century perspective (a process of pure speculation when Amsterdam wrote in 1984), he said that twentieth century legal education was too narrow because it failed to develop in students ways of thinking within and about the role of lawyers-methods of critical analysis, planning, and decision-making which are not themselves practical skills but rather the conceptual foundations for practical skills and for much else, just as case reading and doctrinal analysis are foundations for practical skills and for much else. Amsterdam thereby brought into focus a perspective that has informed much of the discussion ever since. The central task of a law school teacher, as he recognized, is to engage students in understanding the demands of the role they are seeking to undertake, instead of creating a chasm between education and professional application. For example, breaking doctrine into categories such as torts, civil procedure, property and so on, provides a useful ordering system for learning new material. However, teaching law without giving students a feel for the confluence of these categories in addressing client interests instills a fractured understanding of how to approach legal problems that is hard to overcome.36 As Amsterdam points out, a basic failure of the current system of legal education is the assumption that preparation for the profession is achieved by teaching students "a selfcontained body of instruction in the law. Little attention is paid to synthesis, either of bodies of substantive law or lawyering techniques that might help the student understand how the law lives and the lawyer's role in bringing it to life. Law schools generally do not do a good job of teaching students how to gather and digest facts that are not neatly packaged; identify the range of solutions, legal and non-legal, that might apply; determine what the limitations of a given forum might be and determine how best to work within that 36

The habit of approaching law in this way, like the reflex of a martial artist, should be taught throughout the educational process so that the approach is fluid.

31 forum; counsel a client; and negotiate with an opponent. The occasional exposure to these skills in what are isolated and generally optional courses does not achieve the integrated learning experience that students need. Lawyers, and thus law students, must learn to "solve problems, synthetically and creatively, as well as analytically. Yet law schools typically assign the highest, and almost exclusive, priority to analyzing substantive law. Although some legal educators have sought to broaden the relatively narrow focus of the casebook method, law schools have resisted serious application or even investigation of the broader conceptual foundations that Amsterdam described.78 This is not surprising given the premium that law faculty generally place on scholarship focusing on theoretical and doctrinal analysis. In the typical law school classroom, the world of practice is often regarded with suspicion and sometimes even disdain. This is so, despite severe criticism decades ago, recommendations from the practicing bar and the judiciary83 to better prepare students for the profession,84 and even market indicia of a preference for teaching a broader range of skills. That such criticism has not led to significant changes is due in part to a fundamental sense among those in practice, the judiciary and the academy that their professional careers developed from and are legitimized by the very same educational approach that is being challenged. Furthermore, the strategy of focusing almost exclusively on analytical skills as taught through the casebook method works well for the first step a law graduate must take - the bar examination - and it is consistent with the ABA's accreditation requirement that schools should establish programs that qualify their graduates for admission to the bar. What this strategy overlooks is the ABA requirement that students be prepared for participation in the legal profession.37 Bar examiners are recognizing that these two objectives should not be in conflict. There is significant movement toward testing more of the skills that lawyers should possess prior to entry to the bar. However, development of more competent professional education will be hampered until the apparent trend towards more professionally relevant testing is refined. In the new millennium, law school clinics cannot continue to be the repository for the many aspects of lawyering that are excluded from substantive law courses taught with the case book method. The aim, already expressed by some, should be to incorporate clinical teaching methodology into non clinical courses to teach lessons that will be further developed and reinforced by in-house clinic and externship experiences. The clinical method allows students to confront the uncertainties and challenges of problem solving for clients in for a that often challenges 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.92 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. 37

ABA Standard 301 was revised in 1997. Previously, the standard was satisfied if a school had an educational program designed to qualify graduates for admission to the bar and prepare them for their participation in the profession.

32

In the past twenty years, law schools have started to develop new models and approaches for integration of clinical methodology throughout the law school curriculum. These models – which should continue to evolve in the new millennium – represent significant strides in the directions that Professor Amsterdam advocated.

Harward Law School History In 1970 , the late Gary Bellow and Jeanne Charn proposed that Harvard Law School help create a legal services center, called the Legal Services Institute, in Boston to provide improved legal services for the urban poor and continuing clinical education for attorneys and law students entering the field. Bellow and Charn. together with four other organizers, including a professor from MIT, two Boston attorneys, and Katherine Stone, 2L, submitted a proposal for the Institute to the Legal Services Corporation for funding in conjunction with the Greater Boston Legal Services office. The Harvard Law faculty unanimously approved the proposal. The curriculum initially focused on legal services and poverty law and drew heavily from case work at the Institute. Students participating were and are closely supervised and evaluated individually. Bellow believed that one of the strengths of the Institute is the teaching function performed by all Institute staff members The legal Services Corporation funding was terminated two years into the original four-year grant. From 1983 to 1985 the Institute (renamed the Legal Services Center) struggled, as did many other clinical program, after the decade of CLEPR support to survive. However, the law school eventually made the decision to support the Center as its primary civil practice facility with a capacity for up to seventy-five law students. Supervised in ratios averaging no more than five students per full time staff attorney or paralegal. By 1991, the end of the second decade of Harvard's clinical program, the original funding ratio for the Centre had been reversed with the law school providing about three fourths of the Center's operating budget and the: balance provided from Boston based public legal services funds. While cost is high. situating clinical practice centers within the law school has generated support from law school alumni of Harvard Law School at the Boston law firm of Hale and DORR contributed $2,OOO,OOO to the law school to purchase and renovate a permanent home for the Center Equally Important, this gift marked the beginning of collaboration in which, every year, associates and the partners at the firms donate hundreds of hours to the clients and educational program of the Center HALE AND DORR ATTORNEYS AND paralegals provided the expertise to develop the Center's practice capacity in estate planning ,small business, intellectual property and housing

33 development and regularly consult or co-counsel with staff and students on a wider range of cases. They also model for our students the ways in which attorneys in the most prestigious and highly-paid sectors of the bar can contribute to the public good by making legal services more widely available. About the Legal Services Centre : Located in Boston's culturally diverse Jamaica Plain neighborhood, the legal Services Center is a general practice law firm that provides legal counsel to over 1200 clients annually, some of whom are very poor, but many of whom can and do make co-payments or pay on a lower-than –market basis for the service they receive. The Center, Harvard Law School's oldest and largest clinical teaching facility, offers students a opportunity to gain practical legal experience and earn academic credit by handling real cases for real clien1 under the supervision of Clinical Instructors who are experienced practitioners and mentors. The centre sponsors up to 70 students each semester through several clinical courses offered at HLS and, during the summer, sponsors a program for volunteer la\v students from across the country. Clinic History: Mark Wilson, a Clinic Program Founder states “One learns to be a good lawyer by being a lawyer. It's one thing to intern in a private firm where the student is the assistant. But in the Clinic, the connection is between the student and the client”. Mark Wilson right now is working as a faculty supervisor at the Clinic six months out of the year. Actually starting this year he had gone to a part-time position at the Clinic. Although, over the years he taught a number of classroom courses as well as teaching in the Clinic, the latter has always been his favorite. He like being a lawyer as well as working with students, and this gives him a chance to do both. He wants to do that into the foreseeable future. He had been here now since late 1974. Along with him his close friend and colleague, Jeff Hartje, set up the Clinic in 1975 - that's what they were hired to do. What they created back then, called University Legal Assistance., has morphed into what they have here today. About 1975 and setting up the Clinic: Mark Wilson was the Director of Training for the Pennsylvania Legal Services Center - a state\vide legal services program in Pennsylvania - with the responsibility of setting up training for beginning and more advanced lawyers working around the state of Pennsylvania. He came here in late 1974 and was joined by Jeff Hartje, a friend and colleague from Minneapolis, in early 1975. They actually set up the first Clinic down in the Yakima Valley, in June of 1975, to work with farm workers.

34 That Clinic continued for a couple of years. In the fall of that year they then created the oncampus Clinic, University Legal Assistance. During those initial years, there were some cult times. Legal clinics were new to law schools. Today, virtually every Jaw school in the country has a legal clinic of one kind or another but back then it was a new idea [and not everyone in the community was supportive]. One of the things they had stolen is that they could defeat their opponents by outliving them - and gradually, they did'

Who was the first to say "Let's found a clinics”? In '74 and '75 the law school had a very, very politically active Student Bar association. The impetus for creating a legal Clinic came from them. In the early years a significant amount of funding came from the Student Bar, as well. Significant in the sense that it was a lot of money to the students, about tens of thousands of dollars. On into the 70's the Student liar Association was a major financial and emotional supporter to the clinic. After that there had been a success in the early and mid 1980's in getting a number of grants from state, federal and local governments, and the Clinic functioned on those external grants that totaled several million dollars over the years. Then in the 1990's those sort of dried up - especially at the federal level. Then the Law School just internalized the budget into its own budget; Clinic's mission: The idea was that the Clinic would furnish many of the same services that National Legal Services' programmes furnished around the country. One of the difficulties with the legal services program, though, is that it had a number of restrictions; things it was not permitted to do. People at that time could not be represented in criminal cases nor represent this kind of client or that kind of client. Or if someone was ten dollars a year over the poverty guideline, then they weren't eligible for assistance. Since Gonzaga was a private university relying on funds it raised itself, they weren't saddled with those restrictions. The idea was to represent people who wouldn't otherwise have access to the courts. The sense on the part of the students was that this was an important and exciting thing to do. And, of course, the underlying idea is that that's how one learns to be a good lawyer: by being a lawyer, by handling cases and having that personal responsibility to the client. It's one thing to work in a private firm for a private attorney; that's a good learning setting for students. But it's not at all like actually representing a client and having a personal responsibility for that client. The connection in the private firm is between the lawyer and the client - the student is an assistant. But in the Clinic, that connection is between the student and the client. As mentioned before, now virtually all law schools have clinical programs, and most states now have what are called student practice rules. The student practice rule was in place

35 when the Clinic was opened. It provides that a student may engage in the practice of law, appearing in court on behalf of a client, giving legal advice, all under the supervision of a lawyer, of course. This is after the student has completed two ¬thirds of his or her class work. When students begin a clinical experience - they're in their fourth or fifth semester of law school many, probably most, haven't done any law-connected work. They've not worked in a law firn1 or a law setting. The usual student's learning curve has a very meager arc at the beginning, which generally accelerates almost logarithmically at the end. So in the beginning information, ideas, concepts, and practice skills develop very slowly. But once a student enters that learning process, the arc starts to get higher and higher at the end. Kinds of cases taken: There are no limitations as to what is to be done; anything could be done. A sense of things is that legal resources are needed by the people, who have no access to them, by the people who can’t afford lawyers. Generally, those who could readily hire a lawyer are ruled out on their own. But that's not true across the board. Some work is done, for example, in the environmental area. Over the last decade a number of environmental organizations have been represented in this paf1 of the country because there is a strong sense that its an important public interest that is underrepresented in a country. The idea of bringing forward cases like the aquifer case, in which two major electric power companies wanted to build gas-fired power plants on the Rathdrum aquifer. In order to operate the plants they needed licensing from the Idaho Department of water Quality to pump roughly 20-million gallons of water a day from the aquifer to cool their plants. A number of organizations and private individuals were represented. Prisoners have also been represented. An area called Predatory Lending [fighting against companies that lend money] was entered into at repayment rates the borrower will never be able to satisfy. These contracts are designed so that the borrower will lose their home. A lot of work is done in Family Law as well as Elder Law, working with elder care issues, healthcare probate including a lot of garden-variety work, doing the work that lawyers do. The Clinic is a nice bridge between the world of the private lawyer and their inside of the classroom_ Students represent a huge and student, not knowing what can't be done, isn't deterred by the fact that it can't be done, and then he or she does it.

36

FORMS OF CLINICAL LEGAL EDUCATION

Clinical legal education may take a variety of forms. Selecting the most appropriate type of program to establish will depend on a number of factors, including the degree of support for clinical legal education within the law school administration. Also important are state policies on legal education, rules concerning the legal representation of individuals, and the needs of the community where the clinic will operate. Legal clinics are often defined by where they are physically located. University-based clinics are housed at a university law faculty. The teachers in the clinic are professors at the university, and the students usually receive academic credit for their work with the clinic. Clients come to the university to see their student-lawyers. Community-based clinics often operate out of an NGO. The teachers are actual practitioners who supervise law students from one or more law faculties as they work with their clients. In many cases, law schools offer such clinics as “externships,” in which professors also perform a supervisory role to ensure that students have a meaningful educational experience. Some clinics are known as live-client clinics, meaning that the students represent real clients. Others are simulation clinics, which mean that the students work on fact patterns that are based on real cases, but they do not represent actual clients.

TYPES AND FUNCTIONS OF LEGAL EDUCATION: There are at least five types of legal education all of which can make significant contributions in the area of rights and social justice. The five types are:

 Public legal education or mass legal literacy;  Para-legal training or legal education for social action and preventive legal services;  Professional legal education or training for lawyers and judges;

37 Continuing legal education or education to upgrade skills and to equip person for special tasks in delivery of justice; 38 Most law schools in India confine their activities to professional and post-graduate legal education. There is hardly any institution in the University System which imparts knowledge or training in law to the people generally, to social activists and social workers using legal structures and to bureaucracy involved in administering social justice programmes within the government. With widespread poverty and illiteracy amongst large sections of the rural people. coupled with difficulties in getting access to justice through courts, this situation tended to result in violations of rights with impunity and in denial of social justice to the poor and the needy. Legal aid committees appointed by the Government have repeatedly pointed out the inequities of the system. They sought the introduction of legal literacy programmes, paralegal training, law reform for the poor, legal aid clinics in law colleges, orientation to the bureaucracy, the legal profession, and the judiciary. Some attempts were made in this direction in some States in India at the instance of the legal aid administration. Law Schools however remained uninterested and legal education continued to turn out law graduates least prepared for the social responsibilities expected of them in regard to social justice and social change. It was in this context, the Bar Council of India which has statutory responsibilities in respect of standards of legal education, decided to set up what they called a model law school which will act as a pace-setter in legal education reforms and in the use of law for social change. The National Law School was established in 1986 at Bangalore as an autonomous institution with a mandate to look at law in a developmental context and to strive for excellence in its programmes and activities.

GOALS OF CLINICAL LEGAL EDUCATION PROGRAMS

The highly respected and often-cited Mac Crate Report of the American Bar Association, published in 1992, describes the skills and values of a competent and responsible lawyer as developing along a continuum. This continuum begins prior to law school, reaches its most formative and intensive stage during the legal education experience, and continues throughout a lawyer’s professional career. Clinical legal education can make a significant contribution during this continuum, as it provides law students with the necessary practical skills to become competent and conscientious lawyers. From a societal perspective, legal clinics serve a second purpose by meeting the legal needs of the poor and underrepresented. These two main functions are often intertwined, mostly complementary, but sometimes competing. Both purposes, however, fall under a broader set of goals: reforming the legal system, enforcing the rule of law, and shaping the attitudes of future generations of legal professionals. 38

Madhava menon’s clinical legal education.

38

What can clinical legal education programs do? • • • • • •

Provide professional skills instruction in areas such as interviewing, counseling, and fact investigation. Teach methods of learning from experience. Instruct students in professional responsibility by exposing them directly to the ethics of the profession. Expose students to the demands and methods of acting in the role of attorney. Provide opportunities for collaborative learning. Impart the obligation of service to clients, information about how to engage in such representation, and knowledge about the impact of the legal system on poor people.

Provide opportunities to examine the impact of doctrine in real life and provide a laboratory where students and faculty study particular areas of law. 39 Critique the capacities and limitations of lawyers and the legal system.

Educational objectives of clinical legal education

The educational objectives of clinical legal education are often described as teaching lawyering skills (such as interviewing, counseling, and negotiation) and written and oral advocacy and analytical skills (such as problem solving, decision making, hypothesis formulation, and testing). These skills are often neglected in the traditional law school curriculum. The educational objectives contribute to the overall goal of preparing law students to become competent and ethical advocates. Clinical legal education achieves these objectives through the type of cases handled and the choice of curriculum, teaching methods, supervision techniques, and evaluation and feedback provided.

39

Adapted from a 1992 report of the AALS Committee on the Future of the In-House Clinic.

39  Types of cases. The area of law or types of cases on which a clinic chooses to focus will be influenced by a variety of factors, including community needs, expertise of the clinical teacher, laws about what kind of cases students can handle, and the educational value of certain types of cases. For example, in a community facing environmental threats, the clinic might choose to work on environmental issues. In an area where there is high unemployment, labor issues or social benefits might be the subject matter of the clinic. If the background of the clinical teacher is in criminal law, the clinic may focus on criminal law issues. Some clinics choose to work on very simple legal matters, so that students can easily learn the law and start to handle the matters without substantial supervision. Other clinics choose lengthier, more complex legal matters, but fewer of them, to expose the students to many legal skills during the course of one case.  Clinic curriculum. Most law faculties that have a legal clinic require the clinic students to participate in a certain amount of classroom time each week in which they learn the practical skills involved in being a lawyer. Classes usually focus on development of the following skills: • • • • • • • •

legal analysis drafting of legal documents interviewing client counseling case analysis negotiation examination of witnesses oral advocacy

The clinic seminar generally focuses on those skills that the student will utilize in their work in the clinic, as well as in their legal practice after graduation.

While all clinics focus on the substance of the law applicable to the subject matter of the clinic, each may do so in different ways. In a civil law clinic, for example, students may be exposed to a variety of subject matter in their clinic cases, such as family, disability, housing, and consumer matters. The clinic instructor may choose not to devote time to substance in the weekly seminar, but rather teach the law as it arises in each particular case. Some clinics incorporate materials on the substance of the law applicable to the subject area of the clinic as part of the classroom component. Other clinics require that the students complete some prerequisite courses before they can enroll in the clinic. For example, at the Jagiellonian University Faculty of Law, students who want to enroll in its Human Rights Clinic are required to take a yearlong seminar on human rights and refugee law prior to participating in the clinic. Although not all students who take the seminar enroll in the

40 clinic, those who do are already knowledgeable about refugee law and the European Convention on Human Rights. What is most important is that the individual instructor devise a classroom component with opportunities to learn the basic skills and analytical thinking necessary to provide quality legal services.  Supervision. One of the most important elements of clinical legal education is supervision. Sometimes the supervisor will be a professor, and sometimes the supervisor will be a practicing lawyer who does not teach full-time. In either case, law faculties should be concerned about ensuring proper supervision of students who are representing real clients. The importance of supervision is that it ensures that the student is working effectively, efficiently, and ethically on behalf of a client. It gives the student and supervisor opportunities to interact directly with each other to discuss the case, prepare for specific tasks, analyze student questions, and stimulate critical thinking. A supervisor’s task is to help students to learn by doing, thereby acquiring the knowledge and skills necessary to become capable and effective lawyers. Clinical law teachers often state that the student is “practicing on my license,” and therefore they view supervision as essential to their own ethical and professional responsibility to the client. In many cases, laws or rules on student practice make this connection explicit. Sometimes the supervision style is “directive,” which means that the clinician provides detailed information to students about what they should do on a case and is always present when the student performs any task. Other clinicians take a “nondirective” approach, focusing instead on being available and teaching essential skills but allowing students to make many of their own decisions. Professor Peter Hoffman, in his article “The Stages of the Clinical Supervisory Relationship,” maintains that students pass though several predictable stages while engaging in this process. The supervisor’s challenge is to maximize the opportunities during this progression in order to make the students’ learning experience as efficient and beneficial as possible, but the form of supervision evolves from directive to nondirective as the student moves from one stage to another. Thus, in the “beginning stage,” the student has a working knowledge of the law but does not know how to apply it (similar to Barbara in the initial case study in this chapter). The clinical teacher is “didactic and directive” and “concerned with the students’ knowledge and performance of specific tasks, orientation to the supervisory relationship, and reduction of their anxiety” about representing real clients. The teacher will give instructions to the student, explain the rationale for each instruction, and make decisions about particular courses of action. Barbara, the student described in the opening situation, would meet with her supervisor prior to the interview, alone or with Anna, to discuss the goals of the initial client interview, what questions to ask, how to ask the questions, and how to be an empathetic listener. In addition, they might role-play a portion of the interview. They would meet again after the interview to discuss the facts of the case, possible ways of framing the case, and the law that may apply.

41 During the “middle stage” the student becomes more capable of making decisions about cases. The student knows how to ask for help. The approach to the case is more collaborative, with the student and teacher “defining the legal problem to be solved, developing procedures for solving the problem, evaluating the effectiveness of the solution and implementing it.” The teacher “stimulates and guides” the student, who begins to make his or her own decisions. In the “final stage” the student develops skills and an understanding of the legal process and his or her responsibility. The student is able to make decisions independently. The supervisor may disagree with the student’s decision, but as long as “reasonable minds” might differ, the student’s decision will be respected. The supervisor’s role is that of “confirmer and guider; a safeguard against serious error.” Whether directive or nondirective, the key is that the clinician is available to consult with the student, observe the student’s interaction with clients and others, and provide feedback and ask questions, all of which will help the students analyze the case. This supervision can take place in the classroom, in small groups, in one-on-one meetings, or in interactions with clients, witnesses, opposing counsel, or court. The task of the clinical instructor is to supervise closely enough to provide guidance when the case requires and to monitor the student’s work sufficiently to prevent harm to the client’s interest.

Plan, do, reflect: Steps in the clinical supervisory process

•

•

•

Planning. The faculty member discusses with the student how the student is thinking about the case and the actions that the student wants to take in the case. Student performance. The student takes action in the case (for example, interviews a client or conducts a hearing). This performance is often observed by the supervisor. Most student practice rules require that a supervisor be present for court appearances. Evaluation/critique. The supervisor and student review the actions taken, assess those actions in light of the consequences that have occurred, and identify what has been learned in the process.

 Evaluation and feedback. Another key element of clinical legal education is that the instructor/supervisor takes time to give feedback to the student on everything that the student does in the clinic. The feedback is meant to be constructive, to enable the student to understand what he or she did, why something different should have been done, the rationale for the difference in approach, and ideas on how to do it differently. The feedback is always two-way; the instructor/supervisor

42 will listen to the student’s perspective and try whenever possible to affirm the student’s thinking about the case. During the evaluation and critique process, a student’s performance is subject to intensive and rigorous review. With the instructor/supervisor and other students, the student under review will analyze critically every step of the planning, decision making, and action. This can be done by replaying videotapes or audiotapes of the performance, or by reviewing notes and memoranda made during the performance or while engaged in a lawyering activity for an actual case. This type of review can be used to analyze any experience, such as a meeting with a client, a negotiation with another lawyer, a conference with a state official, a trial, or the closure of a case, in order to draw from the experience the lessons learned that it can provide. Feedback is a critical part of supervision in that it is the technique that enables students to learn from their mistakes, think in ways that may not come naturally or be obvious to them, and develop their confidence and effectiveness as a lawyer. 40

GENERAL OBJECTIVES It is not an easy task to consider how to improve legal education, even if all concerned agree there is a need for improvement. Generations of debate have not resolved the relative merits of liberal, general education versus a technical, professional orientation for the practice of law. Nor will we ever be able to reach universal agreement about the specific knowledge, skills, and values that law schools should teach if for no other reason than the vastly diverse practice settings in which our graduates work. There are some fundamental things about which we should be able to agree, however, and we should not refrain from trying to improve legal education simply because the task is difficult. Other countries are reforming their systems of legal education, and our attention improving the preparation of lawyers for practice in India is overdue. 41 Objectives of clinical legal education can be achieved under the supervision of law schools by undertaking massive works in the following areas: A. Integration of Social Values through Curriculum

40

41

Based on the critiquing technique taught to faculty trained by the National Institute of Trial Advocacy.

Supra n. 1 0, 12

43 Lack of social relevance and humanistic approach in the curriculum alienates social values, ethics, gender perspectives, views of minority etc. Therefore, by way of adding courses to the curriculum it address the issues of gender, cultural migration, minority and indigenous. peoples or allowing students to work with people of other cultures, we can equip law students to revisit their responsibilities to the marginalized section of the society. The law curriculum should be introduced in integration with other disciplines. It is time to appreciate that the subject matter of economics, sociology, anthropology, philosophy, literature and psychology are essential to the education of the future law graduates. As the minimum, the budding lawyers must be taught in the economics of law, lawsuits and lawyering. 42 B. Professional Practice and Skills Development Members of the legal profession need to play the role of educator, and counselor. Therefore, lawyers must be trained in skills that provide for a broader understanding of various facets of legal problems. Fundamental lawyering skills are important to provide social justice; however, any set of skills confined only to traditional methods of problem solving would be manifestly insufficient. Students would be required to undergo the entire process of lawyering either by exposure to actual cases or in dramatic simulations. In both instances, they are -to act as lawyers and learn the details of lawyering from the experience of being a lawyer, real or simulating. While the students. work under the supervision of a practicing lawyer or a clinical teacher, they are expected to face situations, analyse facts and take decisions independently. In interacting with the clients and confronting facts of diverse nature and presenting them in the court, the student lawyers get the real touch of the picture of the society. They understand law in the context of the problems of the society and can form opinion about the quality of a particular law. This awakens the students. to the issues of social justice and install in them a sense of professional responsibility. But how successfully they. will master the skills of lawyering and how much they will be sensitized to social problems will depend much on the quality of supervision by the clinical teacher. C. Externship In externships, students either participate as lawyers in the representation of real clients under the supervision of practicing lawyers or they observe or assist practicing lawyers or judges at work. These forms of experiencing aim: • To broaden, extend, and deepen students' understanding of concepts and principles. • To help students integrate theory and practice. • To increase students motivation. • To help students develop the knowledge, skills, and values they need as professionals. 42

Prof. Jay Erstling Reform of Legal System (1993).

44

Under this programme, post-graduate students are required to Work With leading NGOs, engage in para-legal activities in different parts of Bangladesh. This programme proved extremely useful for the students as it provided necessary motivation and ?sensitized and exposed them to the society and masses at large. Placement with legal services groups will offer Bangladeshi law students valuable opportunities to broaden their perspectives, integrate such services into their careers, and join the community of legal activists .

D. Law Clinic Clinics remained focused on poverty law issues and formulated increasingly sophisticated educational regimes to accompany live client representation. Balancing the twin missions of service and education, the clinical movement became an institutionalized component of legal education.32 Today, there is little dispute about the merits of clinical legal education. By addressing human rights and social justice concerns, law clinics and NGOs may help upgrade the quality of the legal profession in general. Dismay at the profession's low ethical and professional standards drove many top law graduates. into teaching or business in the past. The clinics and expanding NGO opportunities can improve legal training and encourage high-caliber graduates to practice law.33 E. Legal Service The primary obligation to provide legal services to the poor resides with the government, and to a lesser extent, with the legal profession and not with law schools. Nevertheless, law schools do have some obligation to contribute in solving the crisis of access to justice, and it seems obvious that the obligation is best accomplished by law school clinics assisting low-income individuals and communities that are underserved or have particular difficulty obtaining lawyers because of the nature of their legal problems.34 Unless we design our clinics to involve students in the delivery of legal services to clients, we teach them too little about legal services work, underexpose them to the real world of low income clients, miss opportunities to engage students in seeking fundamental changes through class actions, and thus fail to meet the law school's obligation to make. a meaningful contribution to addressing the access to justice problem.43 F. The Legal Advice Legal advice is a corollary of legal education and is th e essential commitment legal aid. At the pre-litigation stage when the legal problem has already arisen, a legally informed person listens to the problem and gives advice as to how should the problem be dealt with. The advice may be to avoid litigation, or it may take the shape of drafting an application or 43

Sajan Singh, “legal aid: human rioht to equality”.

45 a legal document. A competent legal advice saves uncalled for litigation; it may assist in rightly tackling the 'triton having legal consequences; or it maybe an education on a law point. G. Legal Aid . The legal aid in the popular sense, understood by the present or potential beneficiaries, means only the representation in the court of law. Traditionally legal aid meant providing assistance to poor litigants who did not have sufficient financial means to run their cases in the court. Legal aid now has set broader goals to provide legal assistance to various communities especially disadvantaged ones to defend their rights in general, to make them aware of their specific rights and 'human rights in general, to motivate and help them to seek alternative dispute resolution in order that .cumbersome, hazardous and costly process of litigation can be avoided and with that end in view to organize negotiation, mediation, conciliation and arbitration amongst the disputants. Therefore, the system that is to be adopted in India has to be devised in such a manner that justice may be available easily, speedily and at less cost. Law schools can establish legal aid cells where students and teachers can guide people in identifying their problems and make them aware of the remedies available to ¢em. 37 Students in these cells can provide paralegal services such as drafting affidavits, assisting in registration of marriages, births and deaths, electoral rolls, and filling out various forms. This type of work gives students ample opportunity to learn client interviewing, counseling, and drafting skills. Another approach is for law schools to adopt a village and encourage students to conduct a survey to identify the problems that the people in that particular village face. After identifying the problems, students can approach the concerned authorities and arrange a public forum, often, local authorities are not responsive to local citizens concerns, especially those from disadvantaged communities. The idea here is to inform villagers about the programme and to encourage them to participate in the forum so that they can meet the concerned officers on that particular day and can settle their grievances in public. Students can be instrumental in the smooth functioning of the entire programme, and they can follow up on particular matters with the concerned officers. These kinds of programmes are very effective, as the officers after giving an assurance publicly are not fulfilling their promises. H. Public Interest Litigation Student involvement in public interest litigation starts when they become sensitized to social justice issues in the course of regular lectures and at Legal Aid Society meetings. By this process of sensitization to the general social44situation and the persistence of injustice in their own immediate society, students are able to identify various areas where they feel 44

Id. at 16

46 that the intervention of the judiciary might be required. The faculty should guide them as to how they should further investigate or research the issue to ensure that there is a real situation of injustice in which members of public could genuinely be interested" Thereafter, the students need to be advised to write to competent authorities who are obliged under law to remedy the injustice. If such authorities do not provide relief, the students with guidance from members of the profession may file a petition before the High Court Division together with all of the information that they have gathered concerning the problem, Public Interest Litigation operates in Bangladesh under special rules that allow any member of the public to present the case. Therefore, if the litigation proceeds the students themselves argue the case before the court.

1. Greater Emphasis on Alternative Dispute Resolution (ADR) Justice education requires us to place an even greater emphasis on negotiation, dispute resolution and collaborative working relationships. Our students must be taught how to resolve problems before they deteriorate into potential lawsuits, Our young lawyers need to be educated to recognize that even if the outcome of litigation is relatively certain, there is not always just one right answer to a problem. A money judgment may not be an effective solution for all parties, and so lawyers should work to provide for a lasting solution, one that is worked out through negotiation or appropriate dispute resolution technique. They need to learn that it is not enough to dig out the facts of the problem: they must understand the context in which the problem arose. A good lawyer can assist clients in articulating their problems, finding their interests, ordering their objectives, and generating, assuring, and implementing alternative solutions.38 J. Public Legal Education / Street Law Programme In order to have access to justice, a person must know about his rights and the remedies for the wrong done to him as well as the forum for obtaining that remedy. The creation of good laws and their proper applications do right depend solely on the legislators and law enforcing agencies, but in a large measure depend on the consciousness of the people about their rights and duties in the society and on the knowledge of the law of the land which must protect their rights. Therefore, public legal education might be a powerful tool to educate the people about their rights and provide them with information about the laws of the country. 45 Public legal education can be effected through lectures, discussions, publications and distributions of the simplified and adapted versions of Constitution, and international human rights instruments, etc. or adopting any other informal methods like production of street plays that focus on legal issues. As a part of the public legal education programmes lectures, seminars and discussions can be organized in villages, factories, professional unions, educational institutions and amongst particular disadvantaged groups like slum 45

38 Reno, Janet, Lawyers “ as Problem-Solvers”, Keynote Address , journal of legal education 5-39 (1999)

47 dwellers, garment workers, or aborigines. Public legal education should also motivate the people to participate constructively in the creation of law, which has a pervasive influence on our society. People's participation in making laws and public policies will not only lessen the traditional use of conventional wisdom, and 'intuition' of the legislators and policy makers but it will also lessen their unresponsiveness to society's urgent problems. K. Professional Ethics: Making Lawyers Work for the People The whole idea of clinical legal education can go in vain if ethical side of legal profession is overlooked. The objective of clinical legal education is not merely to help students master the skills of lawyering and make them technically sound. In representing a client's case in the court, student lawyer must not resort to any means, which is morally condemnable and must avoid resorting to false witnesses and distortion of facts. While client's interest must guide his actions and efforts, ethical and moral values must also be upheld, for in that lies greater good of the society. In fact, in all the programmes that are linked with clinical legal education emphasis is always on the aspects of justice, protection of rights and progressive development of the society. While execution of these programmes requires moral and ethical motivation, successful implementation of the programmes will still further social and moral values in the students. Ethical aspects of legal profession must be included in the law faculty curriculum. Interdisciplinary approach to curriculum development is necessary to make the students more concerned about society, to make them understand the requirements of its progressive , and humanistic development. For the legal education to have any practical learning it is important to guide the students learn the lessons of ethics, morals, law, justice, human rights and society in their inter relationship, so that they can better identify their tasks in the service of the people and in progressive development of the society. L . Community Involvement. Diversity and Pro-people Practice Our legal education has so far been concentrating on the lawyering process and skills learning. To make legal education truly meaningful in the context of our social realities, effort must be made without further delay to accommodate the remaining objectives in the clinical curriculum. This, very likely, will necessitate establishment of 'out-reach programmes' where students will have the opportunity to face the 'real problems, and work on their solutions. This will allow the students to reflect on whether justice can always be done by litigation. This will enable the law schools to produce graduates who are better equipped for practice and to promote a fuller appreciation of the lawyer's functions in the society, giving. a human perspective of law, and a deeper understanding of Law as a social phenomenon and an intellectual discipline.

48

BENEFITS OF CLINICAL LEGAL EDUCATION In every society some portion of the population cannot afford professional legal representation, though they desperately need the advocacy of a good lawyer. Clinic students can make a significant, if only partial, contribution to filling this gap. Lawyers in many Central and Eastern European countries are overwhelmed by demand for their services and unable to devote proper attention to clients who cannot pay for their services. Legal clinics can contribute to meeting this need, particularly in those cases that do not present a level of complexity requiring an experienced lawyer. Moreover, legal clinics can often do more for their indigent clients than law firms can. People often go there to seek legal advice about a problem that may be a result of a number of other social and legal problems that clients may not even want to acknowledge. Students learn to deal with some of the other needs of their clients and provide them with more than just the legal advice sought. Clinic students are able to directly assist only a small portion of all those individuals who might need free legal services. However, as is borne out from the experience of clinics in many countries, students who have been able to use their knowledge of law to help those in need often choose to continue to work for the public good. Clinics often produce a pool of young lawyers who will directly address society’s need for free or low-cost legal consultation and representation. In many of the emerging democracies in the region, where a majority of people live in poverty, it is tempting for clinic administrators to look to clinics as a means of meeting a significant portion of the population’s need for legal services. Nevertheless, university legal clinics will always have to balance the interest of serving underrepresented clients with the educational goals of the clinic. This balancing will often mean taking fewer cases in order to have sufficient time to provide the supervision, evaluation, and feedback that clinical legal education requires.



Sensitizing students to social issues.

In a profession that lures young lawyers toward lucrative careers, clinics show students the tangible advantages of legal careers devoted to empowering poorer members of society and bringing the benefits and protections of the law to those who traditionally have had little access to them. Perhaps one of the most valuable products of clinical education is that young lawyersto-be feel the deep satisfaction that results from providing free legal assistance to people in need. Clinic students learn not only about the law, but also about its impact on life. By bringing law to life through the experience of clients in need, law clinics can be a crucial force in the improvement of human rights and the development of the rule of law. Clinical legal education programs are a mechanism for training law students and helping them to understand the ethical, professional, and practical problems faced by

49 practicing lawyers. Exposing law students to real-world experiences, within the context of a clinical legal education program, can result in a future talent pool for the public interest legal community.



Assisting practicing lawyers and legal organizations.

Legal clinics can also help the practicing bar by relieving attorneys of cases that demand too much time for too little reward. Student lawyers can learn from these cases. Likewise, clinics might take on a small number of less-complicated cases referred by human rights groups, leaving those groups the time and resources to focus on cases whose outcomes might affect larger policy issues. In many countries with clinical legal education programs, practitioners choose to become involved in clinical legal education programs by providing an “internship” or apprenticeship opportunity with their organization or firm. They can also directly supervise students in a university-based clinic or serve as outside mentors whom the students can consult regarding specific issues. In such situations, students profit from a practitioner’s expertise and perspective, which may be different from that of the clinical professor. In turn, the experienced attorney or public interest organization receives low-cost labor and may benefit from being able to influence and educate bright young students who will later join the ranks of legal professionals better prepared for practice.



Enhancing the legal reform process.

In the societies of Central and Eastern Europe, many viewed laws under the socialist legal order as tools of arbitrary power. Large portions of the populations of the region felt alienated and cut off from the benefits and protections of their own laws, even though they could be punished or restricted by those laws. As a result, to this day a pervasive attitude of fear, estrangement, and mistrust toward the legal system discourages many citizens from seeking the legal help they need. By assisting individuals in their relationships with state and local administration, clinics improve the legal consciousness of administrators, bureaucrats, and citizens alike. Students’ assistance and advice encourage citizens to pursue their rights through administrative procedures. Students’ involvement in facilitating communication between citizens and governmental entities also functions as a type of civil control over the administration and encourages officials to apply the laws in good faith.



Clinical legal education may also play a valuable role in promoting legal reform and furthering respect for the rule of law.

50 Clinical students spend time studying particular legal provisions, applying such provisions in specific cases, and communicating with administrative agencies and law enforcement offices. The students’ experience may bring to the attention of academia some of the discrepancies between theory and practice or shortcomings of the law that might otherwise go unnoticed. Stimulating professors’ interest in these issues may also trigger academic discussion and encourage efforts to change judicial or administrative practices, or even to achieve legislative reform.



Teaching ethics and professional responsibility.

Working as a lawyer in the protected environment of the university-based clinic helps students to understand the implications of being practicing lawyers. The clinic serves as a forum for exploring and resolving ethical dilemmas under the supervision of teaching faculty, after which students are better equipped to make difficult decisions and live with the consequences. Clinics thus infuse legal education with a strong sense of responsibility and professional ethics.

As students handle their cases from beginning to end, they see the results of their decision making and work. Through clinical training, students assume responsibility for matters of great importance to their clients, and they gain the opportunity to incorporate the legal profession’s ethical standards into their practice routine during its formative stages. Working with the law in real-world situations allows students to discover the values critical to effective legal systems, and it encourages their commitment to the rule of law, justice, fairness, and high ethical standards. Indeed, learning about ethics on the basis of actual cases is far more effective than learning the abstract principles alone. Over the long term, clinics can help to develop students’ understanding and appreciation of strategic considerations with the interrelationship of issues of professional responsibility and ethics.



Improving the system of legal education.

Clinical legal education may have a positive impact on the quality of education in the law school generally. Meeting real clients and discussing real problems can stimulate students’ interest in legal issues, encouraging them to become more proactive and to pursue their studies more diligently. Trying to solve real cases instead of simply memorizing legal rules helps develop students’ critical thinking, a skill that they will use in their other law school courses. Clinical legal education can also bring students’ practical experience under the supervision of law school professors. The system currently in place in Central and Eastern Europe provides an opportunity for students to work with practicing lawyers in the

51 community prior to or just after graduating from the university. The system is widely criticized as inefficient because it places all responsibility for instructing and supervising students on practicing lawyers, judges, or prosecutors, who are most often overburdened with other work. The law schools play an insignificant role, or none at all. Introducing legal clinics into the law school curriculum offers an alternative form of instruction by providing practical education designed and implemented by law school professors to meet the needs of their students. 

Finally, clinical education affords students an opportunity to consider the kind of legal work they would like to undertake in the future—or even whether they want to be a lawyer at all, at a point in their education that allows them to adjust their studies accordingly.

In putting their education to the test in a clinic setting, they discover their strengths and weaknesses before finishing their legal studies. Consequently, students are able to work with their teachers on converting those weaknesses into strengths. The understanding of their professional qualities versus the demands of the profession aids students in determining which areas of legal practice suit them best before they commit themselves to a specific field of law.

SIGNIFICANCE

Law is the cement of society and an essential medium of change. The significance of legal education in a democratic society cannot be over-emphasized. A knowledge of law increases one's understanding of public affairs. Its study promotes accuracy of the expression, facility in arguments and skill in interpreting the written words, as well as some understanding of social values. It is pivotal duty of everyone to know the law. Ignorance of law is not innocence but a sin which cannot be excused . Thus, legal education is imperative not only to produce good lawyers but also to create cultured law abiding citizens, who are inculcated with concepts of human values and human rights. Legal profession is objectively in the position of producing Statesmen. This is due to two reasons (1) Lawyers belong to an independent profession. They are not subordinate to the government or to anyone else, and (2) They are directly in contact with society in its entirety as they have to deal with all kinds of problems of people from all sections of society, unlike say, doctors who are confined to technical problems. Hence lawyers are the people who are most conversant

52 with the problems of society as a whole. A well administered and socially relevant legal education is a sine qua non for a proper dispensation of justice. Giving legal education a human face would create cultured law abiding citizens who are able to serve as professionals and not merely as business men. The quality and standard of legal education acquired at the law school is reflected through the standard of Bar and Bench and consequently affects the legal system. The primary focus of law schools should be to identify the various skills that define a lawyer and then train and equip its students with requirements of the field of law.

METHODOLOGY OF CLINICAL LEGAL EDUCATION TEACHING The most fundamental characteristic of clinical legal education is the methodology of teaching. The teaching method requires students to confront problem situations very similar to those that lawyers confront in practice, handle such problems in the role of a lawyer, interact with others in attempts to identify and solve the problems, and receive intensive critical review of their performances. Clinical legal education is primarily an interactive method of teaching, in which the students “learn by doing.” This learning process is sometimes described as by the following sequence: “plan, do, reflect.” Clinical teachers use a variety of methodological approaches to stress the lawyering skills they see as fundamental. Most university-based law school clinics are structured around teaching techniques such as the following: • • • • • • • •

use of written materials classroom discussions of case-specific fact patterns games brainstorming techniques to analyze the good and bad facts of the case classroom role-playing exercises based on real cases use of videotaping to enable the students to watch others and themselves perform a particular skill individual counseling and training of students by faculty and practitioner supervisor(s) provision of direct legal services to clients: advising, drafting documents for, and representing clients in court proceedings, including administrative hearings and/or trials

For example, interviewing is one of the most important skills to teach students in a legal clinic. It is a skill they will use in the clinic and throughout their careers, whatever their area of specialization. In addition to the traditional lecture method, the teaching methodologies that might be utilized to teach interviewing include the following:

53 1. Use of written materials. Students may be given written materials describing the goals of interviewing and the potential obstacles to effective interviewing, to be read prior to coming to class.

2. Classroom discussion. In class, students might discuss the goals and obstacles, as well as techniques they can use to reach their goals. Use of a case-specific fact pattern will enable the students to understand better how to prepare for an interview.

3. Brainstorming. Rather than tell the students what they should have learned about interviewing from the game described in the previous box, the instructor could use the brainstorming technique instead, asking the students to say what they think are the goals of interviewing. The instructor could write all of the students’ responses on a “flip chart” or blackboard, then go through the information on the chart with the students and decide which are the most important goals. The instructor would add goals that had not been mentioned or emphasize those that had not been discussed sufficiently. The students could also brainstorm obstacles to a good interview, such as client fears about dealing with a lawyer, revealing secrets, or handling the cost of representation.

4. Role-playing. The instructor could distribute a hypothetical fact pattern to half of the students, and give the other half a brief synopsis of the law that applies to that fact pattern. The students who received the fact pattern play the client. The other students play the lawyer. In turn, each student who is assigned to be the lawyer interviews a student “client” in front of the class. The student is then evaluated or critiqued on interviewing techniques by the instructor and other students, including the student “client.” In this way, the students can “learn by doing,” and when they are not “doing,” the other students learn by observing. The students also experience what it is like to be a client, and how it feels to be interviewed. 5. Videotape. One method of teaching lawyering skills is the use of videotaped role-playing of a client interview in the classroom. After showing the video, instructors lead the students in critiquing a flawed interview. They can also ask the students to demonstrate a better one, perhaps videotaping it so that it can be critiqued together with the first video afterward.

54 Finally, teachers can accomplish similar goals without a video, simply asking students to simulate interviews in pairs and relying on memory or notes to critique them afterward.

6. Small groups. The student who is preparing for a real client interview can tell the instructor or supervisor what questions he or she plans to ask the client. The instructor might also role-play with the student, to practice how the interview will be conducted.

7. Real client interview. The instructor or supervisor can observe the interview, taking notes, and then meet with the student after the interview to analyze it and give feedback.

Lawyering skills Example of clinical method Legal reasoning and strategy Identify legal issues and relevant facts in Student-led classroom discussion of case studies or a particular case. fact patterns. Devise legal strategies likely to result in Teams of students conduct case strategy sessions, the outcome the client wants, or that is followed by critiques; brainstorm the good and bad in the best interests of the client under facts of the case. the circumstances. Legal research, writing, and documentation Obtain and marshal all relevant facts to Conduct a real client interview; meet with any the client’s case, to be prepared to relevant state agency or other official; investigate counter opposition arguments and to and conduct follow-up research with witnesses and maximize the likelihood of the best any relevant offices; draft a legal memorandum possible outcome. outlining facts, legal issues, and potential outcomes. Draft and structure pleadings and correspondence for courts or administrative agencies. Organize and maintain case files, documents, information, investigation results, and other materials, so as to ensure their safety from loss or

Direct representation of the client in the matter before the courts or administrative bodies, under the supervision of a practitioner; drafts of work product critiqued prior to submission. Externship with law office, court, agency, or public interest organization.

55 inappropriate disclosure. Lawyer-client relations Establish a working relationship with the client based on trust and open communication. Discuss with the client all possible approaches to resolving the legal problem(s) and allow the client to make fundamental non strategic decisions affecting the case. Legal argument Argue persuasively, providing bases for each argument likely to effect the best possible outcome for the client. Recognize indicators of how a client, witness, administrative official, opposing lawyer, or interlocutor is reacting to arguments, and respond and adapt to that reaction.

Conduct an intake interview and client meetings, with a supervisor or alone, followed by a critique and possible input from the client. Role-play lawyer and client roles in a classroom setting based on a hypothetical case; obtain advice through class discussion and critique.

Participate in a mock trial or moot court competition. Conduct a critique of arguments by practitioners or “guest experts” (such as a judge or official) and roleplay various responses.

THE CLINICAL METHOD SEEN AS A THREE-PART PROCESS: DEVELOPING ACTION PLANS, A STRUCTURED EXPERIENCE, AND REFLECTION All clinical teaching involves some form of experiential learning that can be described in a three-step process: 1) the student learns to formulate an action plan; 2) the student enacts that plan through a structured experience; 3) the student reflects about the experience and modifies future action accordingly. The clinical process is thus a blueprint for professional growth. This paper will examine how the clinical teacher plans, enacts and modifies this type of learning experience for his or her students. After providing a brief theoretical framework for why this three-part process is used, the article will describe factors used by clinical teachers in establishing the process in their clinical courses.46 46

47. Legal Education and Professional Development -- An Educational Continuum, 1992 A.B.A. SEC. LEGAL EDUC. & ADM. B. 243 (known as the "Mac Crate Report").

56

Experiential learning is thought to match quite closely maximal learning experiences for adults. There are numerous psychological, educational and management studies on how adults, and more specifically, professionals, learn. 47 While these studies are very complex, one major finding is that adults learn best when faced with questions that arise in real-life experiences followed by opportunities to answer and reflect upon those questions. Moreover, learning does not happen in the same way for all people. Individuals have different approaches to learning that influence how they learn most optimally. Good teachers, then, provide context-based learning opportunities, allow students to direct themselves and provide different kinds of learning environments. 48 Donald A. Schon, a social scientist at M.I.T, has specifically applied learning theories to study how professionals can improve during their careers. In his book, "The Reflective Practitioner," Schon advocates a process he calls "reflection-in-action," in which a student professional learns by engaging in ongoing dialogue and discussion with an experienced professional about the experiences the student undertakes. These and other learning theories form the theoretical justification for much of clinical law teaching. While not all clinical law professors use the same terms in describing what they do, most clinical law experiences are structured to take advantage of experiential learning and employ a variety of teaching methods. The team nature of many clinical courses compounds the difficulty of review in a system that evaluates individuals, which is typical of most tenure and review processes. Typically, non-clinical law professors have the discretion to determine their course structure. Many clinical courses are team-taught or are part of a larger program such as an in-house clinic law office, an extern program or a trial practice program. In many instances, class design choices such as choice of experience provided, whether forms are used in the classroom, the nature of office procedures or in-class content are made by several involved clinicians, dictated by long-established consensus, or are the result of other institutional factors. The reviewer must be aware of the decisions made by the individual faculty member under review as well as those course components over which she or he has no control. A. Formulating an Action Plan Every clinical law professor requires students to engage in some type of planning process. Plans are developed by combining lawyering theories, practical information, and legal research. The professor will often expose the students to theories about the lawyering aspects the course is designed to teach. This may be done through textbook reading assignments, n21 a variety of legal and social science articles, class lectures or discussions and guest speakers. Other clinical professors prefer to allow the student to discover underlying theories through an experiential process. 47

See Frank S. Bloch, “The Andragogical Basis of Clinical Legal Education”, 35 VAND. L. REV. 321, 328 (1982). 48

Donald A. Schon, “The Reflective Practitioner” (1983).

57

Clinical teachers have different approaches to the role of theory in the development of professional skills and values. Some clinicians assign materials that describe a particular theory of the skill or value early in the course and then require the students to emulate that theory. For example, a clinician who wants the student to learn "client-centered" counseling might assign the Binder, Bergman & Price text and then ask the students to try to emulate that counseling style during the experiential phase of the course. The professor's action plan should clearly inform the students that they are required to perform "clientcentered" counseling, and the student's action plan should list how the student intends to implement "client-centered" counseling. Another clinician might expose the students to a variety of counseling models49 and ask the student to choose one model or to plan the counseling session based upon several theories. A third approach would be to forego the exposure to counseling models and ask the student to plan the counseling session based upon the student's own ideas. Under this approach, the student may be subsequently exposed to counseling models after she or he has counseled the client and developed ideas about what does or does not work. Such plan development extends to a variety of skills or values the course is designed to teach. Typically, clinicians will require students to develop plans for some or all of the following skills: interviewing clients and/or witnesses, counseling clients, drafting pleadings, engaging in negotiation or mediation, preparing for a trial or hearing or developing alternative solutions to help the client. The focus of the planning will reflect the focus of the course. For example, in a course where the professor emphasizes the process of litigation, the clinician might create opportunities for students to spend most of their time planning litigation activities -- discovery, pretrial processes, trial, etc. In a process-oriented course, the students might not spend very much time learning the underlying policies, history, or legislation in a specific area of law. Rather, the processes of litigation would be more central. By contrast, in a course in which the professor wants the students to primarily learn initial interviewing skills, the clinician should create many opportunities for students to plan for and practice those skills; such a course might involve students in numerous intake interviews, for example, rather than court cases. n25 A third type of clinical course focuses on learning substantive law, and the clinician would arrange an experience in which students have opportunities to learn that law. In this type of course, students concentrate on the area of law, underlying policies, history, case law, and legislation. Students in such a course will spend more time developing action plans that are specific to that type of law. For example, in an elder law clinic, the professor might require all of the students to learn the details of how to prepare different kinds of estate planning documents and what the underlying policies are behind the various documents. 50 49

David A. Binder., “lawyers as counselors: a client-centered approach” (1991). There is not consensus about which of these models is better or worse, or even whether one is better or worse. The Mandel Legal Aid Clinic at the University of Chicago advocates this approach 50

58 There are several methods to help students develop action plans. For example, some clinicians favor checklists, forms or protocols to ensure their students learn to think through the same issues in every case. This approach teaches students to systematize their thought processes and use logical, rational procedures in each and every case so that nothing is overlooked. Other clinicians require students to create plans from ground zero. This approach encourages students to learn how to plan by relying upon their own resources and ideas. This method may result in more diverse approaches to problem solving. The choice of approach is less important than the planning which is fostered, although the approach used should match the professor's teaching philosophy. The discussions between a student and his or her faculty supervisor is the core of the clinical experience. The nature of supervision discussions varies depending upon whether a student is in the planning, experiential, or reflection stage. During the planning stage, the clinical teacher engages the student in a critical exploration of the choice process of planning. That process involves assisting the student in generating a wide range of options, forecasting likely outcomes depending upon what choices are made, prioritizing actions, and setting deadlines for action. A supervision session in the early stages of planning would likely end with a task list for the student to pursue but no clear resolution of the plan. Later sessions would involve the student explaining why certain choices were selected (by the student together with his or her client). This process sets the stage for reflective discussions later on. Consistent with the learning theories discussed above, it is generally helpful to ask the students to discuss how to plan, rather than telling the students how to do it. These types of discussions can take place in a variety of ways. Students may have individual meetings with the supervisor or meet in pairs. These sessions, usually referred to as supervision meetings, typically occur on a regular basis. Additionally, the regularly scheduled class meetings may be used to discuss planning. Another method is case-rounds, in which students present issues from a case to a larger group of students for discussion and feedback. There are a variety of planning devices which clinical teachers make available to their students. These devices might include case planning charts, trial notebooks, protocols, forms, and banks of previous student or faculty plans. These range from "fill-in-the-blank" type devices to more general, descriptive devices. Other faculty members ask their students to generate their own planning in a more free-form style. While approaches vary widely, there should be some evidence that the faculty has some form of written guidance to assist students in planning, even if that written guidance is in the form of questions the student should consider rather than a protocol. B. Enacting an Action Plan Through a Structured Experience In any clinical course, the catalyst for learning is the experience component.51 Clinical 51

. Jerome Frank, Why Not A Clinical Lawyer School, 81 U. PA. L. REV. 907, 916-21 (1933).

59 professors make many choices when designing the experience component of the course. The experiences offered should allow the students to practice the skills or apply the values that are the focus of the course. While students will practice many skills and apply values that are peripheral to the focus skills and values, priority should be given to those experiences that are most likely to offer the student the opportunity to practice the focus skills and values. For example, a federal litigation clinic might have as its primary focus the skills of designing case theories and implementing the pretrial phase of the case consistent with those case theories. In such a clinic, the fact that most cases never go to trial during any given semester should not be a concern, provided the students have sufficient opportunities to take a new case and develop a case theory, and work on pre-trial discovery pleadings, motions and the like. Another federal litigation clinic might prefer to focus on federal trial work. In such a clinic, the professor might arrange to take cases only after the initial intake interviews and preliminary administrative complaints are drafted. The professor may have several cases in trial mode at any given point in time. Other skills that may serve as the course's focus include: transactional work, mediations, diagnosis of legal problems, interviewing, counseling, negotiations, or community lawyering. As an alternative, the course could focus on a general lawyering experience, broadly defined. Another goal might be to have students learn about professional values, such as mechanisms that provide legal assistance to the poor, ethical and moral issues, or competency issues. Cases chosen should allow students to experience the practice of the chosen skills or the judgment involved in choices based upon selected values. Whatever the focus, students should be required to experience challenging professional situations that require decision-making and the exercise of judgment. The prevailing model is one in which the student engages in the primary lawyering tasks that are central to the experience. They engage in such tasks as conducting client interviews, appearing in court, and drafting documents. The faculty member provides useful critique and ensures that the student thinks through the relevant considerations prior to performing important tasks. Thus, in such a clinic, one might see moot performances of a critical trial or negotiation session prior to the actual event. Much of this questioning and critique generally takes place in one-on-one supervision sessions, but occasionally similar activities occur in classes or "case rounds" sessions. Most clinicians hold the view that optimal learning takes place when the student assumes primary responsibility for analyzing the issues, making judgments, and executing the plan. However, there are some programs in which the students "second-chair" faculty members or more experienced students. In these programs, the professor performs more lawyering tasks while the students do much of the background work. The students observe tasks such as interviewing a client or appearing in court. This type of clinic operates on the assumption that students can learn better by observing excellent lawyering than by engaging in all tasks by themselves. The students should observe the professor's work and be given an opportunity to critique it.

60

A third approach mixes the two methodologies. The students are given primary responsibility for most tasks. In certain situations, however, the faculty member assumes responsibility in order to provide a model for the student. 52 When reviewing clinical teaching, it is important to know which philosophy is adopted by the clinician. The reviewer can then assess how well the clinical teacher is fulfilling the chosen model. The reviewer should ask additional questions if the students are not assuming most of the primary responsibility for lawyering tasks to ensure that such an occurrence is by design. Other considerations are relevant in assessing the quality of the experiences offered in the clinical course. For example, the skills the student learns should be relevant to current practice standards. It is incumbent upon the clinical professor to ensure that the experiences the student engages in are not outdated due to changes in law or practice. For example, in at least several mid-western states, family law underwent drastic changes between the mideighties to the mid-nineties. Many open issues of pleading and practice became standardized by local court rules, forms, and procedures. If a clinical teacher chose a family law practice to emphasize pleading skills in 1980, a 1998 family law practice might not serve those purposes. The clinical law teacher must evaluate whether student experiences continue to serve the purposes for which they were originally chosen, or whether new purposes are more in line with current or emerging legal practice. Another question related to the quality of the experience is whether there are adequate support systems in place for the student to practice quality lawyering. The student should have access to current legal resources in the areas in which he or she is practicing. These resources should include local and state primary research materials as well as commonly used secondary sources. The student should have ready access to other professionals in the field and information and referral resources for clients. There should be adequate support for basic office functions such as producing written work and answering telephones as well as more specialized assistance such as computer applications and expertise about the specialty areas of law in which students work. Some clinics hire social workers to help students find resources for clients that inexperienced lawyers would not find on their own and to train students to work with non-legal professionals. The reviewer should once again be aware of the extent to which the allocation of these types of resources are within the control of the individual faculty member under review. Additionally, the clinic must work out a plan to integrate student work into local judicial or administrative legal systems. Clinical teachers consider numerous factors when deciding how to participate in the legal system. They include: whether certain types of work can integrate easily into the legal practice systems within the confines of the educational term; whether certain work will further law reform goals of the clinical program; political considerations such as the effect of the work chosen relative to the needs of the local bar or the sensitivities of local judges to having law students in their courtrooms; and whether 52

. See, e.g., Minna J. Kotkin, Reconsidering Role Assumption in Clinical Education, 19 N.M. L. REV. 185, 193-94 (1989).

61 indigent clients need a stronger or, in some cases, more confrontational voice. Finally, the clinical professor must monitor the students' caseloads. Do the cases assigned to students give them enough, but not too many, worthwhile experiences that emphasize the chosen skills? There is great diversity among clinics about the optimal caseload size. No specific number can be used as a benchmark because case types vary widely. For example, three students might work an entire term on one federal class action case in one clinic, while one student could competently handle five estate-planning cases in another. Moreover, clinics are offered for different amounts of credit, resulting in widely divergent allocations of time between students in different clinical settings. Attention should be paid to whether students have enough cases to have an experience worth reflecting about, but not too many cases to have no time for reflection. Substantively, the cases should be challenging without being too complex. These are issues that require frequent fine-tuning by the professor. C. Reflection The third step to good experiential learning is reflection upon the experience. Most clinical educators consider the reflection stage to provide the major source of learning. The professor should guide the student through a process of thinking about how well the action plan succeeded: did the student follow the plan as outlined? If not, why? If so, did it work? These sorts of questions form the crux of the post-experience supervision process. Thus, reflection is a feedback loop, taking the student back to a new action plan while learning from both good and bad choices. The process demands that students integrate the theory, the experience and real-life events to learn how to build upon strengths and improve upon weaknesses. Many clinicians find that rigorous reflection is the most important aspect of the learning experience. It is through reflection that clinical teachers instill a life-long habit of professional self-development and growth. 53 Clinical professors must make choices about guiding a student through the reflective process. One cannot go back and relive every moment of the experience, nor would an emphasis on minutiae be useful. n40 The clinical professor must help the student choose which aspects of the experiences are likely to yield helpful insights. These choices will be based upon the importance of the issues. This determination is at the core of the "art" of clinical teaching: assessing which issues are most important in a particular case and with a particular student is highly individualized and context-based. Faculty observing this process may have difficulty even noticing that the clinical supervisor is making these choices or adjusting a discussion to a particular student. The clinical teacher is responding not only to the objective performance level of a particular student, but also to that student's ability and willingness to learn in a reflective process. The level of attention to individual student needs is very different from the typical non53

Peter A. Joy and Catherine F. Klein, Nuts and Bolts of Evaluation and Feedback of Students: A Selected Bibliography on Student Evaluation and Justice Issues (visited Feb. 22, 2002)

62 clinical course. A breach of professional ethics may take priority over a strategic judgment about which witness to call first, or vice-versa, depending upon the judgment by the clinical faculty member of the most important needs at the time, the interests of the student or client, or the specific needs of the particular student. For example, the student may have frozen during an opening statement during the last hearing, so it would be logical to discuss the opening statement in a subsequent case. Moreover, a supervisor might conclude that a particular student is open to addressing only one major problem at a time, and save additional insights for later meetings. Often the clinical professor will "de brief" the student with a quick reflective session immediately after an event, and conduct a lengthier, more relaxed discussion in a later one-on-one supervision session. Sometimes students will be asked to reflect upon experiences through written assignments, including weekly journals or mid-semester evaluations. These types of self-reflective activities are critically important to a quality learning experience. Approaches to post-event reflection vary widely. One approach to a post-event briefing would be to first ask the student what he or she observed. Next, the supervisor might ask what stood out as interesting or important to the student. The student may be asked to describe what happened, how the student felt about what happened, and why the student thinks certain events occurred. The clinical faculty member might offer his or her own insights about what he or she thought happened. Finally, the supervisor may want to ask the student to consider what needs to be done next. Clinical supervisors will direct the conversation more or less depending upon the needs and abilities of the particular student; the important factor is that the supervisor must insure that the student thinks through the experience carefully and critically, with an eye toward using the insights gained to improve future work. It is important to note that reflection will often involve a discussion of specific skills such as interviewing, counseling, litigation, mediating, etc., but one should expect to see discussions of other types of issues as well. Gary Bellow and Bea Moulton n42 wrote that the most important aspect of clinical reflection involved the examination of tensions that arise when new professionals (students) assume the lawyer role. Such tensions include the interaction of ethical concerns, tactics, informal legal systems, and power imbalances. n43 One should expect a good clinical teacher to allow students to express their feelings and their thoughts about such tensions, and invite the student to explore the effects of those feelings on his or her lawyering. Moreover, reading assignments, class or other group discussions, and supervision meetings are often designed to raise these sorts of tensions. In particular, younger students often fail to recognize that they have strong feelings about what they observe: many students, especially those in their middle to late twenties, often experience sudden discomfort when faced with the reality of the world and of the legal system.54 This reality is often different from their preconceptions. Because a clinical course may be their first significant "realworld" experience, students often wrestle with personal moral belief systems while engaging in clinical experiences. Clinical faculty should know how to identify such 54

See id.

63 experiences and respond to them with empathy and compassion, while also challenging the student to tackle some of the moral issues analytically. Students come into clinical courses with a wide range of abilities, experiences, and learning styles. Clinical faculty members are in a position to observe specific professional problems that may arise. For example, some students are terrible procrastinators, cavalier about ethics or slow to learn important legal concepts. Such traits may lead to serious professional consequences if unchecked. It is the job of the clinical professor to address directly these types of problems. A clinical professor should discern serious professional problems as early as possible and discuss them with the student. Moreover, the good clinical professor will try to help the student come up with strategies for resolving these problems. Basic clinical program models Over the years, several clinical legal education “models” have emerged, reflecting a variety of settings and emphases:  University-based or “in-house” clinic. The clinic is physically located at the law school.  Community-based clinic. The clinic is physically located within the community served.  Live-client clinic. Students represent actual clients.  Simulation clinic. Students do not represent actual clients, but instead work on case files that simulate all the issues of a real case.  Externship program. Students work on real cases outside the law school with practitioners who supervise their work, often based at NGOs. A professor from the law school provides supervision to ensure that the students have a meaningful educational experience. Although each of these models has unique characteristics, they all share certain features, including the following: 1. use of interactive teaching methodology 2. focus on developing skills such as interviewing, counseling, negotiating, and oral advocacy 3. emphasis on ethical dimensions of legal practice 4. close supervision by a clinical instructor who has experience as a practitioner 5. extensive evaluation and feedback 6. work on real or simulated cases 7. a fostered spirit of public service

Establishing a clinical legal education program

64

a) Whose support do you need to start your legal clinic? Depending on the country in which you might establish the legal clinic, there will be differing issues regarding the approvals necessary in order to establish a legal clinic. In some places, approval of ministry officials is required; in most places, university support is necessary. Although it is often helpful to have the support of the judiciary and practicing lawyers in your community, this is not always possible, at least at the inception of the clinic. If the university or legal profession is not supportive, marshaling student and community support will be key issues for success. Legal clinics frequently begin with the support of a few members of the faculty who are willing to donate time, enthusiastic students, and a base of clients in need.

b) What are the financial issues to consider when starting a clinic? Clinical legal education is often more expensive than traditional legal education. While a traditional law professor may be able to teach 150 students in one class section, the clinic student/teacher ratio is much smaller, often comprising less than 10 students per instructor, because of the time-intensive and individualized nature of clinical teaching methods. Clinics also take up more physical space within the law school, requiring interview space, conference and student work space, office space for professors, and space for computers and related technology. A key issue is how the clinical instructors will be paid. Sometimes they are not paid at all and must teach in the clinics in addition to their regular teaching duties. In law schools, the regular teaching workload of clinical teachers is adjusted in order to allow them to teach in the clinic. In others, clinical teachers are paid a supplemental salary from foundation grants. Other paid positions required by a clinic might include part-time practicing lawyers working as supervisors and an administrative assistant to run the clinic office. Sometimes students are hired to be part-time office managers. Foundation grants may be available for some new clinics to cover a portion of these costs, but often a clinic must be able to show that it will be sustainable into the future once the grant period terminates.

c ) What will be the subject matter of the clinic? When choosing the subject matter of a clinic, the following issues should be taken into consideration:

65 • • • • •

the availability of instructors to set up and teach in the new clinical law program the areas of law in which the best teachers specialize the most common legal issues affecting the poor in the community the kinds of cases that will allow students the greatest range of practice the legal subjects that students been exposed to in their substantive classes

Legal clinic practice areas in Central and Eastern Europe, Russia, and Central Asia Law schools in the region’s democracies have chosen from a variety of legal specializations as vehicles for teaching lawyering skills. Among the most popular are the following:



Civil law practice (including marital and family law, wills, estates and inheritance, and property disputes).

Due to the breadth of this area, clinics usually select subsections of the civil law on which to focus. The services provided by these clinics include advising and representing clients in divorce cases, custody determinations, distribution of marital property, and related matters; advising, assisting, and representing in matters arising out of wills, or the absence of wills after a party’s death, disappearance, or incapacity; and advising and representing in matters related to familial property, demarcation of property between neighbors, property privatization practices, dissolution of partnerships, and collectives.



Refugee and asylum law. Serving the legal needs of internally displaced people, refugees and asylum-seekers.



Human rights (often combined with refugee and asylum law clinics). Assisting clients in disputes with state administration and filing applications to the European Court of Human Rights for violations of human rights protected by the European Convention on Human Rights, such as the right to fair trial or the right to freedom of expression.



Criminal law and procedure. Advising and representing clients charged with less-serious criminal offenses.

66 

Environmental law. Representing individuals and organizations who are seeking to protect the environment.



Administrative law. Providing representation in matters concerning official permissions, licenses, and other legal issues that involve interactions with and hearings before administrative agencies.

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Not-for-profit law. Providing legal advice and assistance to NGOs on formation, registration, taxation, and transactional issues.



Street Law (teaching). Training students to teach law in secondary schools and other institutions.

d) Who will teach in the clinic? Clinic teaching is different from academic law teaching in that it involves knowledge about the practice of law, not just theory. Sometimes clinic teachers or supervisors are practitioners who have never taught before. In such situations, teacher training in the interactive methods and pedagogy of clinical teaching are crucial to the effective operation of the clinic. On the other hand, clinic teachers may be professors who have never worked on a real case. Under such circumstances, the clinic instructor may be paired with a practitioner who agrees to work with the clinic. In any event, the background of the teacher who is chosen to teach in the clinic will greatly influence the choice of the type of clinic and its subject matter.

e ) How will students be selected and what type of credit will they receive? Student selection policies differ from clinic to clinic; what is important is that there is a policy regarding the number of students who will be allowed to participate in the clinic in each academic year or semester, the required background of the students, and the academic prerequisites to taking the clinic. Each of the universities that offers clinical legal education has chosen its own strategy for introducing the concept into its particular system of legal education. Some law schools clinics fulfill the university requirement. Other universities offer “legal clinic” as one of

67 the total number of courses required for graduation. Still others allow the clinical course in a particular subject area to substitute for advanced-level lecture courses in that subject area.

f ) Determining the scope of student practice Laws of Central and Eastern Europe, Russia, and Central Asia vary significantly as to what responsibilities non lawyers can undertake. In some countries, the civil procedure codes allow defendants and parties in civil suits to represent themselves or to allow another individual (a non lawyer) to represent them. Under such a provision, a client could authorize a student to represent the client in court (in conjunction with the supervision of an experienced attorney) by a power of attorney. Many nations procedural codes establish types of cases in which only licensed advocates may represent a party in court. Some aspiring clinicians have addressed the issue of authorization to appear in court on behalf of clients by campaigning for affirmative legislative approval of student practice. Another approach might be to convince specific judges and prosecutors to allow limited student argument or witness questioning in court on an experimental basis as a matter of their discretion. However, it is important from an ethical perspective that clients understand they will be represented by students, and that they give their written consent to this representation. The value of a student’s practical experience, however, does not hinge on appearing in court. Students can perform a tremendous range of vital legal tasks for a client without entering a courtroom. Students can engage in pre-litigation or other activities on behalf of the client, investigate law and fact, draft memoranda recommending legal actions, interview and prepare witnesses for court testimony, and prepare complaints or pleadings for either a client’s or a licensed attorney’s signature.

g ) Developing policies and procedures relating to student work It is vital to develop clear policies and procedures for students regarding all aspects of the organization and administration of the clinic, including the number of hours students must spend working on clinical matters, their responsibilities in the clinic, record keeping, and ethical matters. Every clinic should have a set of policies and procedures so that the students know their responsibilities in all areas, including record keeping, ethics, classroom work, interacting with clients, keeping time records, and so on. New legal clinics will find that by preparing a policies and procedures manual, they will resolve all of the most important issues in setting up their clinic, from the organizational structure to practices regarding supervision.

68 Ten Practical Steps for Organization and Operation of a Law School Clinic

Richard J. Wilson has suggest these ten simple steps to any law school in the world, based on belief that the experience of law school clinic design and teaching is universal and capable of being applied in any culture. 55 The ten steps need not all be taken at the same time; gradual implementation of these steps toward an “ideal” clinic is progress The ten steps derive from a common set of questions that all of us must ask ourselves as both legal educators and lawyers. They are so basic that we sometimes forget to ask them, but they certainly include the following:

Organizational Steps

Step 1: Decide on the goals or objectives of the clinical component of legal education within the general scheme of legal education in your own institution. Successful clinical programs are designed in response to local conditions and capacities. Among the many possible goals that your clinic might have are the teaching of problem-solving techniques; action in role; collaboration; professional responsibility; technical skills competency; time management; sensitivity to issues of gender, ethnicity, religion or culture; written or oral advocacy and persuasive skills; doctrinal manipulation to advance an actual legal claim; critique of legal institutions, and others. At American University, we give primacy to the goals of work with facts and factual development (on the assumption that other law school training focuses almost entirely on law or codes, either substantive or procedural); theories of practice applied consistently to the cases and clients of the clinic; and the concept that one case is a metaphor for all cases, thus making efficiency a lesser goal than the necessarily slow unfolding of student and client decision-making through deliberate planning, doing and reflection. Another aspect of goal setting is that of situating clinics within the broader educational requirements for admission to law practice in the particular jurisdiction. In addition to a period of formal legal education, those rules may require a post-graduate period of apprenticeship; specialized training for prosecutors, judges or court advocates; mandatory social service during law school; a bar examination and/or mandatory enrollment in a bar, or other such steps toward licensure. An effective program of clinical legal education can work in combination, not in competition, with other aspects of legal training, all of which share the common goal of preparation of lawyers for competent professional service.

55

Richard J. Wilson clinical teacher, Professor of Law and Director, International Human Rights Law Clinic.

69 Step 2: Identify appropriately trained personnel to be dedicated to the clinic. Clinic is like no other aspect of legal education; it is, in effect, the establishment of a law firm within the faculty. One fundamental question, therefore, is the characteristics of a “clinical professor.” In my view, the professor working in the clinic would be involved in both case supervision and classroom teaching, which tends to create sufficient responsibilities for full-time employment in the law school. The question of the status within the faculty of the clinical professor should be clearly established before the clinic is opened. A teacher should not take on clinical work in addition to classroom teaching responsibilities without appropriate recognition and adjustment of teaching load and/or compensation, due to the demands of clinical teaching. Because many law teachers outside of the US are part-time academics as well as local practitioners, that combination contributes to excellent potential as a clinical supervisor. Another common option is to have a faculty member coordinate the clinic and teach a seminar while local experienced lawyers, hired to work in the clinic, provide case supervision. The number of teachers dedicated to clinic will be a function of the number of subject areas offered, student interest, short and long-term resource commitment and other factors. In the United States, a 1990 survey (the last national survey of clinics) shows that the average ratio of teacher to students in a clinic was just over 1 to 8.2 In addition to teachers, the clinic may require support personnel who are skilled at contact with the public and trained in making referrals, unless these functions are to be filled by students. An office manager may be necessary in larger programs.

Step 3: Select the subject matter area in which the clinic will practice. Again, this issue is usually an intensely local decision, depending on the geography, courts or government agencies as well as the composition of the client constituency to be served. A formal survey of such issues may be appropriate before work is begun. The basic issues will include whether the clinic will engage in litigation only, as is the usual tendency, or in other areas of practice, such as transactional, legislative or other policy advocacy, or long-term community development. The most common starting place for a new clinical program is in a subject-matter area such as criminal, civil, administrative, or family law practice. Other options include particular legal themes or mechanisms (discrimination, minority rights, human rights, public interest, community development, Street Law, NGOs, mediation, legislation, etc.) or affected groups (women, children, indigenous peoples, refugees, prisoners, etc.). Choice of practice areas is often a function of the interest or motivation of a particular professor, whose commitment to the long hours of clinical work may be driven by experience, passionate dedication or scholarly interest.

Step 4: Select a time period for student enrollment in clinic and the appropriate academic credit to be awarded for clinic participation. The most common time period for student enrollment is one or two semesters, sometimes with an option for re-enrollment. Any clinic needs to decide what to do about academic interruptions such as summer and vacation closings. Court and government operations usually continue during these breaks, and either students or faculty will remain responsible for cases during such periods. Again, the level

70 of student involvement in case work may influence their credits, and students should not become a substitute for government responsibility to provide subsidized legal services to the indigent, consistent with constitutional and human rights obligations. Confusion in the goals of teaching versus service to the public can result in a failure on both counts: lack of adequate training of students and poor quality of service to clients. The typical caseload of a typical two-student team in clinics at American University is 3-5 active cases at a time.

Step 5: Devise a system for effective student evaluation or grading. Participation in clinic can be on a pass-fail basis, or grades can be given. Evaluation in clinic is highly complex and necessarily subjective, even in the rare cases that exams are given at the conclusion of clinic participation. This is because the student experience in cases is variable depending on clients, court schedules and other indeterminate factors. In fact, as one colleague asserts, “grading can become the enemy of learning.” We use a system of self-evaluation in which students write reflective memoranda on their experience in the areas that we have set out as clinic objectives: case theory, client interaction, collaboration, time management, etc. We give grades for both casework and seminar.

Step 6: Have a system in place to recruit both students and cases to the clinic. When a clinic is new to a law school, students may be skeptical about its utility to them. They must be convinced of the value of clinical study unless participation is mandatory. They quickly see that clinic participation is exciting and challenging work that makes them more employable after graduation. If the clinic requires certain pre-requisites to enrollment, students should have ample notice of those requirements. At American University, where interest in clinic always exceeds our capacity to enroll students, we use a system that includes a general informational meeting before the filing of a written application, followed by selection based on student preferences, all in advance of normal enrollment periods. Selection of students for clinics can be based on open enrollment (all who apply are accepted), grades, previous experience, or lottery. The system is a “guided lottery,” in which some preference is given to those students who have not yet enrolled in clinic and do not have another opportunity, as well as special needs, such as racial and gender balance among students and language skills. Case recruitment is also an issue. If clients are expected to come to the law school or a separate clinic facility, they must first know of the availability of services. That process of publicity of the clinic involves publication of flyers and other use of local media to publicize access to the clinic, visits with courts and other public meeting facilities, and word-of-mouth. If cases are taken on referral, local NGOs or other referral sources must be cultivated to establish appropriate protocols for case referral and oversight.

Step 7: Establish a budget and reliable financial sources for the clinic. Many would list this as the first and all-important step. I see it, however, as an effect of good planning, not a

71 cause. If the clinic has good objectives and goals, it will quickly acquire legitimacy within the law school and the surrounding community, and its legitimacy will attract funding. The long term objective is that the law school itself will provide stable and ongoing funding of clinical instruction as a key component of the curriculum, and that the value of clinical education to the students, faculty and legal community will more than make up for the labor intensive work of the faculty in this context, just as has been true of all the other professions that use clinical training as an aspect of their training.

Operational Steps

Step 8: Build new and ongoing relationships in the legal community outside of the law school. For a clinic to operate effectively, it must have strong ties in the legal community outside of the law faculty. These include the local bar, judges and other court officials, ministries and other government agencies providing services in areas in which the clinic works, NGOs, and other law school faculties. To provide competent legal services, a clinic must have a comprehensive means of keeping its teachers and students abreast of current developments in law and legal institutions through publications and continuing legal education conferences, email, Internet and other means of communication. In the United States, there are two associations for the more than 2,000 nationwide clinical teachers at more than 160 law schools, one affiliated with the general association of law schools and the other independent.

Step 9: The legal clinic must be able to manage its cases as a law firm within a law school. The many issues involved in law firm management are too detailed to document extensively in this short paper. Two of the most significant issues that lie at the intersection of legal education and law practice are those of appropriate student supervision and expectations of “student attorneys.” Supervision of law students has attracted more interest as a subject of academic study than any other in the now well-developed field of clinical scholarship, sometimes called “the theoretics of practice.” The use of non-directive techniques for student work oversight – techniques that permit the student to assume full responsibility while assuring competent representation of the client – are among the most challenging issues for clinical teachers. Similarly, in foreign legal clinics there is often a need to set specific hours or mandatory attendance requirements for clinic students to assure that they devote the necessary time to clinic to earn their academic credits.

Step 10: Design a practical seminar to be offered in conjunction with clinic casework. The focus of a clinic seminar is ordinarily not the teaching of legal norms, doctrine or procedure. It is assumed that students will have studied or read sufficient material on these

72 areas to perform competently. While very few materials exist outside of the US on skills teaching, the seminar’s primary focus should be on the experiential teaching of a structure to the skills, ethics and values of law practice. Again, experiential teaching is not an area in which many law school teachers have been trained, but competence in that area can be acquired by drafting problems, exercises and simulations that provide a context for student learning. Many of the materials published in English provide the basic structures for such instructional design (see accompanying Bibliography), and many schools have developed their own materials on skills, ethics and values for students. Our seminar syllabus at American University uses a single, continuous simulation that tracks the case of a prototypical clinic client through all stages of representation, and it unfolds throughout the entire academic year. The first semester in our course emphasizes basic skills – interviewing, case theory, fact investigation, counseling, negotiations, selection of experts – while the second focuses on trial skills, with additional material on lawyering for social change and professional satisfaction issues. Some clinics use an orientation period of 1-3 days before classes start as a way to prepare students for the new style of learning, as well as a way to team-build and identify student capabilities for purposes of case assignments. Another innovation used in conjunction with clinic seminar is a variation called “clinical rounds.” This context, adopted from medicine, focuses on student-led discussion of issues and problems in cases or projects. Rounds build student capacity to use legal vocabulary and the narrative of legal structures in a way that builds confidence and articulation, as well as developing a sense of collaboration, since other students often offer helpful problem solving techniques from their own experience. However these ten steps are not foolproof, nor are they a panacea to the problems of clinic design and method. It is hoped, however, that they can provide a roadmap to establishing a new clinical program, and that they will inspire to begin that project in near future.

Institutionalizing a Social Justice Mission for Clinical Legal Education: Cross-National Currents from India and the United State56 Clinical law teachers around the world have been debating the future of a social justice mission for clinical legal education at the same time that many clinical programs have increased their emphasis on professional skills training. It examines a unique opportunity in India today to merge these sometimes competing goals by institutionalizing social justice-based clinical legal education at all Indian law schools. It also traces certain influences the US clinical movement has had on this development. 56

. Frank S. Bloch Vanderbilt University Law SchooL November 2005, NYLS Clinical Research Institute Paper No. 05/06-6

73 Over the past forty years, clinical legal education has struggled over where to place its primary emphasis: providing students with the skills training needed to improve lawyer competence or engaging them in supervised high-quality public service. Although public service remains an important part of clinical legal education in both India and the US, professional skills training has begun to overtake social justice as the defining mission of clinical legal education - particularly in the US. The social justice mission remains comparatively strong in India in part because there has been a long-standing effort to involve law schools in a national legal aid scheme, but the goal of establishing law schoolbased legal aid programs at the national level remains largely unachieved. The stage is set now in India to implement a social justice-based clinical curriculum that would give formal sanction to the effort to link legal aid and legal education reform, and would move India beyond clinical legal education's traditional dilemma in a way that could prove instructive for the rest of the world. The Bar Council of India has mandated a set of four practical papers that require the teaching of a variety of lawyering skills and a certain level of legal aid work. Moreover, the Law Commission of India recently endorsed the idea of introducing a professional skills curriculum drawing on an American Bar Association task force report (the Mac Crate Report). A critical look at the Mac Crate Report and its relevance to Indian legal education suggests the importance of different values and additional skills needed to secure these values in a meaningful way. A few examples of current clinical projects in India demonstrate how the four practical papers mandated by the Bar Council can be used to instill in law students, and thus in new lawyers, those fundamental values and skills needed to transform the legal profession in India. These examples also show that, at least for the time being, this can be achieved without major changes in the present setup of law schools and without significant additional financial support from either government or private organizations. But more is needed to fully institutionalize social justice-based clinical legal education in India and for Indian society to obtain the benefits of a reformed legal profession, including financial and intellectual support from the bench, the bar, and the government. Prof. (Dr.) N.R. Madhav Menon , Director, National Judicial Academy, Bhopal, Former Director, National Law School of India University and Former Vice Chancellor, West Bengal National University of Juridical Sciences, visited the University on October 12, 2005 and delivered a key note address on “Legal Education in Social Context”. A Padamshree, Dr. Menon pointed out the convergence of law and economics and the need to remodel the legal education in India on those lines. Known as the ‘Father of Legal Education in India’, Dr. Menon stressed on the importance of social values and democratic ideals to develop ‘Social Judging’. He called for a social context legal education blending equity, equality and jurisprudence.

CONSTITUIONAL AND LEGAL STATUS OF CLINICAL LEGAL EDUCATION

74

Agencies Regulating Legal Education The Constitution of India basically laid down the duty of imparting education on the states by putting the matter pertaining to education in List II of the Seventh Schedule. But it now forms part of List III, giving concurrent legislative powers to the Union and the States . Legal profession along with the medical and other professions also falls under List III (Entry 26). However, the Union is empowered to co-ordinate and determine standards in institutions for higher education or research and scientific and technical institutions besides having exclusive power, inter alia, pertaining to educational institutions of national importance, professional, vocational or technical training and promotion of special studies or research. Empowered by the Constitution to legislate in respect of legal profession, Parliament enacted the Advocates Act, 1961, which brought a uniformity in the system of legal practitioners in the form of Advocates and provided for setting up of the Bar Council of India and State Bar Councils in the States. Under clause (h) of sub-sec (1) of Sec.7 of the Advocates Act, 1961 the Bar Council of India has power to fix a minimum academic standard as a pre-condition for commencement of a studies in law . Under clause (i) of subsec (1) of Sec. 7, the Bar Council of India is also empowered "to recognize Universities whose degree in law shall be taken as a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities". The Act thus confers on the Bar Council power to prescribe standards of legal education and recognition of law degrees for enrolment of persons as Advocates. However, for promoting legal education and for laying down standards of legal education, the Universities and State Bar Councils must be effectively consulted . The University Grants Commission has in the course of time evinced interest in improving legal education and has taken various steps towards that end, through adequate funding, creation of senior posts and other means. The Law Commission of India in its 184'h report felt that legal education is a fundamental to the very foundation of judicial system2. It also felt that clinical legal education should be made compulsory which wi!1 be ,an excellent supplement to the legal aid.57 The Indian constitution aims at securing, social, economic and political justice·. Article 39-A is the direct and express provision of legal aid, which reads as: “Equal Justice and Free Legal Aid: the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall in particular, provide. free legal aid, by suitable legislation or schemes or in any other "way, to ensure that opportunities for securing justice are not denied to any citizen by reasons of economic or other disabilities.” 58 57

See Law Commission of India 184 report on the legal education and professional training and proposal for amendment to the advocates act 1961 and the universities grants commission act 1956. 58

Article 39-A, inserted in part-IV of the Indian Constitution by 42nd Amendment Act 1976.

75

The National commission to review the working of the constitution6 recommends that the following new article should be added to the constitution making, legal aid as a fundamental right: 30-A: Access to courts and Tribunals and speedy justice 1) Everyone has a right to have any dispute that can be resolved by the application of !aw decided in a fair public hearing before an independent court. or, where appropriate, another independent and impartial tribunal or forum. 59 2) the right to access to courts shall be deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object. 30-B: Equal justice and free legal aid: the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen ;::'y reason of economic or other disabilities. In Center for Legal Research v. State of Kerala, 60 it has been suggested that in order to achieve the objective of Article 39A, the State must encourage and support the participation of voluntary organizations and social action groups in operating the legal programme? Therefore, the State cannot avoid from its constitutional obligation to provide legal services to indigent litigants who are facing financial and administrative difficulties the Government should set up a "suitors fund" to meet the cost of defending a poor or indigent. 61 In State of Maharashtra v Manubhai Pragaji vashi, the Supreme Court held that Article 21 read with Article 39-A mandated or cast a duty on tile State to extend the grant-in-aid scheme to all Government recognized private Law Colleges according to the criteria applicable to the regular degree colleges. The purpose of giving grants to law colleges is to enable those colleges to function effectively and in a meaningful manner and turn out sufficient number of well trained or properly trained law graduates. 59

.See Report of The National Commission to review the working of the Constitution, 2002, Universal Law Publishing co..Pvt Lld.vol-I, pp63-64. 60

7.AiR 1986 SC 1322 .See Nandini satpathy v P.L.Dan;, AiR 1978 SC 1025, Haskot v State of Maharastra.AIR 1978 se 1548, Hussainara khatoor. (IV) v. Horne Secretary, State of Bihar, (1980) 1 see 98, Kha!ri v Stale of Bihar and others, AIR 1981 se 829, Suk Das v union territory of Arunachal pradesh, AIR 1986 SC 991. 61

.State Bank of India v N.S.Money. AIR1996SC1.

76

To implement the scheme for legal aid in India, the Legal Services Authorities Act was passed in 1987. The Act aims at providing a protective umbrella to the weaker sections of the society, against all injustices and giving it adequate funds. The National Legal Services Authorities set-up under the Act, provides for the constitution of Legal Services Authorities at the national, the state and the district levels. These authorities are to provide free and competent legal services with the aim of securing equal justice to the weaker sections of the society. The Act has introduced a scheme for deputing a Legal Aid Counsel in every court of Magistrate in the country for providing free legal aid assistance to poor prisoners. The Code of Criminal Procedure, 1973 under Section 304 provides for legal aid to an accused who is not represented by a pleader in trial before the court of session, provided that he has no sufficient means ·to engage a lawyer. The code requires that the court shall assign a pleader for his defence at the expense of the State. Section 304(2) of the Code, empowers the High Courts to make rules in this connection. The State government is also authorized, by notification, to extend the legal aid to an accused in case of trial before any co u rt o f law .

THE BAR COUNCIL OF INDIA RULES (UNDER THE ADVOCATES ACT 1961)

Rules on Legal Education have been amended from time to time which were incorporated in the pre-existing regulations. There were demands for a consolidated latest version of the Rules under Part IV on standards of Legal Education and Recognition of Degrees in Law for admission as Advocates from Universities and College teaching Law in Country. In response to the popular demand, the Council is publishing the Rules in its final shape as applicable on 30.11.1998. For convenience, the date of introduction of particular amendment has been indicated separately at the end. Standards of Legal Education and Recognition of Degrees in Law for admission as advocates (Rules under Section 7 (h) & (i), 24(1) (c) (iii) and (iii)(a), 49 (1) (af), (ag) and (d) of the Advocates Act 1961). (As amended upto 30th November 1998) The following Practical Training Scheme shall be adopted by the Universities.

PAPER I : MOOTCOURT, PRE-TRIAL PREPARATIONS AND PARTICIPATION IN TRIAL PROCEEDINGS This paper will have three components of 30 marks each and a viva for 10 marks.

77 (a) Moot Court (30 Marks) : Every student will do at least three moot courts in a year with 10 marks for each. The moot court work will be on assigned problem and it will be evaluated for 5 marks for written submissions and 5 marks for oral advocacy. (b) Observance of Trial in two cases, one Civil and one Criminal (30 marks): Students will attend two trials in the course of the last two or three years of LL.B. studies. They will maintain a record and enter the various steps observed during their attendance on different days in the court assignment. This scheme will carry 30 marks. Interviewing techniques and Pre-trial preparations (30 marks) : Each student will observe two interviewing sessions of clients at the Lawyers’ Office/Legal Aid Office and record the proceedings in a diary which will carry 15 marks. Each student will further observe the preparation of documents and court papers by the Advocate and the procedure for the filing of the suit/petition. This will be recorded in the diary which will carry15 marks. The fourth component of this paper will be Viva Voce examination on all the above three aspects. This will carry 10 marks. PAPER II . DRAFTING, PLEADING AND CONVEYANCING This course will be taught through class instructions and simulation exercises, preferably with assistance of practicing lawyers/retired judges. Apart from teaching the relevant provisions of law, the course will include 15 exercises in Drafting carrying a total of 45 marks and 15 exercises in Conveyancing carrying another 45 marks.(3 marks for each exercise) Drafting:- General principles of drafting and relevant substantive rules shall be taught. Pleadings: Civil :(i) Plaint (ii) Written Statement (iii) Interlocutory Application (iv) Original Petition (v) Affidavit (vi) Execution Petition and (vii) Memorandum of Appeal and Revision (viii) Petition under Article 226 and 32 of the Constitution of India. Criminal : (i) Complaints (ii) Criminal Miscellaneous petition , (iii) Bail Application and (iv) Memorandum of Appeal and Revision. Conveyancing: Sale Deed (ii) Mortgage Deeds (iii) Lease Deed, (iv) Gift Deed (v) Promissory Note (vi) Power of Attorney (vii) Will.

78 The remaining 10 marks will be given in a viva voce examination which will test the understanding of legal practice in relation to Drafting, Pleading and Conveyancing.

PAPER III : PROFESSIONAL ETHICS, ACCOUNTANCY FOR LAWYERS AND BAR BENCH RELATIONS This course will be taught in a association with practicing lawyers on the basis of the following materials: Mr. Krishnamurthy Iyer’s book on "Advocacy". The Contempt Law and Practice. The Bar Council Code of Ethics. 50 selected opinions of the Disciplinary Committees of Bar Councils and 10 major judgments of the Supreme Court on the subject. The Written examination on this paper will have 80 Marks and the viva voce will carry 20 marks. In lieu of the written examination, colleges may be encouraged wherever appropriate to give the students, Seminars and Projects where they are expected to research and write persuasive memoranda on topics identified in the above subjects.

PAPER IV : PUBLIC INTEREST LAWYERING , LEGAL AID AND PARALEGAL SERVICES This course carrying 100 marks will have to be designed and evaluated according to local conditions by the colleges in consultation with the Universities and State Bar Councils. It can be taught partly through class room instructions including simulation exercises and partly through extension programmes like Lok Adalat, Legal aid Camp, Legal Literacy and Para Legal Training. The Course should also contain lessons on negotiations and counseling, use of computer in legal work, legal research in support of Public Interest Litigation, writing of case comments, editing of Law Journals and Law Office management. The marks may be appropriately divided to the different programmes that each University might evolve for introduction in the Colleges under its control.

AIMS AND OBJECTIVES - PRACTICAL TRAINING PAPERS

79 1) Moot-Court, Pre-Trial preparation and participation in trial proceedings: This paper is designed to explore the possible skills as to legal analysis, legal reasoning, legal research, communication, competent representation, Trial participation, problem identifying and problem solving. 2) Drafting, Pleading and Conveyancing: The aim and object of this paper is to teach skills such as organizing the factual information gathered, written communication and effective method of presentation. 3).Professional Ethics, Accountancy for lawyer and Bar-Bench relations: It deals with ethical dilemmas, such as the nature and sources of ethical standards, the means by which the ethical standards are enforced the. process of recognition and resolving the ethical dilemmas. 4) Public Interest lawyers, Legal Aid and Para-Legal Aid Services: The instruction in this paper involves the students in community services, by participating Lok Adalat, Legal Aid, Legal literacy and para-legal trainings. Further it also develops skills like factual investigation, negotiation, mediation and counseling techniques. CLINICAL LEGAL EDUCATION AND PRACTICAL TRAINING PAPERS In 1994 Justice Ahmadi Committee Report dealt elaborately with teaching methods. After reviewing the recommendations made by Justice Ahmadi Committee, the Bar Council of India(BCI) introduced a one year training rule. The Report recommended inclusion of the problem method, moot courts, and mock trials in law college curricula. It also suggested supplementing the lecture method with the case 62 method, tutorials and other modern techniques for imparting legal education. Further.it recommendsall these new methods be made mandatory, it discarded the suggestion of bar examination as a prerequisite to enrollment. However, the BCI received a setback when this rule was challenged in the Supreme Court in V Sudheer v. Bar Council of India 13 (1999) 3.SCC 176 the Supreme Court struck down the rule as ultra vires to the Advocates Act and held that the Bar Council of India is not competent to pass such a rule. Such rule can be introduced only by the legislature. It was in response to the Apex court's decision that the Bar Council of India introduced the four practical papers to improve the standards of legal education, namely 1. Moot-Court, Pre-Trial preparation and participation in trial proceedings. 2. Drafting, Pleading and Conveyancing. 3 .. Professional Ethics, Accountancy for lawyer and Bar-Bench relations. 62

see Law Commission of India .241h Report.

80 4. Public Interest lawyers, Legal Aid and Para-Legal Aid Services. These papers are aimed at providing practical training to law students. Until these papers were introduced in the curriculum very little efforts was made by law colleges to train students in skills of advocacy. Law colleges felt that training law students to work in the legal profession was not the job of the colleges but of the Bar. With the introduction of these practical papers, it is now mandatory for all law colleges to provide practical training. The Bar Council of India successfully thrust its responsibility of providing skills to the young entrants by incorporating four practical papers in LL.B. curriculum.'63

THE JOURNEY OF LEGAL EDUCATION, CROSSROADS TO MODERNIZATION

FROM

THE

Prior to the introduction of five year law course, most of the students who performed well in their Intermediate Education aspired to study medicine, engineering, computers, business management and accounting. Law as a profession and legal education as a discipline was not a popular choice of the students. Unlike India, the situation prevalent in England, America and in many other developed countries is convincingly different. The admissions to law schools in these parts of the world are highly competitive. The end result is that the 'creams' among students opt for law by choice and not as the last resort and thus richly contribute their shares to the society as lawyers, judges, para-legals and academicians. Though, five year law schools are doing their bit to bring about a change; but more effectively the perspective of prospective law students can be changed by a healthy prelegal education at the school level. Need for Reconstruction of Legal education in India Legal Education is essentially a multi-disciplined, multi-purpose 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. Spiritually, it is believed that the life on the earth is regulated by the laws of the Lord or the Divinity. It is 'rule of law', that draws the essential difference between human society and animal world. It is the legal education that plays a pompous role in promoting social justice. Education or awareness of laws, characterize the lawyers as 'Social engineers'. 63

.Bar Council of India C.ircular No: 4/1997. .See Dr. M.Pinheiro and M.R.K.Prasad. "Revisiting the Bar Council of India's Curriculum Regarding Four practici'l papers', Clinical Legal Education, First South Asian Conference of Law Teachers on Skills- Ethics Education{background papers) organized by VM. Sa/gocar Law College, Goa, December 16-18, 2005 61, 62, 63.Ibid.

81 Imparting of legal education has always been considered as one to the most noble profession. Legal education which is part of general education cannot be viewed in isolation. Today, legal education derives its impetus from the economic, social and political set up of the society. 'Law is the cement of society and an essential medium of change'. The significance of legal education in a democratic society cannot be over-emphasized. A knowledge of law increases one's understanding of public affairs. Its study promotes accuracy of the expression, facility in arguments and skill in interpreting the written words, as well as some understanding of social values. Chief Justice A.M.Ahmadi pointed out in one of his lecture, “I think we have waited long enough to repair the cracks of the Legal Education system of this country and it is high time that we rise from our arm chairs and start the repair work in right earnest.” The reforms in Legal Education and Legal Profession have been long over due. There have been voices sometimes sharp and sometimes subdued for such reforms. Unfortunately, no serious attempt could be made. In fact so far, we have miserably failed to look into the problems of Legal Education and Legal Profession, which have been squarely facing us at our face. It is no use now putting the dust under the carpet as the atmosphere above the carpet is fairly polluted; it is high time we seriously look into these problems. With the advent of globalization and India embracing a free market economy, it is the legal community that shall be called upon to play an important role in ensuring that the nation does not derail from the constitutional philosophy of equality and social justice. Their education, thus, becomes a matter of great import. The purpose of law schools should be to create an environment wherein law is not merely learnt but also researched, criticized and reformed. The training of students should be directed not only towards equipping them to solve the problems of their future clients but also play an active role in society. In other words not only should students be trained as advocates but also as judges, arbitrators, mediators, leaders and most importantly as guides to the masses. The present law has to meet the requirements of the society, which is entering into 21st Century. Law has to deal with problems of diverse magnitudes and a student of law and an Advocate has to be trained in Professional skills to meet the challenges of globalization and universalisation of law. With the advent of multinationals in India as anywhere else, the task of lawyers would be highly technical and an imperative need would arise to have competent lawyers who would be trained in the right culture of Legal Education. This makes a sound case for introducing reforms in Legal Education. The creation of new breed of lawyer depends itself on the creation of a new teacher. All curricular revision ought to be guided by one basic criterion viz. whether current doctrine and practice in particular areas of law serve to promote basic democratic values. While the teaching of black letter legal-doctrines is an important function of the law institute (college), it is not the only function. What is needed beyond the teaching of

82 doctrine and technique is a system of legal training devised to ‘aid’ the developing lawyer to acquire certain skills of thought, goal thinking and scientific thinking. The student needs to clarify his moral values, social goals, he needs to orient himself in past trends and future goals, he needs to acquire the scientific knowledge and skills necessary to implement objectives with in the context of contemporary trends. The law institutes must provide a realistic and comprehensive picture of the structure and functions of society and will also be oriented towards the implementing of a consistent and explicit set of democratic values. He will not only be lawyer for the future but also be a social technician or social engineer. The practical ‘know-how’ has to be known by the all law graduate. The young graduate’s lack of ‘know-how’ is soon cured by experience, whereas the graduate without broad scholarship background and strong analytical reasoning ability never recovers. The public is much more apt to suffer seriously from the latter type of lawyer over the long-pull than from those who lack practical ‘know-how’ at the beginning of his practice. The quality and style of Indian legal education that was prevailing for the last fifty years was unsatisfactory. So obviously it did not attract first-class minds as students or as teachers. Facilities, including the all-important library, are poor and not properly maintained. The Indian law teacher had to cope with a low salary and a heavy teaching load; fifteen to eighteen hours a week are normal for full-time lecturers. Where as, if a good hard working student works for 5-7years in a High Court or other court he earns a good handsome amount at the end of the month. There is no established tradition of legal scholarship as an integral part of a teacher's life and duties. On the other hand these teach could not participate in different projects as an advisor to guide them legally. With all these things some step has to be taken on the individual and society level also. (1) Not to allow the three-year LL.B. course to continue as before side by side with the five year integrated programme; (2) Follow the distinction between professional and liberal legal education in categorizing the over 500 law teaching institutions for extending BCI jurisdiction; (3) BCI has to increase the eligibility criteria for admission to the professional law course; there is need to fix the age to get entered into a law college. (4) Mobilization of funds for supporting improvements in legal education, particularly among institutions located outside metropolitan cities; the institution situated out side the metro city is suffering from various problems due to lack of fund. They could not afford a good law library. They did not have the chance to get other facilities of the metros. They could not invite good faculty for these lack of fund. On the other hand all these good faculty prefers to stay in a Metro cities. (5) Revision of the pre-enrolment apprenticeship scheme or any other viable alternative to ensure minimum professional competence on the part of fresh entrants to the profession;

83 there is need for an Minimum criteria to enter in a bar otherwise it will turn in a mess. Bar counsel should make some regulation for the coming law students. (6) Full-time teachers from practicing law and thereby depriving students of the benefit of services of these teachers; after completion of the course every one hade to go for the practical use of the law. (7) A meaningful guidance for institutionalizing clinical teaching (of skills) and imparting education on professional ethics. (8) All the experts of a particular discipline should take a start detailed studies on that subject. In the recent years we saw Indian Institute of technology, Khargapur come out with new course on law related to Technology and Computers. (9) We have to develop the interdisciplinary approach to legal education. Economics and law led to emergence of competition law; information technology led to the birth of cyber law, the list is endless. But at the end we can say only one thing that the main accountability is on the professional schools of law in maintaining standards of teaching, research and extension activities. And the initiative has to be taken by the BCI also to improve the law education in India. We know that its not so easy or not one day work to implement all the things but we have to start to take the initiative. Recognizing the need for modernization of legal education The conventional role of a lawyer is to step in after the event takes place, in order to resolve dispute and dispense justice to the aggrieved party. In the changed scenario, the additional roles envisaged are that of policy planner, business advisor, negotiator among interest groups, experts in articulation and communication of ideas, mediator, lobbyist, law reformer etc. In this the era of information capitalism, economic liberalization and WTO, legal profession in India has to cater to the needs of a new brand of legal consumer/client namely the foreign companies or collaborations. The law colleges are required to make strategic plans that set out a clear vision of justice delivery and also address the emerging realities of the market. Goal of the law schools should be to build a 'system of legal education' that: 1. Encourage Clinical training: In the past it was sufficient for those reading law to restrict their knowledge to the theories of law, codes or decided cases. However, in order to meet the new challenges of the present legal system, it is imperative that the law schools provide clinical legal education. 'Justice' must become central to the law curriculum and community-based learning must

84 give the desired value orientation in the making of a lawyer. This concept of justice education in the field of legal education means that the law school curriculum should entail certain programs like Lok Adalats, Legal Aid & Legal Literacy and para-legal training. The complementary teaching methodology of learning by doing and the conventional classroom teaching, through the law school clinics , help in developing the advocacy skills in the law students. 'Mock' trials and Moot court competitions, structured as court trial; client interviewing and counseling sessions; legal research; editing of law journals; legal drafting and conveyancing; court visits etc. in the curriculum is one of the ideal ways to facilitate performance based education. It is a means of improving in students the basic skills such as the skills of critical thinking, presentation skills, participation skills, the skills to work as a team, the leadership quality, in addition to the boost in students knowledge of law. Even though, in tune with the time, Clinical Legal Education holds an indispensable position, still its acceptance, existence and development in present legal education system, is at its nascent stages. Albeit the Bar Council of India, constituted under the Indian Advocates Act, 1961, is endowed with the responsibility by Parliament to prescribe and maintain the standards of legal education in consultation with State Bar Councils and universities teaching law, the curriculum adopted at various law schools has not been structured to give adequate time for clinical training programs. The divergence between law in books and law in action calls to strike a balance between the law curriculum and the teaching methods. The monologue lecture scheme adopted in law schools, where practical training is either totally neglected or marginally implemented at the level of Moot Courts, Court visits and legal research will not make good lawyers in today’s scheme of legal education. Most of the Universities due to lack of infrastructural support and lack of funds have failed to establish a clinic in the Law Schools which would facilitate the students to carry out experimental learning of law. It is pertinent that the University Grants Commission facilitates, by funding, the establishment of functional clinics and for promoting the programs like Lok Adalats, legal aid and legal literacy, client interviewing and counseling etc. Even those law schools where the clinics do exist, the results are fruitless, for the reasons of lack of resource faculty who have the competence and knowledge in clinical training. The teachers associated with the clinical education should preferably have some practical experience in law. Association of retired judicial persons, as visiting faculty would be instrumental in selecting suitable clinical experience for the students and enhance amongst the students the commitment to learn. Other constraints that curtail the law schools to foster higher standards of clinical legal education is the high teacher student ratio. Law being an interactive discipline there should not be more than 20 students to 1 teacher, so as to ensure adequate supervision, right guidance and extensive practical learning. There should be regular refresher courses organized by the authorities - 'training the trainers' which would consequently, help in

85 developing among the students, the aplomb which every advocate should possess. 2. Promote an inter-disciplinary approach of law with other social sciences: A person who studies law must have some proficiency in country's history, political theory, economics and philosophy, to enable him/her in becoming agents that participate in institutional changes. 3. Encourage proficiency in languages: Command over spoken and written language, effective oral skills, diction and extensive reading are pre-requisites that go without saying. Knowledge of a foreign language is important to be a lawyer in the global economy. Law students should be provided with the opportunity to learn a foreign language of their choice. 4. Personal Characteristics: Lawyers, solicitors, legal executives all need good intellectual ability, the ability to assimilate and analyse facts quickly. Law students hence need to develop their ability to distinguish the relevant form the irrelevant, screen evidence, and apply the law to the situation under scrutiny. The law students are further required to enhance the ability to argue, explain and convince points of law. They need to maintain their complete integrity of character and need mental and physical stamina in order to cope with the long hours, traveling and stress. 5. Promotes acquaintance with new technological means: Law schools and universities should be able to provide e-courses on the shelves. The teachers should put course materials on the Web, conduct on-line tests/assignments and grade students. Web-sites can lead learners to virtual class-rooms. Teachers and students should be oriented to look at the Web as an information provider. 6. Develop a critical outlook: Law teachers should switch over to what is called as 'comparative method of teaching'. The law students should be mobilized to evaluate the existing or prospective draconian laws, participate in discussions on the latest developments and required amendments.

86

IMPLEMENTING THE BAR COUNCIL’S MANDATORY PRACTICAL PAPERS THOUGH A SOCIAL JUSTICE BASED CLINICAL CURRICULUM As noted earlier, three of the four mandatory Practical Papers introduced by the Bar Council of India (and also mentioned in the Law Commission’s recent report) focus on general skills and professionalism, while the fourth paper addresses legal aid and public interest law. Their direct connection to a social-justice based clinical curriculum is, therefore, not that clear. Nor was the Bar Council’s original expectation for the papers. Some additional direction for implementing the papers can come from a recognized set of fundamental values and skills for Indian lawyers, such as those described in the preceding part of this article. The papers do, however, offer a unique opportunity for significant reform – even as presently written and understood. A. The Practical Papers on Paper A closer look at the four papers reveals that not only do they focus primarily on general skills, but they also place an overriding emphasis on traditional lawyering skills – with a few exceptions, such as negotiation and mediation. Paper I covers moot-court, pre-trial preparations, and participation in trial proceedings. The purpose of making every student participate in moot court is to develop advocacy skills. Students are also required to observe at least two sessions of client interviews in a lawyers office and they must participate in preparing various documents that are required to be filed with the court. Finally, students are expected to observe one civil and one criminal trial in order to become familiar with trial advocacy and court proceedings. Paper II covers drafting, pleading, and conveyancing. This paper aims at developing drafting skills and gives students an opportunity to learn how to draft plaints, written statements, sale deeds, etc. Paper III covers professional ethics, accountancy for lawyers, and bar bench relations. It focuses on ethical issues formulated by the Bar Council of India under the Advocates Act, including duties toward clients, opponents, colleagues, and the courts.64 Students must also undertake a mandatory 30-day internship in a lawyer’s office. At the same time, Paper IV – dealing 64

124 See Advocates Act, 1961 § 49 (1) (C).

87 with public interest lawyering, legal aid, and para-legal services – aims at providing social justice. This paper is flexible, allowing law schools to design course content according to local needs. The aim is to involve students in public service projects that address legal problems faced by people in local communities. These activities involve students in community service so that they can learn the difference between law in books and law in practice. This can be done in many ways, as discussed in detail later in this section.65 Paper IV also provides for instruction in various kills necessary to carry out these and other types of public interest projects, such as negotiation, counseling, fact investigation, and legal research. B. The Practical Papers in Reality: Their Limited Scope and Effectiveness Although the four papers, on their face, appear adequate to provide certain basic skills to law students, in reality they have not met even the limited expectations of the Bar Council – let alone the long term goal of establishing a fair, effective, and competent legal system, accessible to all citizens. As noted earlier, most Indian law schools are not able to implement these papers due to a lack of expertise; they have neither the infrastructure nor the personnel to implement them. Many law schools faculty have no familiarity with the new subjects and, due to the no-practice rule, the majority of faculty members do not have the necessary practical knowledge or experience. In effect, the Bar Council washed its hands of the matter by simply passing the obligation on to law schools – and the law schools have, in turn, relinquished their responsibility by assigning the four papers to the faculty without providing necessary support. The four papers are, in effect, “paper tigers”; most schools have introduced these papers with only token compliance, passing all students without observing serious standards. And most unfortunate of all, everyone seems to be happy; the Bar Council can claim it made its effort to improve legal education, law schools can claim they have successfully incorporated practical training, the faculty breathe a sigh of relief that the new system does not affect them much, and the students continue to graduate. Nonetheless, the four papers have caused considerable debate in India. This debate must now turn to the future and address seriously the legal academy’s ultimate ambitions for the papers and their potential to guide legal education reform. C. Creating a New Reality: The Practical Papers as the Basis for a Social-justice Based Clinical Curriculum Law schools are now in a position to accept responsibility for the practical training called for in the four Practical Papers. What is needed to make these papers meaningful is a combined effort from the law schools, the Bar, and the bench to implement them finally through a model of social justice-based clinical legal education – and to do so keeping in mind the principles behind the fundamental values and skills set out above. The purpose of legal education is not simply to encourage the lawyer’s function as champion of his or her client’s cause; lawyers are also educators, policy makers, and counselors. Lawyers can 65

125 See infra text accompanying notes 135-42. Examples include lok adalats and legal aid camps, legal literacy projects, and paralegal training.

88 make people aware of their legal rights and duties and they can bring public opinion to bear on law making, thus helping make the law more responsive to national concerns. By producing such lawyers, law schools can begin to serve India’s social justice needs.66 1.General Considerations and Options: Clinical legal education must shoulder the burden of preparing law students to meet these expectations for Indian lawyers. As noted earlier, this will not be easy as clinical education in India faces several serious challenges – including the fact that neither full-time faculty nor law students can represent clients.67 Further, stringent rules for qualifying as a law teacher discourage many advocates from becoming involved in clinical teaching. Since India is a vast multilingual and multiethnic country, a single model for clinical teaching is not possible. Particularly in providing legal aid, students are required to have sufficient knowledge about the local culture, living conditions, ethnic problems, and – most importantly – the local language. Further, significant differences between urban and rural lifestyles require different approaches to urban and rural social issues. In spite of these problems and drawbacks, law schools can implement a social justice curriculum through clinical education without imposing significant changes to the present curriculum. The key to success in this endeavor lies in the implementation of the four Practical Papers mandated by the Bar Council of India. Clinical courses or projects covering the papers can be used to instill in law students, and thus in new lawyers, those fundamental values and skills needed to transform the legal profession in India. Even with the ban on representing clients, students can be placed with an advocate willing to work with them. In addition, students can be encouraged to conduct legal research pertaining to a particular case assigned by the advocate under the supervision of a faculty member. Though students may not be able to acquire advocacy skills in this setting, they can acquire many other important lawyering skills. In addition, they can be encouraged to conduct legal research on issues of public importance. And where their findings are placed before the concerned government officer responsible for the matter involved and the officer does not take appropriate action, students can approach either the state High Court or the Supreme Court of India for redress in the form of Public Interest Litigation. Even though law students cannot appear before a court in ordinary litigation, they may do so in a Public Interest Litigation case. Law schools can also play a major role in sensitizing the public about their legal rights and duties. In a country like India, where about 225 million people live below the poverty line, focus on legal literacy programs is extremely important. Thus, the National Legal Services Authority recently established the National Legal Literacy Mission 2005-2010 in an attempt to empower economically and socially disadvantaged citizens by making them legally literate. The Mission is also intended to improve access to justice by disseminating legal awareness and knowledge of legal rights and by providing information about the availability of free legal aid. Thus, the Mission will follow a three-pronged approach: 66

127 See K. K. Mathew, Goals of Law Study, (1975) 128 The Advocates Act strictly forbids students from representing clients and BCI rules prohibit full-time faculty from practice as well, even pro bono litigation. See supra text accompanying note 46. 67

89 education on legal rights, education on fundamental duties, and education on the availability and benefits of legal aid. Working with these programs can help students in developing important organization, research, public speaking, and translation skills. Another option is for students to conduct legal research on welfare benefits provided under various social welfare schemes in order to identify the beneficiaries and to help them in submitting applications. Social welfare legislation can achieve its goals only when the people for whom they were advanced take advantage of them. Assisting in this task is a key factor in carrying out the social justice mission of legal education as it will expose students to the plight of their country’s poor and help them develop a sense of professional social responsibility. Another approach is for law schools to adopt a village and encourage students to conduct a survey to identify the problems that the people in that particular village face. After identifying the problems, students can approach the concerned authorities and arrange a public forum. Often, local authorities are not responsive to local citizens’ concerns, especially those from disadvantaged communities. The idea here is to inform villagers about the program and to encourage them to participate in the forum, so that they can meet the concerned officers on that particular day and can settle their grievances. Students can be instrumental in the smooth functioning of the entire program, and they can follow up on particular matters with the concerned officers. Such forums can be very effective, as the officers are put in a position where they must give their assurance in public and thus are less likely to follow the usual practice and not fulfill their promises. Law schools also can encourage and train students in performing street plays, skits, and other public performances to promote legal literacy and to advertise their legal aid clinics. Various issues such as untouchability, gender discrimination, domestic violence, children rights, and environmental issues can be the subjects for such plays. Students can also go to nearby schools and educate school children about the legal issues that concern them. Finally, law schools can affiliate with various NGOs to widen the practical training opportunities for their students. As noted earlier, the Bar Council of India’s four Practical Papers, particularly Paper IV on legal aid, must be implemented with the goal of imparting the fundamental professional values and skills that the modern Indian lawyer needs in order to fulfill the social and professional responsibilities of the legal profession. They can thus be used to institutionalize clinical education, including its social justice mission of providing a quick and effective, competent, fair, and accessible legal system. A few examples discussed immediately below – the operation of lok adalats, the provision of paralegal services at correctional facilities, and the various activities of legal aid cells at V. M. Salgaocar College of Law in the State of Goa demonstrate how social-justice based clinical education can be institutionalized in India consistent with the implementation of the Bar Council’s four papers. These examples also show that this can be achieved, at least for the time being, without major changes in the present setup of law schools and without significant additional financial support from either government or private organizations. 2. Implementing the Papers through Lok Adalats:

90 A lok adalat (people’s court) is an informal and voluntary dispute settlement process that operates outside the court system.135 Lok adalats are aimed primarily at settling disputes at the pre-litigation stage, as well as certain matters pending in trial courts where the parties can be motivated to arrive at settlement. They can well be described as a modern, official version of India’s ancient method of dispute settlement by Nyaya Panchayats. The lok adalat movement was started in 1982 in the State of Gujarat and has become a major source of reducing pending litigation before the courts 68. Despite this success, however, they have come under some serious criticism as a form of lesser justice for the poor. Law schools can take the initiative in organizing lok adalats with the help of the local bench and bar, as they are held across the length and breadth of India. As Professor N. R. Madhava Menon has observed, lok adalats provide students a variety of educational opportunities and can be incorporated very successfully into law school practical training. By studying lok adalats and participating in them, students gain a critical understanding of the proper role of lawyers in the legal system at the same time that they acquire professional skills. Working with lok adalats also affords students the chance to learn most of the important values and skills necessary for modern practice in India, including many of those discussed earlier in this article in the context of the Mac Crate Report. For example, lok adalats are ideal for learning negotiation and counseling skills because students negotiate between parties and help them bring their causes to a conclusion. In addition to these advantages, early exposure to the lok adalat system helps students adjust some of their general attitudes about the legal profession. Many Indian lawyers see lok adalats as a threat to their practice because they fear that if clients settle their dispute through lok adalats, which are faster than traditional dispute settlement, there will be nothing left for them to do. Students can experience the negative effect of this type of professional ethic through their direct involvement with lok adalats and will become more likely to accept alternative methods for settling legal disputes. More importantly, students become involved directly in improving accesses to justice and helping disadvantaged members of society, which opens them up to the wider roles of law in society and also gives them a sense of satisfaction and accomplishment. And, to the extent that students identify ways in which the lok adalat movement falls short of its improving- access-tojustice aspirations, they can be directed to address those short comings Law schools can easily afford to involve students in lok adalats, as there is no financial burden. Lok adalats are conducted by the local, district and high courts. Organizing lok adalats in collaboration with the local bar and judiciary is a natural choice for law schools to impart social justicebased clinical education.

3. Implementing the Papers through Paralegal Services in Correctional Home Another way in which law schools can implement social justice based clinical education is by providing legal aid and other paralegal services to prisoners. Nearly three out of four 68

According to National Legal Services Authority (NALSA), 72,038 Lok Adalats had been organized throughout the country by the end of June, 2000 and about 12 million cases had been settled.

91 inmates in India are awaiting trial, with many prisoners languishing in jails due to delays in filing police reports. Often these prisoners are illiterate and poor, and are not able to pay bail bonds. In fact, many prisoners are detained far longer than they would have been had they been found guilty soon after their arrest. Even those willing to confess must wait until their case comes up for a hearing. Law schools can have a significant impact on prison administration in India by providing basic legal help. In fact, the National Legal Services Authority has requested State Legal Services Authorities to set up legal aid cells in jails to provide prompt legal services to prisoners. Through this work law students would be able to acquire and practice skills such as interviewing, drafting, and fact finding techniques. It also provides an excellent opportunity for the students to learn how criminal administration works and what their responsibilities would be as public defenders, prosecutors, or even presiding officers. And by entering into the field in a real-world context, they will gain an understanding of the human side of the criminal process and perhaps even an understanding of the patterns and causes of crime. Finally, as with lok adalats, this type of clinical experience can be provided at no significant additional cost to the law schools by working in cooperation with local prison and legal services authorities. 4. Some Examples of Implementation: Legal Aid Clinics at V. M. Salgaocar College of Law in the State of Goa With a strong desire to serve the society both by providing free legal assistance to the general public and by producing competent and socially sensitive legal professionals, V. M. Salgaocar College of Law started the “V. M. Salgaocar College of Law Legal Aid Society” in 1998. After prolonged discussions with faculty members, the principal of the college convinced the students to make it compulsory for all students to join the Society. Today, the college’s Legal Aid Society operates thirty-five permanent free legal aid cells all over the southwestern coastal state of Goa. The underlying ideology of the legal aid cells is that legal professionals cannot live in ivory towers; they should not only see and sense social realities, but should also direct their activities towards promoting social justice. The Legal Aid Society works toward achieving its stated objectives in a number of diverse ways, including permanent free legal aid cells, mobile legal aid cells, paralegal services, and public interest litigation. These clinical projects implement directly Practical Paper IV, the paper on public interest lawyering, legal aid, and paralegal services. They also implicate, as is the case with lok adalats and prisoner paralegal services discussed above, much of the content of the other three papers – as well as most, if not all, of the values and skills that would be included in an India-modified Mac Crate Report. Each of these is described briefly below, as well as some other projects of the college’s clinical program.

Permanent free legal aid cells: The Legal Aid Society’s thirty-five permanent legal aid cells are set up and housed largely in Panchayati (county) buildings, schools, and church or temple premises, selected on the basis of availability and easy accessibility to the public. Students first carry out an

92 awareness campaign in the local village about the cell and the services they offer. In addition to releasing information through local media, the student groups visit every house and extend personal invitations. The cells, which are operated by a team of students, are open to the general public without limitation once a week, preferably on weekends. Any person having any sort of law related problem can go to the legal aid cells; the students either provide legal advice or, when required, take positive action such as meeting the other party, filing an application before the concerned government officers, or securing free legal services for the client under the Legal Services Authorities Act. In addition to this, every legal aid cell carries on a sustained campaign for creating legal awareness by conducting village-level programs such as seminars, symposia, and talks by lawyers, police officers, presiding officers, and members of district consumer forums. The legal aid cell members also function in coordination with other NGOs and participate in any activity meant to advance the welfare of the local population. The legal aid cells work not only with individual members of the community but also with the local administration. Thus, every legal aid cell member is required to attend the local Gram Sabha. With the association of the Sarpanch (elected head of the Panchayat) and other Panch members, students are required to ensure attendance of the villagers at the Gram Sabhas. They also take notes of the proceedings of the Gram Sabha, which are kept in their journals and also supplied to the Sarpanch in order to ensure that whatever promises that may have been made are fulfilled.

Mobile legal aid cells: The mobile legal aid cells do not have a permanent setup but rather go to different places to educate the people on various legal and social issues. Groups of students regularly and systematically visit other colleges and schools, youth organizations, trade unions, and workers organizations to carry out awareness programs on various laws relevant to such groups. The main purpose of these cells is to bring to the attention of various groups those laws that affect them and to explain to them how they can be used to improve their lives. These awareness programs also serve to publicize the permanent legal aid cells. Paralegal services: Members of the Legal Aid Society also perform a number of paralegal aid services. These include visiting jails, registering marriages, births, and deaths, obtaining ration cards, and preparing affidavits. Students also assist the public in preparing and filing documents that are required for obtaining benefits under various welfare schemes.

Public interest litigation

93 Student involvement in Public Interest Litigation starts when they become sensitized to social justice issues in the course of regular lectures and at Legal Aid Society meetings. By this process of sensitization to the general social situation and the persistence of injustice in their own immediate society, students are able to identify various areas where they feel that the intervention of the judiciary might be required. The faculty then guides the students as to how they should further investigate or research the issue in order to be sure that there is a real situation of injustice and that a member of the public could genuinely be interested. Thereafter, the students are advised to write to competent authorities who are obliged under law to remedy the injustice. If such authorities do not provide relief, the students – with guidance from members of the profession – file a petition before the High Court together with all of the information that they had gathered concerning the problem. Public Interest Litigation operates in India under special rules that allow any member of the public to present the case. Therefore, if the litigation proceeds the students themselves argue the case before the court. Students at V. M. Salgaocar College of Law have filed successfully eleven Public Interest Litigation cases before the Mumbai High Court (Panaji Bench) on various issues ranging from the use of motorcycle helmets to violations of Coastal Regulation Zones.69 This work has enabled them to develop sensitivity to social issues and an interest.

LEGAL EDUCATION REFORM AND LAW SCHOOL-BASED LEGAL AID CLINICS IN INDIA: LAYING THE GROUNDWORK FOR SOCIAL JUSTICE-BASED CLINICAL LEGAL EDUCATION During British rule, legal education in India followed the general colonial model of producing clerks, not managers or advocates. Its primary goal was to support the existing financial interests of England, certainly not to reform the local legal profession.70 After independence, legal education was expected to bring the legal system in tune with the social, economic, and political desires of the country.71 With 500 law schools and 40,000 law students graduating every year, law schools could play a pivotal role in promoting and providing justice, particularly through the field of legal aid. As noted earlier, the contemporary legal aid movement began in independent India in the early 1960s, at about the same time as legal services programs expanded considerably in the United States. Unlike in the United States, however, the focus of the legal aid 69

See, e.g., Anjali Sarkar and others v. State of Goa & another, Writ Petition (PIL)

70

23 Interim Report of Auxiliary Committee of the Indian Statutory Commission on review of the growth of eduction in British India, 71

A. S. Anand, memorial lecture: legal education in india – past, present And future, (1998) 3 scc (jour) 1, 2.

94 movement in India has not been on individual client representation but rather on providing legal aid to indigent people at large.26 Thus, in conjunction with the 42nd Amendment to Indian Constitution – giving free legal aid constitutional status under art. 39A – Parliament passed the Legal Services Authority Act, 1987, which aims at both providing free legal aid and organizing lok adalats (people’s courts) to secure quick justice at low cost. More recently, the Central Government proposed establishing Gram Nyaalayas (informal courts) to provide justice in rural areas at a grass root level. Early on, a consensus developed within the Indian legal community that law schools should play an active role in the legal aid movement. Although some schools were receptive, early responses to this call were less than satisfactory. There is now a renewed effort to reform legal education that offers the legal academy, the bench, and the bar the opportunity to realize the shared goals of meeting service needs and education reform through social justice-based clinical legal education. A. Early Efforts to Link Legal Aid and Legal Education Reform The first major report on legal aid came in 1973 from the Expert Committee on Legal Aid of the Ministry of Law and Justice, chaired by Justice V. R. Krishna Iyer. 72 The Expert Committee was appointed in the Silver Jubilee year of Independence to make recommendations for the creation and implementation of a comprehensive program of legal aid to the weaker sections of Indian society, including persons of limited means and socially and educationally backward classes. In stressing the need for a statutory basis for legal aid, the Committee said that “legal aid is an integral part of the legal system – not a matter of charity or confined to the four walls of the court building. The Committee’s report advocated creating networks of legal aid groups in various places such as court houses, bar associations, law schools, community organizations, private and public agencies, and organs of local government.30 Recommendations ranged from establishing an autonomous national legal aid authority, to compulsory public service as a part of law school curricula, to giving priority to candidates’ social sympathies in filling judicial and police posts. The Committee’s report also stressed the need to modify the law school curriculum in order to focus on the needs of citizens and to provide actual legal aid services. The Committee recommended introducing clinical legal education in law schools with a focus on socio-economic poverty. It opined that student exposure to real legal problems would benefit the students, the legal aid scheme, and the legal system as a whole. It also observed that students’ encounters with the problems of poverty and exploitation would change their outlook when they become lawyers, and as a result they would not treat clients simply as facts but as living neighbors.33 On the benefits of involving law schools in legal aid programs, the Committee pointed out that law students would become an inexpensive and enthusiastic resource for providing meaningful legal aid to India’s vast population. It recommended using law students to provide legal aid in two stages: first, in preparing a case at the preliminary stages, including interviewing clients and drafting documents; then, by appearing in court in petty cases, including examining witnesses and

72

see expert committee report, supra note 14.

95 presenting arguments.73 Thus, the central idea of involving the law schools was not only to provide practical skills but also to secure adequate legal aid for the needy. In 1977, the Committee on National Juridicare submitted its report. The Juridicare Committee was intended to revise, update, revaluate, and supplement the report of Expert Committee, and its report concentrated more on the viability and working conditions of legal aid programs. The Juridicare Committee recognized the value of lawyers’ services in seeking remedies or asserting rights, and placed comprehensive legal aid projects as a high priority in the State’s responsibility. The main thrust of the report was the recognition that a legal services program that reflected western attitudes and ideals cannot work successfully in India because only a few of the problems of the poor are true legal problems. The Committee believed that a legal aid program should aim at radical transformation of the socio-economic structure, and concluded that the legal profession must recognize law as a potential instrument to eradicate poverty by securing equal distribution of material resources of the country. The Juridicare Committee expected law schools to play a pivotal role in providing legal aid and urged them to establish legal aid clinics. It observed that student participation in legal aid would not only be helpful in acquiring the skills necessary in the legal market place, but would also provide an opportunity for the students to develop a humanistic perspective and a social orientation. Students would realize the social role of the law, and their participation in clinical projects would reduce the burden of legal services institutions. For the first time, this report expressed the need to develop clinical law teachers, to introduce subjects such as law and poverty and law and society, and to give academic support to law school clinics. In 1981, the government of India appointed the Committee for Implementing Legal Aid Schemes. The Committee was headed by Justice P.N. Bhagwati, then Chief Justice of the Supreme Court of India. Like the earlier Juridicare Committee, the Committee for Implementing Legal Aid Schemes insisted that court- or litigation-oriented legal aid programs cannot provide social justice in India. The Committee concentrated more on the promotion of legal literacy, the organization of legal aid camps to carry legal services to the doorsteps of people, training of paralegals to support legal aid programs, establishing legal aid clinics in law schools and universities, and bringing class actions by way of public interest litigation. 74 Further, Justice Bhagwati acknowledged the significance of the educational process in its task: “Education efforts must become a significant factor contributing to the social development of the poor.” B. Legal Education’s Limited Response In spite of these high expectations, only limited efforts were made to transform legal education in India to meet the challenges of the profession. The momentum gathered by the legal aid movement was confined at most law schools to student extracurricular activity, with a few exceptions. Delhi University, for example, established a legal aid clinic in the late 1960s. Faculty participation was purely voluntary and no attempts were made to 73

Id. at 26. At the time, and still today, there was no student practice rule in India. See infra note 45 and accompanying text. 74 40th report of committee for implementing legal aid schemes (1981).

96 integrate clinics into the curriculum.75 Nonetheless, and in spite of the fact that the students were offered no credit, the legal aid clinic attracted many students.43 Banaras Hindu University was the first law school in India to introduce a clinical course, in the early 1970s. It was an optional course with academic credit, offered to a limited group of thirty students in the final LL.B. year. The course included court visits, participation in a legal aid clinic, and an internship in chambers of lawyers. It was clear, however, that the legal aid clinic, which was located at the school and supervised by a retired judge on a token honorarium, was at the center of the law school’s conception of clinical legal education. Aligarh Muslim University organized a few legal aid camps in the mid-1980s and also introduced a course on advocacy that exposed students to such topics as factual investigation, legal research and writing, and litigation strategies. But no steps were taken to incorporate clinical legal education into the curriculum and participation in the legal aid camps was voluntary. Although these efforts were encouraging at the time, no serious efforts were made by academics or members of the legal community or by the Bar Council of India, the primary body regulating legal education – to institutionalize legal aid clinics. The main reason for this failure was that law schools were neither physically nor professionally ready to undertake such a huge responsibility. In order to implement law school-based legal aid programs at the national level, the first task should have been to prepare law schools to shoulder the responsibility. Several factors that have marred law school education in India over the past several decades also help explain why law schools have failed in their mission of providing legal aid. First and foremost, most law teachers have no practical knowledge in conducting legal aid because the Advocates Act prohibits fulltime teachers from practicing law. There is also no provision for licensing law students to practice. Moreover, no efforts have been made to provide financial assistance to law schools in order to meet the expenses of providing legal aid and there are no incentives – such as reducing teaching hours – for teachers to engage in legal aid activities. Another fundamental problem comes from the fact that for some time there has been a general feeling that legal education in India is not “meaningful” or “relevant.” In its 1958 report, the Law Commission of India painted the following bleak picture of the standards of legal education: The portals of our law teaching institutions manned by part-time teachers open even wider and are accessible to any graduate of mediocre ability and indifferent merits . . . there is hardly a pretence at teaching . . . this character is followed by law examinations . . . which the students manage to pass by cramming short summaries published by enterprising publishers . . . the result, a plethora of LL.B., half-baked lawyers, who do not know even the elements of law and who are let loose upon society as drones and parasites is different parts of the country.76 The curriculum was neither helpful in shaping aspiring lawyers in their traditional role of problem solver nor in their expanded roles of arbitrator, counselor, negotiator, or 75

handbook on clinical legal education,

76

See the law commission of india, report on reform of judicial administration

97 administrator. The dominant teaching approach was lecture, with little or no attention paid to underlying principles or social intricacies that resulted in shaping the particular rule. Students had no exposure to the policy underlying the law, the function of the law, or the needs of the nation and the expectations of the people. No effort was made to understand the law in a social context. In the words of Professor Mohammad Gouse, law students “were not alive to the dynamic role of law in the development of the country.” Perhaps in response to this phenomenon, there followed a prolonged neglect of legal education during which a large number of substandard institutions and “teaching shops” grew up around the country with large numbers of students. As a result, admission to law school became disorganized and the quality of students admitted deteriorated. Although there were exceptions, most law schools failed to attract highly qualified students to the legal profession. The situation was exacerbated by meager salaries paid to law teachers; because of low salaries, the teaching profession did not attract many brilliant persons to law teaching. Further, the teaching faculty was over burdened by heavy teaching loads. Many colleges had large numbers of part-time teachers, which resulted in overloading the full-time teachers with additional administrative and committee duties. C. A New Opportunity for Reform: The Ahmadi Report and the Bar Council’s Mandatory Practical Papers This bleak experience perhaps finally taught the Indian legal community that involving law schools in providing legal aid or other assistance to society needs careful planning and, most importantly, that legal education needs a facelift to cope with society’s expectation. Thus, several important initiatives have been undertaken in India recently to refocus attention on improving legal education – most notably those by the University Grants Commission (UGC), the Bar Council of India (BCI), and the Law Commission of India.77 The UGC is the prime body in India for regulating and maintaining the standards of higher education. In 1988, the UGC appointed a Curriculum Development Committee (CDC) with Professor Upendra Baxi as chairman. The Baxi Committee tried to improve law school syllabi to make them socially relevant: “Human resource development in law is perceived by the CDC not just in terms of production of efficient professionals. While this is important, it is so only if the underlying model of professionalism is linked with struggles for social justice, the maintenance of the rule of law and of democratic development 78. According to a second Curriculum Development Committee, appointed in 2000, the first committee’s recommendations were ambitious in nature, substantive in content (some new subjects were introduced with an interdisciplinary approach, including Law and Poverty and Law and Rural Development), and had a rich vision for the future 79. There is also a standing panel at the UGC to guide and standardize legal education in India, presided over by the retired Chief Justice of the Supreme Court of India. In spite of these efforts, no significant improvement in the standards of law schools was achieved; lack of faculty 77

55 see law commission of India, 14th report (1958); expert committee report,

78

56 report of the curriculum development centre

79

57 see report of the curriculum development committee (2000).

98 expertise in the new subjects, unavailability of textbooks, and lack of flexibility in teaching and assessing in subjects like poverty and rural development made these socially relevant courses ineffective. In 1994, a Committee chaired by Justice Ahmadi dealt elaborately with law school teaching methods. The Ahmadi Committee Report recommended inclusion of the problem method, moot courts, and mock trials in law school curricula. It also suggested supplementing the lecture method with the case method, tutorials, and other modern techniques for imparting legal education. Further, it recommended that all these new methods be made mandatory. The Committee also suggested the establishment of premier law schools to improve legal education along the lines of the National Law School of India University in Bangalore. As a result, several additional national law schools were established all over India. Although these national law schools tend to improve legal education, they could not affect a significant improvement as a far larger number of students graduate from other law schools.80 In 1997, following the Ahmadi Committee’s recommendations about practical training and the filing of cases in several high courts challenging its new rule reviving a one-year training requirement under senior advocates, the BCI issued a circular directing all universities and law schools to revise their curricula and directed them to incorporate four Practical Papers.81 Until these papers were introduced in the curriculum, very little effort had been made by law schools to train students in advocacy skills. Law schools felt that training law students to work in the legal profession was not the job of the schools but of the Bar. The Bar Council’s action was viewed as a big step toward introducing clinical legal education formally into the curriculum and law schools have been required to introduce the four papers since academic year 1998-99. On their face, the papers focus mainly on practical training. Paper I addresses instruction in litigation skills, including pre-trial preparation and trial practice. Paper II takes up various drafting skills, including pleading and conveyancing. Paper III covers professional matters, such as ethics and bar-bench relations. The exception is Paper IV, which includes legal aid work and other aspects of public interest lawyering. As shown later in this article, the four papers can be read together more broadly to support social justice-based curriculum reform. So far, however, most legal educators see them as providing only limited support for including instruction in social justice lawyering in the new curriculum or for providing social justice to indigent clients. Further, the Bar Council did not assume any responsibility for implementing its new directive. The responsibility for training law students in practical matters was simply passed on to the law schools. Because Bar Council directives are mandatory, law schools made half hearted attempts to fulfill their obligations – despite having neither the expertise 80

62 the law commission of india also stressed the need to improve legal education in Other colleges which form 99 percent of the law colleges in India ,law commission Of India, 184th report 81

62 The Law Commission of India also stressed the need to improve legal education in Other colleges which form 99 percent of the law colleges in India ,LAW COMMISSION OF INDIA, 184TH REPORT

99 in skills training nor the infrastructure and financial resources needed to implement these papers. Even to the extent that some meager resources were made available, law schools failed to execute these directives because they were viewed as an additional burden on the faculty. Simply put, law faculty neither had a vision for, nor properly understood, the value of these papers. Finally, in 2002 – and after considering the Ahmadi Committee Report – the Law Commission of India took up legal education reform in its 184th Report. Noting that legal education is fundamental to the judicial system, the Commission suggested that clinical legal education should be made compulsory and opined that clinical legal education will be an excellent supplement to the legal aid system.82 D. The Practical Papers as a Framework for the Future This history of efforts at reform leads to the inescapable conclusion that a central social justice goal for legal education in India should be to establish a fair, effective, competent, and accessible legal system. At the same time, any attempt to transform the Indian legal profession must wrestle with several problems, such as delays in the justice delivery system, corruption and lack of professional responsibility, failure to adopt modern methods of grievance settlement, failure to provide legal services at affordable cost, and limited opportunities for law graduates. Legal education reform that focuses merely on lawyering skills does not advance a legal profession that is on the verge of breaking down because there is no capacity to meet the day-to-day needs of society. Moreover, many students enter law schools not by choice but by chance; as a result, very few law graduates actually enter into the profession. Thus, many legal educators feel that there is little social benefit in continuing to spend time and energy on students who will not contribute to the profession. Something more is needed if legal education is to help lead the profession toward a fair, effective, competent, and accessible legal system. The legal academy and the profession should look to clinical legal education to lead this effort, since clinical education is in a unique position in India to realize these goals. More specifically, the Practical Papers can provide the framework for uniting the shared interests of the legal academy, the bench, and the bar by creating a curriculum that can stimulate a dedicated faculty to train its students to become skillful and socially responsible lawyers. They can do so, however, only if they are supported by a solid conceptual and theoretical foundation and can be implemented in a practical and realistic way. The next Part examines the American Bar Association report that has been cited as support for the Practical Papers requirement and its applicability in the Indian context. The final Part shows how the papers can be implemented through a social justice-based clinical curriculum.

184th LAW COMMISSION REPORT

82

66 See LAW COMMISSION OF INDIA, 184TH REPORT

100 Law Commission of India 184th Report on The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956 December, 2002 Justice law commission of India M. Jagannadha Rao, Chairman The 184th Report on the “Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956”. The Commission took up the subject of ‘Legal Education’, suo motu, as the said subject is fundamental to the very foundation of the Judicial system. The Commission in the year 1999, issued a working paper proposing certain amendments to the advocates Act, 1961. The scope of the working paper was wide and it contained five chapters. Chapter I thereof was Introductory, Chapter II related to ‘Legal Education and Professional Training, Chapter III to ‘Professional Competence and Social Responsibility’, Chapter IV to ‘entry of Foreign Legal Consultants and Liberalization of Legal Practice, and Chapter V to ‘Management and Development of the Profession’. However, in the present report, the Commission has confined its recommendations to the ‘Legal Education and Professional Training’ only. The Bar Council of India (BCI), under Section 7 (1) (h) of the Advocates Act, 1961, is empowered to promote legal education and lay down ‘standards’ of such education in consultation with the Universities imparting such education. The University Grants Commission, under Section 2 (f) of the University Grants Commission Act, 1956 (UGC Act) is also having power to exercise control over the Universities and affiliated colleges for prescribing standards of education. The BCI may prescribe standards of legal education in consultation with the universities. L But in practice, it is not possible for the BCI to consult each and every University and there is no manner prescribed in the Advocates Act, 1961 for rendering effective consultation in this regard. Therefore, in this Report, the Commission has proposed that the University Grants Commission should constitute its ‘Leal Education Committee’ consisting of various specified faculty members. The Commission has recommended that the UGC Act, 1956 be amended by providing a separate provision for constituting the ‘Legal Education Committee’ of the UGC. It has also recommended that the UGC shall nominate three members out of its Legal Education Committee, for the purpose of the ‘Legal Education Committee of the BCI. It has proposed that, the Legal Education Committee of the BCI should also have one retired Judge of the Supreme Court and one retired Chief Justice or retired Judge of a High Court to be nominated by the Chief Justice of India. Accordingly, it has recommended to amend section 10 (2) of the Advocates Act, 1961. The Legal Education Committee of the BCI should consult the Legal Education Committee of the UGC. It will have to fulfill the requirements of specified consultation process. The procedure for consultation is provided in the proposed section 10AA of the Advocates Act, 1961. Further, it is also recommended to elaborate the expression ‘standards of legal education’, in the Act by amendment of section 7 (1) (h) of the Advocates Act. The Law Commission has viewed that accreditation and quality assessment of law schools in the country must be introduced by the BCI and UGC, so that healthy competition environment

101 may be generated. The Commission is also of the view that training of ‘Alternative Dispute Resolution’ system should be given to law students, lawyers and judges, in view of the recent amendments to the Code of Civil Procedure, 1908 (Sec.89) and observations of the Hon’ble Supreme Court in Salem Advocates Bar Association v Union of India83 2002 (8) SCALE 146 for following the mandatory procedure. The Commission is of the view that there is an overwhelming need to reintroduce appointment of adjunct teachers from lawyers and retired Judges on part-time basis. In view of the Commission, it is necessary to impart professional training to the law teachers apart from the existing refresh course conducted by the UGC. Accordingly, the Commission has suggested to establish at least four colleges by the UGC or by the Central Government in consultation with BCI, in the four corners of the country. The provisions relating to recognition, de-recognition and inspection of Universities and law colleges are suggested for suitable amendments, in order to do away the conflicts in exercise of powers of various bodies. It is thus recommended that in the event of difference in the inspection report of the Bar Council and other bodies, a further inspection has to be done by a Task Force, as done under the All India Council of Technical Education Regulations. The Commission has recommended that a law graduate shall get training from an Advocates having 10 years experience in the Bar, and should also qualify Bar examination, before allowing him to be enrolled as an Advocate, as suggested by the Hon’ble Supreme Court in V. Sudeer v. Bar Council of India,84. In order to give shape to its recommendations, a draft Bill is also annexed with the Report to suggest the amendments in the Legislative form. Chapter I Introductory The Law Commission of India took up the subject of legal education suo motu, as the said subject was seen as fundamental to the very foundation of the judicial system. The Commission prepared a Working Paper in 1999 proposing amendments to the Advocates Act, 1961 (Act 25 of 1961). The paper contained five chapters, Chapter I was Introductory, Chapter II related to ‘Legal Education and Professional Training’, Chapter III to ‘Professional Competence and Social Responsibility’, Chapter IV to ‘Entry of Foreign Legal Consultants and Liberalization of Legal Practice’ and Chapter V to ‘Management and Development of the Profession’. We are, however, confining the present report to ‘legal education’ only. Several responses and representations were received by the Law Commission from the Bar Council of India, Bar Councils of various States, Bar Associations and members of the Bar, some of them accepting the suggestions, while some others opposed the suggestions. We shall initially refer to some of the important suggestions/representations. Response of the Bar Council of India:

83 84

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102 The Bar Council of India in its letter dated 3.8.2000, made elaborate suggestions. It accepted some of the proposals, rejected some others and suggested further amendments to some sections. These relate to amendments/new provisions proposed in working paper to sections 2(1)(hh), 3(2)(b), 4(1), 7(1)(ic), 9(1), 10(2), 9A, 7(1)(h), 24(1)(iiia), 24(1)(f), sec. 24(1), sec. 24A(1)(c), sec. 33A, sec. 49(1)(ai), (aj), (ak), (al), (am), (ag)(agg)(ff), (ee)(ggg), (ff), sec. 49A, 45, 24(1)(b), 36B, 3(2)(a). We are not referring in this Report to all these suggestions in as much as the scope of the present report is limited and concerns only legal education and a few other related matters. In other words, we are not proposing, in the present report, to traverse the entire ground covered by the Working Paper. Response of the UGC: The University Grant Commission, in its letter dated 16.9.1999, while welcoming the initiative taken by the Law Commission with regard to the improvement of Legal Education and quality of Legal Profession, referred to the ‘Report of the Curriculum Development Centre, 1988-1990’, headed by Prof. Upendra Baxi. Part-I of that Report runs into about 100 pages and Part II runs into about 740 pages. That Report was prepared by a team of expert academicians for the UGC during 1988-1990. The UGC, in its letter remarked that unfortunately in the Working Paper prepared by the Law Commission, no reference was made to the Report of the above Expert Committee. It further stated that the UGC Panel on legal education “was looking forward for better inter-action among UGC and BCI, among others.” The UGC then gave its views with regard to Chapters I and II of the Law Commission’s Working Paper. It referred to the proposed amendments to sec. 7(1)(h) and sec. 10(2)(b). Seeking greater representation for the law teachers in the Legal Education Committee of the Bar Council of India it suggested that in the said Committee, it would not be necessary to have as members, the Secretary UGC or the Secretary, Ministry of Law as was the case at present and that the Director of National Law School, Bangalore need not also be a member as proposed. It was stated that the UGC was constitutionally empowered to deal with ‘Standards of Legal Education’.

CHAPTER II Respective Roles of The Bar Council of India And UGC – A Constitutional and Statutory Perspective: At the outset, the Commission proposes to examine the existing Constitutional and Statutory scheme concerning legal education.

103 The UGC Act & Entry 66 of List I: The University Grants Commission Act, 1956 was an Act passed by Parliament with respect to the subject matter of Entry 66 of List I of the Constitution of India, viz., “Entry 66, List I: Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” The Statement of Objects and Reasons appended to the original Bill which preceded the UGC Act, states that the word “standards” in Entry 66 of List I means standards of ‘teaching and examinations in Universities’. It says that the “Commission will also have the power to recommend to any University, the measures necessary for the reform and improvement of University education and to advise the University concerned upon the action to be taken for the purpose of implementing such recommendations. The Commission will act as an expert body to advise the Central Government on problems connected with the co-ordination of facilities and maintenance of standards in Universities. The Commission, in consultation with the University concerned, will also have the power to cause an inspection or inquiry to be made of any University….and to advise on any matter which has been the subject of an inquiry or inspection.” The Preamble to the UGC Act states that the Act is intended “to make provision for the co-ordination and determination of standards in Universities.” In view of section 2(f) of the UGC Act, the UGC has control over the Universities as well as affiliated colleges. In Premchand Jain vs. R.K. Chhabra85 the Supreme Court referred to Entry 66, List I as being the basis of the UGC Act of 1956. Later, in Osmania University Teachers Association vs. State of AP 86the Supreme Court observed: “The University Grants Commission has, therefore, greater role to play in shaping the academic life of the country. It shall not falter or fail in its duty to maintain a high standard in the Universities.” It was pointed out that the UGC could take all steps necessary to maintain standards, including fixing qualifications, written tests etc. and the UGC could withhold grants to the Universities if its directives were not implemented. In University of Delhi vs. Raj Singh87: the Supreme Court held that qualifications for the teaching staff could also be prescribed by Regulations of the UGC and the said Regulations would override any other legislation, even if made by Parliament, such as the Delhi University Act, 1922. The Court observed, while dealing with the UGC Act, as follows: “These are very wide ranging powers. Such powers, in our view, would comprehend the power to require those who possess the educational qualifications required for holding the post of lecturer in Universities and colleges to appear for a written test…” “These (powers) include the power to recommend to a University the measures necessary for the improvement of University education and to advise in respect of the action to be taken for the purpose of implementing such recommendations (clause (d)). The UGC is also invested with the power to perform such other functions as may be prescribed or as 85

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1994 Suppl (3) SCC 516

104 may be deemed necessary by it for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of such functions (clause (j)). These two clauses are also wide enough to empower the UGC to frame the said Regulations.” Thus, regulations made by the UGC could override any other statute made by Parliament. The Advocates Act, 1961 thus deals with the conditions which a person has to satisfy before he can be permitted to practice in the Supreme Court or the High Court, but the Statement of Objects and Reasons or the Preamble of the Advocates Act, 1961 does not expressly refer to ‘standards of legal education’ as do the Preamble and Statement of Objects and Reasons of the UGC Act, 1956 or the Medical Council Act, 1956. It is only section 7(1)(h) of the Advocates Act which refers to this aspect. In the view of the Commission, so far as law courses in Universities which offer certain law degrees or diplomas (and where such students are notified that those degrees or diplomas will not entitle them to practice are concerned) which do not enable a person to practice, the Bar Council of India cannot impose mandatory conditions. The UGC has the prerogative in such cases. However, in the laying down of standards by the Universities even in regard to such courses, though the prerogative is with the UGC and the Universities, they would benefit much by consulting the Bar Council of India. In other words, in regard to courses in law which do not lead to a professional career, the UGC and the Universities could, at their option, consult the Bar Council of India, though it is not mandatory. Width of Entries in one List of Schedule VII of the Constitution not to be limited by Entries in other List or even same List: Whenever there are provisions in the Constitution referring to separation of legislative powers between a federal and state legislatures, it is necessary to examine the width of the subject upon which the Federal or State legislature, as the case may be, is primarily entitled to legislate. This exercise is performed by examining the pith and substance of the legislation which is made with reference to those legislative entries. Certain well-settled principles of interpretation apply. Firstly, each entry in each list has to be given its widest scope, without any limitation. Incidental encroachment into the field of legislation of another legislature is permissible to a limited extent, i.e. if it is not in direct conflict with the latter’s express provisions. For example, where a federal legislature legislates on one of the subjects within its field, it may incidentally encroach into the field of a State legislation and vice-versa, so long as it does not directly conflict with express provisions of the other statute. As long as the pith and substance of the legislation is attributable to a subject within the field of that legislature, as allocated by the Constitution, such a limited incidental encroachment into the field of another legislature, is permissible and is not liable to be struck down as ultra-vires. However, conflict, in the present context, does not arise between legislations made under Entries pertaining to the Federal legislature and the State legislature. Here the issue arises

105 between two legislations made by the same legislature, i.e. UGC Act and Advocates Act, both made by Parliament. In the case of the UGC Act, 1956 and Advocates Act, 1961, we are concerned with two legislations in List I itself though they are made under different entries. If the UGC Act, 1956 is expressly meant to deal with standards of education, can the Advocates Act, 1961, which is meant to deal with the ‘right to practice’ be deemed as a law which is in pith and substance, one also relating to ‘standards of education’? The point here is that, as stated above, both laws are made under different entries in List I. In that event, what is the principle of interpretation that is applicable? It was stated in India Cement vs. State of TN,88 that the constitutional principle mentioned in the preceding paragraph as between laws made by a Federal legislature and a State legislature is equally applicable in the case of legislation made under different entries in the same List by the same legislature. In the above case, Sabyasachi Mukherji, J (as he then was) observed “In interpreting an entry, it would not be reasonable to import any limitation by comparing or contrasting that entry with any other one in the same list.” The same principle as in India Cement was reiterated by Sabyasachi Mukherji, J (as he then was) in Synthetics & Chemicals Ltd. vs. State of UP 89 In other words, provisions of the UGC Act under Entry 66 of List I dealing with standards of education and the provisions of the Advocates Act must be given as wide a scope as possible. The UGC Act was passed under Entry 66, List I and deals with standards of education while the Advocates Act owes its existence to Entries 77, 78 of List I. That Entry no doubt, does not refer to ‘standards of legal education’ but deals with a subsequent stage, ‘the right to practice’. Harmonization between powers of BCI and UGC: It must be noted that the Bar Council of India depends on the Universities for imparting legal education which is necessary for the profession. The Universities prepare students for professional practice except where the law course is one for those who cannot practice. This raises a question for application of the principle of harmonious construction. Section 7(1)(h) of the Advocates Act, 1961 does enable the Bar Council of India to lay down ‘standards of legal education’. Section 7(1)(h) cannot be treated as in conflict with the UGC Act, 1956. The reason is that under section 7(1)(h) the BCI has to consult the Universities. The UGC can lay down ‘standards of education’ and the Bar Council of India can lay down the conditions for eligibility of a law graduate to enter the legal profession.

88

1990(1) SCC 12

89

1990(1) SCC 109 at 151

106 If a student who joins a law university desires to enter the legal profession but is taught law in a manner not acceptable to the Bar Council of India, the law schools will not be serving the career class of students and, in fact, will find few takers. Therefore, as a practical proposition, the law schools will have to conform to the conditions set by the Bar Council of India, if they have to supply prospective lawyers to the Bar. At the same time, the Universities and UGC are concerned equally with standards of legal education, whether for practitioners or otherwise. The Universities are answerable to the UGC in the matter of standards of legal education and so are the affiliated colleges. In other words, the subject of legal education comes within the purview of two entities, the UGC and the Bar Council of India. Precisely to ensure harmony, the Advocates Act in sec. 7(1)(h) has required consultation by the Bar Council of India with the Universities. The two are partners with a common goal. Yet another aspect is that the Universities and affiliated colleges employ thousands of law teachers at various levels. A large number of these teachers are highly qualified. A good number among them have Doctorates or Masters degrees from India and several of them have Doctorates or degrees from reputed universities in the world like, Cambridge, Oxford, Yale, Harvard and Stanford and so on. Several of these teachers have been teaching law for ten to twenty years or even more. It is incumbent, therefore, that these law teachers, who have ultimately to perform the function of teaching are consulted or allowed to express their difficulties or problems particularly when a new curriculum is introduced. The obligations of consultation are reciprocal and not one way. There is ample need for the Universities to consult the Bar Council of India and likewise for the Bar Council of India to consult the Universities. A fine balance has to be established with the mechanism of sec. 7(1)(h) of the Advocates Act which requires consultation with the Universities. Consultation means ‘effective’ consultation. In this connection, we may refer to the article “Revamping professional legal education: Some observations on the LL.B curriculum revised by the Bar Council of India” by Prof. Gurdeep Singh published in the volume “Legal Education in India in 21st Century: Problems and perspectives” (Jan 1999), published after the All India seminar at Delhi attended by Faculty from all over India. The volume is published by the Delhi University Law Faculty. The article refers to a large number of problems arising out of the recent curriculum introduced by the Bar Council of India which problems could have found easy solution if there was effective prior consultation with the Faculty Here, one other aspect may be pointed out. The Bar Council of India, by letter LE (Cir.No.4/1997) dated 21.10.1997 had, after referring to the titles of the LL.B. courses and the title of the papers to be offered, left the details to be evolved by the Universities. The Bar Council of India stated in that letter: “The identification of the content and number of each paper in the prescribed courses is left to the discretion of the University Academic bodies. The CDC Report (1988) Commissioned by the UGC may be followed by Universities while preparing the syllabi for the various courses.” (quoted from pp. 1, 2 of the CDC Report of 2001 of UGC) 2.17 The CDC Report 2001 of UGC, in fact, admits of considerable harmony in the process of consultation between the Bar Council of India and the Faculty but in our view, the same has to be strengthened. After referring to sec. 7 (1) (h) of the Advocates Act, 1961 and sec. 12 of the UGC Act, 1956, the said Report of 2001states

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“In the field of legal education, there was, thus, a dilemma of dual responsibility of the BCI and UGC. The CDC in the eighties were aware of this difficulty and suggested certain ways and means to solve the problems arising from the dual responsibility and called for more interaction, in the form of information sharing and consultation, between UGC and BCI. It is significant that BCI had an open mind when they set out in 1995 for a reform. They consulted the universities and the UGC law panel while formulating the reforms for LL.B. courses.” The Report, however, says: “Although this cannot be described as closer interaction, the gaps in common endeavors between BCI and UGC for reforms in legal education were being filled. It is significant that besides asking to follow CDC Report in the preparation of Syllabi, BCI resolved to accept some of the courses recommended by CDC. Environmental law, human rights law and consumer protection laws were made compulsory subjects. Law and poverty, comparative law, insurance law, law and medicine, women and the law and intellectual property were made optional papers. Administrative law and labour law were promoted to the status of compulsory courses.” The CDC Report of 2001 of UGC thus accepts that there has been some consultation but it says that ‘closer interaction’ is necessary between the BCI and UGC. It is in the light of the above that the Law Commission proposes to recommend, a procedure which will ensure ‘closer interaction’ between the BCI and UGC. While the obligations on both bodies are reciprocal in nature, however, one cannot ignore practical difficulties in the present form of sec. 7(1)(h) which requires the Bar Council of India to consult all the Universities. The Universities in which law is taught either directly or through affiliated colleges are large in number and make it practically impossible for the Bar Council of India to consult every one of the Universities whenever it takes important decisions relating to legal education. If it has to consult each University, it will be a time consuming process. The Bar Council of India appears to have bona fide felt that requirement of sec. 7(1)(h) is satisfied if some of the professors working in the Universities are invited to speak at certain seminars dealing with revision of curriculum. In our view, such a procedure has to be modified in as much as a professor or two invited to a conference, may not be representative of the views of all the Universities. In as much as the Bar Council of India cannot be required to consult all Universities, the provisions of sec. 7(1)(h) have to be amended by prescribing that the Bar Council of India must consult a body which effectively represents all the Universities. In order to solve the practical problem and make consultation easy and meaningful, the Commission has felt it necessary to formulate a simple and effective procedure for consultation. The consultation procedure between the Bar Council of India and the Universities must be simple and effective. In this process, the Bar Council of India and the Universities have to cooperate and, as already stated, work as equal partners having a common goal. We shall deal with this aspect in Chapter IV after first going into the question of membership of the Legal Education Committee in Chapter III. Certain aspects to be discussed in Chapter IV depend on what we recommend in Chapter III.

108 Accordingly it recommend as follows:- “Inasmuch as the Bar Council of India cannot be required to consult all universities, as stated in section 7(1)(h), the provisions of section 7(1) (h) have to be amended by prescribing that the Bar Council of India must consult a body which effectively represents all universities and that such a body should be constituted by the University Grants Commission. This requires amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956.”

Chapter III Membership of the Legal Education Committee of the Bar Council of India We shall initially deal with the issue of the membership of the Legal Education Committee of the Bar Council of India. The Law Commission’s 14th Report (1958) presided over by Shri M.C. Setalvad referred to the recommendation of the All India Bar Committee, 1953 that the ‘Legal Education Committee’ should consist of 12 members of whom 2 should be Judges, 5 should be elected by the All India Bar Council and five other persons should be selected and co-opted from the Universities by the above seven members. But, the Advocates Act, 1961, in clause (b) of subsection (2) of sec. 10 prescribed a membership of 10 members in the said Committee of whom 5 were to be elected members of the Bar Council of India and five were to be co-opted by the Bar Council of India from among non-members. It did not specify who were to be the other five non-members to be co-opted. The Justice Ahmadi Committee Report 1994, for the first time suggested that the 10 member Committee should consist of five Bar Councillors, plus two from the higher judiciary, one from among academicians, and the remaining two, should be the Secretary, UGC and the Secretary, Ministry of Law, Government of India. The suggestion of the Justice Ahmadi Committee has been implemented by the Bar Council of India soon after 1995 and a retired Supreme Court Judge and a retired High Court Judge are now in the Committee as per the above recommendations. There is only one from the academic community. In other words, out of ten, five are Bar Councillors, two are Judges, one is an academician, and the Secretary UGC and Secretary, Law are the other members. However, in the Working Paper prepared by the Law Commission (1999) the membership of a 15-member Committee was suggested as follows: five from the Bar Council, five from the faculty, and out of the remaining five, two to be from the Judiciary, and the Secretary, UGC and Secretary, Law are to be the third and fourth members and the fifth should be the Director of the National Law School, Bangalore.

109 3.4 The Bar Council of India has strongly opposed the above proposal made in the Working Paper in as much as the existing ratio of Bar Councillors which is 5/10 becomes 5/15. On the other hand, the Faculty at its deliberations at the All India Law Teachers Congress (Jan. 22-25, 1999) was of the view that in a Committee of ten, there should be more representation to the academic community and that the Ahmadi Committee was wrong in permitting only one from the Faculty to be on the Committee. Of course, a further suggestion was made that the Faculty alone must be concerned with legal education and that the lawyers and Judges have no place there. The criticism that the Ahmadi Committee recommended only one member of the Faculty to be on the Legal Education Committee is, in our view, justified. But, the other view, that the Bar Council and Judges should have nothing to do with legal education cannot be accepted in as much as, under Entries 77 and 78 of List I, the subject matter of legislation is ‘practice in courts’ and the Advocates Act, 1961 is a law made for that purpose. As pointed out in Chapter II, though generally, in the matter of ‘standards of legal education’ the UGC or the Universities may have primacy, in the matter of standards of legal education for those students who will practice in Courts, the primacy is of the Bar and the Judiciary. This was the view of the Setalved Committee also in the 14th Report. But at the same time, that does not mean that the law teachers have no place in the fixing of the standards. In our view, there must be discussion by the Bar Council of India with the Universities or with, as proposed, a body of legal faculty, representative of the law teaching community in the entire country, to be nominated by the UGC. We are of the view that the proposal made in this Chapter and the next Chapter , will balance the roles of the Bar, Judiciary and the law teachers and once the number of teachers in the Legal Education Committee is increased, there will be no room for any grievance.

Chapter IV The UGC Committee on Legal Education and the Consultation Process Section 7(1) (h) to be amended so that consultation by BCI will be, not with all Universities (which is impracticable) but with a new body to be nominated by UGC, representing the Universities: The UGC Committee on Legal Education to be constituted: As stated earlier, section 7(1)(h) of the Advocates Act, 1961 requires the Bar Council of India to consult the “Universities” for the purpose of laying down standards of legal education. We have already pointed out that there are practical difficulties if the BCI has to consult each and every university which confers degrees in law. It is one of the statutory functions of the UGC to deal with co-ordination and the laying down standards of

110 education in the universities and therefore, for the purpose of sec. 7(1)(h), the UGC can constitute a Legal Education Committee which is representative of all Universities and affiliated law schools. Consultation under sec. 7(1)(h) must then be with an academic body of law teachers to be nominated by the UGC. In our view, that Committee should consist of ten eminent law teachers of whom six shall be law teachers in office, two law teachers who have retired and two vice-chancellors or Directors of statutory law universities. The said body can be called the UGC Committee on Legal Education. It must also be ensured that the UGC nominates three law teachers who are members of the UGC Legal Education Committee and who are in office as teachers, to be members of the Legal Education Committee of the Bar Council of India, so that they can co-ordinate the decisions taken by the UGC Committee on Legal Education with those taken by the Legal Education Committee of the Bar Council of India. One of these three must be a Director/Vice Chancellor of statutory Law Universities. Consultation Process: (i) First stage of consultation should be with the State Bar Councils under sec. 7(1)(h), as at present: It will be seen that sec. 7(1)(h) presently requires consultation between the Bar Council of India and Universities and the State Bar Councils. It is not proposed to make any change in regard to consultation with the State Bar Councils. But, the consultation with Universities, i.e. with the proposed UGC Committee of academicians under sec. 7(1)(h) must be effective consultation. Obviously, it will be convenient if the Legal Education Committee of the Bar Council of India first consults the State Bar Councils and the decisions arrived at as a result of the said decisions are sent to the UGC Committee on Legal Education for its views. The proposed amendment would be that the Bar Council of India will, through its Legal Education Committee, consult the State Bar Councils and after receiving their responses, will finalize the proposals which have to be sent to the Legal Education Committee of the UGC, as stated in this chapter: (ii) Second stage of consultation thereafter should be with the body nominated by UGC, as now proposed: The consultation by the Bar Council of India with the UGC Committee on Legal Education will be after the consultation with the State Bar Councils and will have to be as follows. As stated above, the Legal Education Committee of the Bar Council of India will consult the State Bar Councils and will have to provisionally finalize its proposals. This will be for the purpose of the further consultation with the UGC Committee on Legal Education. The said proposals will then have to be sent by the Legal Education Committee of the Bar Council of India to the UGC Committee on Legal Education. That Committee will have the benefit of the views of the three academicians who are also in the Bar Council of India’s Legal Education Committee and once the views of the UGC Committee are finalized, the decision of the UGC Committee will have to come back to the Bar Council of India’s Legal Education Committee for discussion. Once again the three academician members can

111 explain the views of the UGC Legal Education Committee to the Bar Council of India’s Legal Education Committee. The two members from the Judiciary will also consider these views. Once the Bar Council Legal Education Committee considers these views, a collective decision has to be taken in the said Committee by all the ten members, including the Chairman (the retired Judge of the Supreme Court). In the new scenario, it is expected that the BCI Legal Education Committee and the UGC Legal Education Committee will give due and proper consideration to each other’s views and arrive at a consensus. Of course, in the absence of a consensus, the majority view of the Legal Education Committee of the Bar Council will have to prevail. It is expected that at such a meeting, all the members and, in particular, the retired/sitting Judge of the High Court, will invariably be present to help in the emergence of a satisfactory solution to any problem arising out of differences between the BCI Committee and the UGC Committee. In certain situations, the Faculty may like to initiate and place some suggestions before the Bar Council of India. There must, therefore, be a separate procedure whereby the UGC Committee on Legal Education may initiate and send its suggestions to the Legal Education Committee of the Bar Council of India. In that event, the latter Committee shall first consult the State Bar Councils and then after arriving at a provisional view, refer the same to the Legal Education Committee of the UGC. The said Committee will give its final views and forward the same to the Legal Education Committee of the Bar Council of India. The second aspect which the Bar Council has to take care of is that whenever a new curriculum is introduced – sufficient advance notice must be given to the law schools so that they can take steps to conform to the prescriptions. Let us assume that new subjects in intellectual property or cyber law or environmental law are proposed to be introduced. It must be noted that standards of legal education relate to various aspects of legal education. They are known to the Bar as well as to the Faculty. Hence, they must be arrived after a thorough study and after an effective interaction between the Bar Council and the Faculty. Bar Councillors and Judges and faculty members of the Legal Education Committee must make an in-depth study of the subject of ‘Legal Education’ which is a specialized branch by itself.. The standards of legal education concern the entry to the college, the curriculum, as also the method of examination at the time of entering the college and leaving it or entering the profession and the qualification of teachers etc. There must be full coordination between the Bar Council and the Faculty on these matters. It is hoped that, if the Bar Council of India and the faculty implement the proposals made in Chapters III and IV, the difficulties faced by the Bar Council of India in regard to consultation with all Universities and the grievance of the faculty in regard to insufficient consultation, will get resolved. The proposals are, therefore, for the constitution of the Legal Education Committee of the University Grants Commission of ten members, of whom six would be academicians in office of the level of Professors, Deans or Principals or of equal rank and two law teachers

112 of similar ranks who have retired and two should be Directors/Vice Chancellors of statutory Law Universities. The further proposal is in regard to consultation between the Legal Education Committee of the Bar Council of India and the Legal Education Committee of the UGC and its acceptance and implementation by the Bar Council of India. Provision is also to be made for the Legal Education Committee of the UGC to initiate and make suggestions to the Legal Education Committee of the Bar Council of India, and the latter shall then follow the procedure of consulting the States Bar Councils and the UGC Legal Education Committee. It is also proposed that the Legal Education Committee of the Bar Council of India shall, while passing resolution concerning standards of legal education, have regard to the following factors: (a) The time required for the law schools to provide the necessary infrastructure; (b) availability of books or faculty members who are qualified to teach any new subject that may be introduced in the curriculum; (c) availability of funds with the law schools to implement the resolution or the time required to gather the necessary funds. Therefore, it is recommend that new section in the form of section 10AA be inserted in the Advocates Act, 1961 for providing consultation procedure as follows:“Consultation procedure by the Legal Education Committee of the Bar Council of India: 10AA. The procedure for consultation under clause (h) of sub-section (1) of section 7, shall be as follows, namely:(a) in respect of proposals relating to standards of professional legal education, the Bar Council Legal Education Committee, shall first consult the State Bar Councils and arrive at provisional proposals and the same shall be communicated to the University Grants Commission Legal Education Committee for its views on such proposals. (b) after receiving the views of the University Grants Commission Legal Education Committee, the Bar Council Legal Education Committee , shall consider the same and arrive at its final decision. (c) the final decision of the Bar Council Legal Education Committee, arrived at under clause (b) shall be enforced by the Bar Council of India and shall be binding on all universities and all law colleges affiliated to universities, in so far as they relate to

113 standards of legal education necessary for students to get enrolled at the Bar for practicing the profession of law; (d) the University Grants Commission Legal Education Committee may send any proposal in regard to the matters referred to in clause (a) for consideration of the Bar Council Legal Education Committee; (e) if any proposal is received under clause (d) from the University Grants Commission Legal Education Committee, the procedure specified in clauses (a) to (c) shall be followed by the Bar Council Legal Education Committee. (f) the standards of legal education as may be finalized under this section shall be the minimum standards necessary for students to get enrolled at the Bar for practicing the profession of law in Courts.” It is further recommend that the University Grants Commission Act, 1956 be amended and a separate provision in the form of section 5A for constitution of the ‘Legal Education Committee’ of the University Grants Commission, as follows:“Legal Education Committee of the University Grants Commission 5A (1). The Commission shall constitute a Legal Education Committee of the University Grants Commission consisting of ten members of whom- (a) six shall be law teachers of the rank of Professor, Dean or Principal holding office as such or others of equal rank; (b) two shall be retired law teachers of the rank of Professor, Dean or Principal or others of equal rank; (c) two shall be Vice-Chancellors or Directors of law universities established by statute. (2) The University Grants Commission Legal Education Committee shall represent all the universities and law colleges for purpose of clause (h) of sub-section (1) of section 7 of the Advocates Act, 1961. (3) The University Grants Commission shall nominate(a) two law teachers in office from among the six members referred to in clause (a) of subsection(1); (b) one member from among the category referred to in clause (c) of subsection (1), to be members of the Bar Council Legal Education Committee for the purpose of sub-clause (iv) of clause (b) of sub-section (2) of section 10 of the Advocates Act, 1961 (Act 25 of 1961).”

Chapter V Standards of Legal Education, Legal Skills and Values (Mac Crate Report) and New Globalization Challenges and Accreditation

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The provisions of sec. 7(1)(h) of the Advocates Act, 1961 enable the Bar Council of India to lay down the standards of legal education required for students who seek enrolment to the Bar. It is therefore necessary to refer to some aspects of the standards, particularly those relating to legal skills. In chapter IV we have dealt with ‘minimum standards’ to be laid down by the Bar Council of India. Now, we shall refer to what is meant by ‘standards of legal education’. Several efforts have been made from time to time, to improve standards of legal education. The 14th Report of the Law Commission headed by Sri M.C. Setalvad is one of the best and elaborate reports on Legal education. It is something which every person must read. The UGC Curriculum Reports 1988-90 and 2001 must also be read. They were prepared by eminent professors, including Prof. Upendra Baxi. One must also read the recent Ahmadi Committee Report which contains extracts of letters of the Chairman, Bar Council of India and Chairman, University Grants Commission, and views of Chief Justices of various High Courts in the matter of Legal education. Various suggestions were given regarding the courses of study, attendance, entrance examination, final examination, the lecture method, case method, problem method, constitution of Committees and membership, and need for apprenticeship and Bar examination. In this Chapter, we are referring briefly to some of these aspects and we propose to lay emphasis on Legal Skills and Values as adumbrated in the Mac Crate Report of USA. Standards of Legal Education & Legal Skills: In the Bar Council of India rules, Part IV (as amended upto 30.11.1998) dealing with the subject of ‘Standards of Legal Education and Recognition of Degrees in Law for admission as advocates’, Section A refers to 5-year law course after 10+2 or 11+1, Section B relates to 3-year law course after graduation, and Section C refers to Rules regarding inspection of law colleges by State Bar Councils. Again Schedule 1 contains a list of the Directives issued under Rule 21 in Section A or under Rule 14 in Section B. Sch. II is the questionnaire to be answered by any college which is seeking affiliation. Schedule III deals with Proforma for Inspection of law colleges and Schedule IV with the Form of Annual Return to be submitted by the law colleges. We also have the Training Rules, 1995 made under sec. 24(3)(d) of the Advocates Act, 1961 which have been struck down by the Supreme court as being ultra vires of the Act or rather beyond the rule-making power. Recently, new proforma formats have been prescribed for application seeking permission to open law colleges and in respect of inspections, compliance, responses in respect to standards of legal education, recognition of degrees etc. The Ahmadi Committee Report dealt elaborately with the methods of teaching. It referred to the “case method” introduced by Prof. Langdell of Harvard Universtiy and to the “problem method” pioneered by Prof. Carl Llewellyn and Judge Jerome Frank and the Notre Dame Law School.

115 Professional skills & professional values – the Mac Crate Report: On legal skills, we will be referring to the Mac Crate Report of USA (1992) which is the Report of the “Task Force on Law Schools and the Profession: Narrowing the Gap”, prepared by the American Bar Association. There are 10 chapters in the Mac Crate Report in Parts I to III. Chapter 5 of the Report refers to the ‘Statement of Fundamental Lawyers Skills and Professional Values”’, Chapter 7 refers to ‘Professional Development during Law School’, Chapter 8 to ‘Transition from Law Student to Practitioner, Chapter 9 to ‘Professional Development after Law School’, Chapter 10 refers to the Need for a National Institute to Enhance the process of Professional Development.90 Under chapter V(A) thereof, the legal skills referred are (1) legal research, (2) factual investigation, (3) communication, (4) counselling, (5) negotiation, (6) skills required to employ or to advise a client about the options of litigation and alternative dispute resolution mechanisms, (7) the skill to identify the administrative skills necessary to organize and manage legal work effectively and (8) finally, the skill of analyzing the skills involved in recognizing and resolving ethical dilemmas. Professional values, according to the Mac Crate Report, include ‘training in professional responsibilities’ and involve more than ‘just the specifics of the Code of Professional Responsibility and the Model Rules of Professional Conduct’; they should encompass ‘the values of the profession’, including the ‘obligations and accountability of a professional dealing with the lives and affairs of clients’. Chapter V(b) of the Report refers to ‘Fundamental lawyers skills’ as follows: (1) diagnosing a problem, generating alternative solutions and strategies, developing a plan of action, implementing the plan and keeping the planning process open to new information and new ideas. (2) identifying and formulating legal issues, formulating relevant legal theory, elaborating legal theory, evaluating legal theory and criticizing and synthesizing legal argumentation. (3) knowledge of the nature of Legal Rules and Institutions, knowledge of and ability to use the most fundamental tools of legal research, understanding of the process of devising and implementing a coherent and effective research design. 90

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(4) determining the need for factual investigation, planning a factual investigation, implementing the investigative strategy, memorializing and organizing information in an accessible form, deciding whether to conclude the process of fact gathering, evaluating the information that has been gathered, assessing the perspective of the recipient of the communication; using effective methods of communication. (5) establishing a counselling relationship that respects the nature and bounds of a lawyer’s role; gathering information relevant to the decision to be made; analyzing the decision to be made; counseling the client about the decision to be made, ascertaining and implementing the client’s decision. (6) preparing for negotiation, conducting a negotiating session, counseling the client about the terms obtained from the other side in the negotiation and implementing the client’s decision. (7) advise the clients about the options of litigation and alternative dispute resolution, and have a fundamental knowledge of (a) litigation at the trial-court level (b) litigation at the appellate level (c) advocacy in disputes between and Executive Forms (d) proceedings in other Dispute Resolution Forums (8) skills of efficient management such as formulating goals and principles, developing systems and procedures to ensure that time, effort and resources are allocated efficiently; develop system to ensure work is completed at the appropriate time; develop system or procedures to work effectively with other people, develop system and procedures for efficiently administering the law office. (9) keep familiar with nature and sources of ethical standards, the means by which ethical standards are enforced, the processes for recognizing and resolving ethical dilemmas. Legal education must seek to serve distinct interdisciplinary knowledge domains – law and society, law, science and technology; law, economics, commerce and management. To that extent, certain new law subjects should be introduced in the five year course of LLB in the first and second years. Teaching must focus on building up the student, skills of analysis, language, drafting and argument. Teachers must bear in mind that while most of the students may choose a professional career as a lawyer, some others may choose a judicial career or career as a legal consultant or law officer in government or an academic career. Alternative Dispute Resolution systems – mediation, conciliation, arbitration etc. must be and remain as a compulsory subject. The curriculum should not make the mandatory element too large but subjects which are in need in the bulk of the courts in the mofussil, in the civil and criminal law, must be

117 mandatory. While subjects mostly in use in the courts at the grass-root level must be mandatory and some new subjects can also be made mandatory, care must be taken to give more choice to the students in the optional subjects. Syllabus could be structured not merely on the basis of mandatory subjects but also on basis of “credits” as done in the National Law School. Accreditation and quality assessment of law schools must be introduced by the UGC & BCI fastly to build up a sense of competition between the different law schools. Legal education institutions are not today adequately subject to a rigorous system of quality assessment and accreditation processes. The various well-known parameters for evaluating the performance of a law school must be laid down by the UGC and the BCI and annual rating must be given to each law school and published in the internet to enable prospective students to compete for admission to the best law schools. If necessary, this task may be performed by the UGC and BCI by taking the help of professional agencies who are well versed in accreditation processes of law schools. There must also be transparency about the quality of the assessment. Therefore, it recommend substitution of the existing clause (h) of subsection (1) of section 7 which merely refers to “promotion of legal education and laying standards in consultation with the Universities and State Bar Councils” as follows: (a) for clause (h), the following clauses shall be substituted, namely:- “(h) to promote legal education and lay down standards of such education in accordance with the recommendations of the Bar Council Legal Education Committee arrived at in the manner specified in section 10AA including, in the matter of(i) the prescription of standards relating to curriculum, admission of students, appointment and qualification of teachers; (ii) the appointment of adjunct teachers from the Bar and from among the retired judges; (iii) the prescription of conditions of service of the law teachers; (iv) the prescription of student-teacher ratio; (v) the laying down of guidelines for adopting different teaching methods; (vi) specifying the conditions as to the location of law colleges, infrastructure, library and management; (vii) promoting excellence in legal education for the purposes of the accreditation scheme if any, introduced by the University Grants Commission; (viii) promoting alternative dispute resolution as a subject of academic study in the law schools for students; (ix) promoting continuing education on alternative dispute resolution for legal practitioners;”

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RELEVANCE OF CLINICAL LEGAL EDUCATION IN THE LEGAL EDUCATION IN INDIA There is no shortage of clinical experiences that are currently available to law students in India. Predominant among them are the Lok Adalats and legal aid camps; legal literacy projects; public interest litigation; direct representation of clients before selected courts; tribunal and agencies; legislative drafting and community organizing. In India, there is a very wide gap between the people, specially the poor and the justice delivery system. The need of the lawyer to be sensitive to the causes and cases of the poor is all the more needed here, than anywhere else in the world. The law students need to require training for the profession; they also need to help the socially and economically deprived citizens of India. As the legal aid lawyers do remain overburdened with the 'increasing pressures of the demand of the profession on their time, there is no alternative available with the poor except to suffer in silence. Young, energetic and dedicated students can work with their teachers to provide free and quality professional service to the poor and socially deprived, while still at the school, with the active co-operation of the State and •the Bar. Besides giving an active participation in the variety of legal aspects of the legal process wider faculty guidance and supervision, it would also enable them to assess themselves not only how a legal system works but also how it can be reformed. The legal system is an extremely important profession, enabling people to have recourses to justice peacefully and with the framework of law, yet there is no denying the fact that this, profession it is also a controversial -profession and is in need of reform: The harsh realities of the unevenness of the availability of the legal system to the people depending on their socio economic status can give an opportunity to the law students to bridge this unevenness with his hard work and determination by giving quality service to the disadvantage in the society. In India scenario social sensitization of lawyers extremely desirable. Motivated by the individualistic and materialistic approach good and reputed lawyers failed to take up the cases and the causes of the poor. Others function to the total lack of function for the vary clients that they represent. For a majority of lawyers it is the number rather than the interest of the client which matters. Infact the success of a lawyer is measure by the amount of fees he charges and the number of clients that he has. Being extremely busy and also expensive, he is clearly out of reach of the majority of Indians who are poor. The only alternative felt with them is to approach the legal aid lawyers who are also overburdened. Thus the need is to have socially sensitized lawyers who can take up the cases of the poor. But the question is how to sensitize them? Sensitization is ineffective when imparted in theory. It comes from an interaction with people, with an appraisal of their problem, an aspect of field education on which both the bar and apprenticeship programme is totally silent.

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CURRENT EFFORTS IN INDIA TO REFORM LEGAL EDUCATION AND THE LEGAL PROFESSION: ADAPTING THE MACCRATE REPORT TO MEET INDIA’S NEEDS As noted above, a number of committees, commissions, and seminars have called for reforming both the legal profession and legal education since India gained independence from the British. The legal system introduced by the British was created essentially to serve British commercial interests; very little concern was shown for social justice, such as protecting the rights of children, women, workers, and other disadvantaged members of society. In the words of Justice Krishna Iyer: “British legal culture fertilized the Indian legal elite and sterilized the spirit of the people.91 By contrast, the Indian Constitution aims to secure social, economic and political justice, but the Indian legal profession, the legislative process, and the administration of justice remain restrained by feudalistic and pro-British colonial laws.71 Therefore, many legal luminaries in India felt the need to move away from this model and to reform the legal profession. A common theme was that reforms in legal education should aim at providing competent and socially sensitive lawyers. The Bar Council of India’s directive on Practical Papers in 1997 and the 2002 report of the Law Commission of India (together with the Ahmadi Report that preceded it), discussed earlier in Part II, are particularly important because they addressed specifically various changes needed to update teaching methods and to reform the law school curriculum – all with a view to improving the legal profession. Although the Law Commission mentioned several studies about improving legal education in its 2002 report, one report was given special prominence: Legal Education and Professional Development – An Educational Continuum, a 1992 American Bar Association (ABA) task force report on professional skills and values popularly know as the Mac Crate Report.92 The Law Commission felt that the members of the Legal Education Committee of the Bar Council of India and the University Grants Commission needed to study the Mac Crate Report closely. This nod to the Mac Crate Report was doubly significant, since the four papers mandated by the Bar Council in 1997 (also mentioned by the Law Commission in its report) focus on skills similar to those identified as fundamental in the Mac Crate Report. Further, the National Law School of India University in Bangalore, established by the Bar Council in 1987 as a model for legal education reform, prepared a new curriculum in 2001 that included skills training based in part on the Mac Crate Report, with modifications suited for Indian conditions.93 Although prominent, the references to the Mac Crate Report in the Law Commission’s report did not discuss the report’s conceptual basis or its central content, a statement of 91

Justice v. R. Krishna Iyer, Inaugural Address at the second state lawyers’ conference, Andra Pradesh at Rajahmundry, 2 scc 1, 3 (jour) (1976). 92

93

73 see law commission of india, 184th report

75 the national law school’s new curriculum also includes clinical courses that cover the subjects included in the practical papers mandated by the bar council.

120 fundamental skills and values. or did they include any sort of critical analysis that would support its relevance in the Indian context. Although well received generally, the report has had its critics in the United States – particularly among those who would believe that a wider set of skills and values are needed to serve today’s legal needs. Similar questions arise if the report is to serve as a model for legal education reform in India. Both of these topics – the Mac Crate report as a model for legal education reform and its relevance to India – are taken up below. A. The Mac Crate Report as a Conceptual Basis for Legal Education Reform The Mac Crate task force was formed by the ABA in 1989, following the publication of a number of studies stressing the need to improve lawyer competence. With those goals in mind, the Mac Crate Report put forward certain guidelines for satisfying the demand for producing skilled and competent lawyers – and called for law schools and the legal profession to play a greater role in improving the competence of incoming lawyers and the overall professional fitness of the practicing bar. The Mac Crate Report thus redefined the scope of the modern debate on what and how law schools should teach, including which skills and values legal education should emphasize. The skills and values identified in the Mac Crate Report constitute a noble vision of professionalism toward which all lawyers should aspire. Perhaps most fundamentally, the Ma Crate Report affirms that acquiring lawyering skills and professional values aimed at providing competent lawyers is essential to the task of preparing lawyers to represent clients. Specifically, the Mac Crate Report set forth a Statement of Fundamental Lawyering Skills and Professional Values that recognizes a “compendium of skills and values” fundamental to the practice of law. The Statement first identifies ten skills that are required of competent lawyers. These skills are categorized into five groups: problem solving and legal analysis, which are the basic abstract skills for legal practice; legal research, factual investigation, communication, counseling and negotiation, which are specific skills required to carry out a legal practice; knowledge about trial and appellate litigation and about alternative dispute resolution (ADR), in order to be able to provide ADR or to advise clients about the various options available to resolve disputes under ADR; the ability to organize and manage legal work effectively; and the ability to identify and resolve ethical dilemmas.81 The Report then identified four fundamental values of the profession: provision of competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development. The Mac Crate task force viewed the Statement of Skills and Values as “a work in progress“ and recognized that several of the suggestions put forward would require designing new modes of teaching and the development of new teaching materials. The Mac Crate Report was thus intended to serve as a stimulus – a starting point – for professionoriented legal education reform. The task force hoped that these skills and values would be revised from time to time to fulfill its intended purpose of preparing new lawyers for practice. Finally, the Mac Crate Report emphasized that “the statement is not, and should not be taken to be, a standard for a law school curriculum. The Statement of Skills and Values is concerned with the limited goal of ensuring practice at a minimum level of

121 competency.” Therefore, the skills and values mentioned in the Mac Crate Report are not comprehensive, but rather express the specific goal of narrowing the professional gap between law schools and the practice of law. The Mac Crate Report also made an effort to draft a new agreement between law schools and the legal profession. The foundation of this new agreement is that “legal educators and practicing lawyers should stop viewing themselves as separated by a ‘gap’ and recognize that they are engaged in a common enterprise – the education and professional development of the members of a great profession.” The Mac Crate Report also introduced the concept of an “educational Continuum” and called for an unending exchange within the profession about the skills and values that a legal practitioner should acquire and about the kind of education and training that prospective lawyers should receive at different stages of their careers.94The Report thus points out rightly that the Bar, law school teaching faculty, and the judiciary ought to share the responsibility for providing skills- and value-oriented legal education to new lawyers entering into the profession. Criticisms of Mac Crate’s report As noted above, although the Mac Crate Report was well received generally in the United States its Statement of Skills and Value was not free from criticism. The more substantial criticisms include missing the humane element of lawyering, overemphasizing the traditional lawyer role of problem solver, overemphasizing skill with relatively little attention paid to social justice, failing to recognize the importance of subject matter to the study of law, a lack of attention to community based advocacy, and ignoring the importance of the alternative role of lawyers and changes in the relationship between lawyer and client due to the economics of law practice. Carrie Menkel-Meadow has observed, for example, that the Mac Crate Report’s declaration on lawyering skills visualizes the lawyer largely as a litigator, a “means-ends” thinker who can accomplish a client’s goals. She notes that in the 21st century, lawyers will have to solve problems synthetically as well as analytically and argues that the legal profession also needs a basic understanding of socio-economic concepts and statistics to analyze the empirical effects of lawmaking and enforcing the law. This observation applies equally to India today; mere analytical skills of problem solving will not be sufficient to solve broader socio-legal problems. Members of the legal profession need to play the role of educator, planner, and counselor. Therefore, lawyers must be trained in skills that provide for a broader understanding of various facets of legal problems. Fundamental lawyering skills are important to provide social justice; however, any set of skills confined only to traditional methods of problem solving would be manifestly insufficient. Typically, both law students and new practitioners are rewarded almost exclusively on the basis of skills. Although extremely negative values may be grounds for disqualification, an individual’s values – excellent or mediocre – play virtually no role in academic or professional incentives. Despite the Mac Crate Report’s stated aim to improve both skills and values, it focuses mainly on skills. Moreover, it indicates indirectly that professional 94

Mac crate report

122 values are subordinate to skills by listing the four fundamental values after the ten fundamental skills. To achieve the Mac Crate Report’s aim, goals should be identified first and then the skills needed to achieve those goals. If “the values are the goals and the values are not identified, it is pointless to talk first about skills. Professional values and skills should be promoted as the two wheels of social justice. If they are to complement each other, then skills must be developed according to identified values. B. Mac Crate as a Model for Reform in India: The Need for a Statement of Fundamental Values and Skills for Indian Lawyers Not only have these critiques of the Mac Crate report not been noted by Indian commentators, the report has not been questioned as an appropriate model for legal education reform in India. Perhaps this is because many reforms in Indian legal education over the past decades have been influenced by developments in the United States, as India has undergone a shift since the late 1960s and early 1970s from the British model of legal education to the US model.96 This United States focus has been the case particularly with respect to clinical legal education, since – as noted earlier in Part I of this article – many of the goals for (and the challenges faced by) clinical education in India and the United States are, to a large extent, similar. It may indeed be helpful for Indian legal education reformers to present a set of fundamental professional skills and values along the lines of those set out in the Mac Crate Report as part of the effort to implement both the Bar Council’s mandated Practical Papers and the Law Commission’s renewed push for clinical legal education. However, in that case a more critical look at the Mac Crate Report and its relevance to Indian legal education is needed. First of all, and consistent with much of the criticism of the Mac- Crate Report in the United States, before reforming legal education in India the values sought to be supported by such reforms and the skills needed to achieve them must be identified. The skills and values enunciated in the Mac Crate Report should be analyzed carefully as part of this process; however, they should be followed only to the extent that they are in keeping with the local needs in India. Members of the Indian legal profession have an obligation to assess the strengths and weaknesses of the Report before using it as a guide to reform. At the same time, the report’s Statement of Skills and Value may be useful in identifying the goals of legal education in India and in other countries as well. The important thing is to create appropriate goals for the local legal profession; only then can one decide which values and skills should be taught – and how they should be taught – in order to improve the profession. India’s status as a developing country makes promoting social welfare a major aim of the law. The constitutional goals of equality and justice will be accomplished only by enacting a number of “socially oriented legislations.”98 As noted earlier, this challenge cannot be met by focusing legal education on lawyering skills confined to traditional problem solving. India needs not only technically skilled lawyers, but also lawyers who are socially sensitive and have socially relevant lawyering skills. Legal education must, therefore, focus not only on what lawyers actually do but on what lawyers ought to do. In this regard, the first task is to identify the values that legal education must foment. Indian society needs socially sensitive and community oriented lawyers and a legal education system with a social justice agenda. Justice, fairness, and morality can be taught in the classroom;

123 however, this requires a curriculum that exposes students not only to law and legal process, but also to the many factors that influence clients and their lawyers. One option would be to appoint an Indian counterpart to the Mac Crate task force that would identify the professional values and skills required for the legal profession in India. Indeed, this idea was endorsed in principle during the inaugural meeting of the South Asia Clinical Teachers Association in December, 2006. Properly constructed, a set of values and skills along the Mac Crate model, but adapted for modern India’s needs, can serve to support the current movement toward legal education reform. They can also provide an underlying substantive basis for institutionalizing a social justice-based clinical curriculum that is missing from the Bar Council’s Practical Papers mandate and the Law Commission’s general call for meaningful and effective educational reform. And they can help set India’s longstanding quest for socially relevant legal education finally on the right track. It may be helpful in the meantime to suggest a set of fundamental professional values and skills to guide legal education reform in India. Four professional values, conceptualized specifically for the Indian context, and a five professional skills intended to supplement skills set out in the Mac Crate Report are proposed below.

1. Fundamental Professional Values Value 1: Provision of fair and effective resolution of disputes. Article 14 of the Indian Constitution is a positive affirmation of equal access to the justice system in India. Thus, providing free legal aid to an indigent person is not only a statutory obligation, but a constitutional obligation on the part of the State. “State obligation” does not mean that only the State has an obligation to provide free legal aid; this professional and legal obligation extends to every member of the legal profession.95 It is equally important to provide a fair, effective, quick, and inexpensive system for dispensing justice. Easy access to justice is meaningless unless there is a guarantee to fair and effective justice. Lawyers should also take responsibility for quick disposal of disputes, especially given the chronically high volume of cases pending in Indian courts.106 Thus, the provision of effective resolution of disputes involves two interrelated fundamental values for the profession: providing fair, effective, and accessible legal system; and providing quick and inexpensive resolution of disputes. Value 2: Striving for social justice. India is a country with many of its resources concentrated in the hands of few, and with a large number of poor people. As noted earlier, the immediate concern of the nation after independence was to provide social welfare and to bring social order. The main objective 95

Bar Council of India Training Rules, 1995, Section VI Rule 46 imposes a duty on every lawyer to render legal aid

124 behind the Directive Principles of State Policy in the Indian Constitution, setting out fundamental principles for state governance, is to establish a welfare state and to provide socio-economic justice. Free India expected the law to play a vital role in bringing social order. In many countries, social welfare cannot be implemented through constitutional provisions. The Supreme Court of India has, by contrast, a rich history of judicially enforcing socioeconomic rights by liberal interpretation of fundamental rights.96 The Court has extended to scope of fundamental rights to include certain directive principles, particularly in the area of social welfare. Thus, in a number of decisions it recognized directive principles – such as equal pay for equal work, protection of children from exploitation, free and compulsory education for children, prevention of sexual harassment, free legal aid to the poor, medical assistance to workers, the right to health, the right to shelter, the right to livelihood, the right to live with human dignity, and the right to minimum wage – as fundamental rights. All these judgments impose a positive constitutional obligation on the state to implement social welfare programs to guarantee these judicially recognized rights. It is now a well established principle that free legal aid is a state’s duty and not government charity. Although social justice is the ultimate goal of law in India, very few people in India understand that social welfare is a legal entitlement of the poor. The value of striving for social justice is particularly important in this context. It focuses on making the legal process an instrument of social development and on developing the legal profession as a vehicle for social justice. Socially relevant legal education can meet the constitutional goal of providing socio-economic and political justice by promoting a legal profession that can meet the needs of the common person through the rule of law and a progressive social order. Value 3: Promotion of alternative lawyer roles. Lawyers need to play a vital role in dispensing justice. They cannot be mere spectators of the judicial process; they must be an integral part the process of providing justice. The present Indian system of adversarial justice is largely influenced by the British model. The complexities and technicalities imposed by the British model need to be simplified. In its place, modern India needs a system that provides non-judicial forums and various types of informal proceedings to satisfy natural justice, involving little cost and speedy disposal. Alternative dispute resolution (ADR) is considered to be an outstanding development in 20th century law. In fact, various forms of ADR, such as negotiation, mediation, arbitration, and conciliation, were the traditional methods of dispute resolution in ancient India 97. Recognizing this need, ADR was given statutory status in India in the form of lok adalats. Although not without controversy, lok adalats have proved to be cost effective, simple, and easy – and, more importantly, they provide speedy justice. Socio-economic conditions in 96

97

See, e.g., Olga Tellis v. Bombay Municipal Corporation A.I.R. 1986 S.C. 180;

During the Vedic period, disputes were tried and settled generally by the elders of the family; however, if this failed the disputants approached a Sabha, or village council, consisting of elders of the community or village heads. WILLIAM, ALTERNATIVE DISPUTE RESOLUTION (2002);

125 India necessitate more ADR programs. India’s ancient culture and philosophy of simple living require lawyers to shift their traditional role of problem solving to the roles of negotiator, mediator, counselor and public policy maker. The legal profession must change its purpose from providing client-centered legal services to securing the social justice mission of providing fair justice. The legal profession should recognize that lawyers must be loyal to justice rather than just to their clients. Apart from promoting ADR, it is also necessary for lawyers to make citizens aware of their legal rights and duties. Legal literacy is a condition precedent to making the law relevant and meaningful. With the national literacy rate at 68.4 percent, 98 disseminating basic legal knowledge is as important as any other function of the legal profession. All members of the profession have a moral and professional responsibility to impart legal literacy by way of simplifying legal rules that one may encounter in day-to-day life. This may include translating laws into vernacular languages, as laws are written customarily in English. The agenda of promoting alternative lawyer roles thus includes shifting the traditional role of the lawyer from problem solver to dispensing justice, promoting loyalty towards justice rather than only to the client, and disseminating basic legal knowledge to the common person. Value 4: Protecting judicial independence and accountability. India is ranked as low as 88th out of 159 countries in the Corruption Perceptions Index.99 By contrast, the Indian judiciary, particularly in the higher courts, has emerged in the recent past as a powerful institution that enjoys the faith and esteem of the people due to a low level of corruption among its members. When the two other organs of the modern state are held in low esteem, the judiciary has a special duty to protect the common person’s interests and to join in fighting against corruption. Therefore, it is very important to protect the judiciary’s independence from the influence of the legislature and the executive. To protect the judiciary’s independence, it is imperative to have a transparent legal profession. In addition to transparency, all members of the bar, bench, and law faculties must be accountable to their profession and to society in general. Thus, this value stresses the need to promote and preserve judicial independence and to develop accountability among lawyers, judges, and law teachers. 2. Fundamental Professional Skills To complete a modified Mac Crate conception of fundamental skills and values for the Indian legal profession, certain skills must be targeted to assure that lawyers can implement the previously identified values. Almost all of the skills set out in the Mac Crate Report are required for securing these India-focused values; however, special emphasis should be given to certain skills enumerated in the Report for securing the first three values. The fourth value – provision of judicial independence and accountability – does not implicate skills in the same way as the others.

98

Census of India 2001, T 00-006, available at http://www.censusindia.net

99

Transparency International’s 2005 Corruption Perceptions Index

126 For securing the first value, effective resolution of disputes, the following skills enumerated in the Mac Crate Report are helpful: legal research, communication, litigation and alternative dispute resolution procedures, and organization and management of legal work . For securing the second value, striving for social justice, the following skills are important: generating alternative solutions and strategies, elaborating legal theory, evaluating legal theory, and identifying and evaluating other possible legal theories. For securing the third value, alternative role of lawyer, the following skills may play a significant role: methods of effectively tailoring the nature, form, or content of the written or oral communication, counseling, negotiation, and knowledge of the fundamentals of proceedings in other dispute-resolution forums. Although these skills are helpful in promoting the proposed values for Indian lawyers, other skills are required in order to secure them in a meaningful way. New, additional fundamental skills required for Indian lawyers may include the following:

Skill 1: Innovative/alternative problem-solving techniques. In order to provide fair, effective and accessible justice, the mere achievement of minimum competency in analyzing and applying legal rules and doctrines is not sufficient. Lawyers need to develop the skills to invent innovative techniques to provide alternatives to the adversarial process. They need to be creative in developing new methods of problem solving to provide a quick, fair, and cost effective justice-dispensation process. Skill 2: Skills to invent new options beyond the established norms. To secure the constitutional goal of bringing about a just social order, lawyers need to think about options beyond traditional norms. They need to be able to handle group actions and community- or social oriented litigation. They must also have strong interpretative skills to convince judges to recognize the need for considering a client’s socioeconomic conditions in analyzing and disposing of legal problems. Skill 3: Mass communication skills. Lawyers need the skill to communicate not only with judges and clients, but also with the society as a whole. Skills in mass communication are necessary to carry out legal literacy projects, which are extremely important in view of India’s high rate of illiteracy in general and legal illiteracy in particular. Communication skills are needed also to explain public policy issues and to convince the public to influence public policy by putting pressure on the government. Skill 4: Skills to analyze the socio-economic background of legal problems.

127 In a developing country like India, most legal problems are related to social relations and poverty. To deal with these problems, skills in understanding the broader social and economical issues behind the problem are essential. Skill 5: Skills in research with a sense of responsibility to serve the society. Sound research skills are essential to virtually all aspects of lawyering. However, a mechanical application of research findings is not sufficient to achieve the values identified earlier as fundamental for Indian lawyers. Lawyers conducting research need to have a commitment to serve society. Thus, the goal is to develop research skills that will serve society rather than simply applying legal rules mechanically to problems. These various skills are not a comprehensive listing of what lawyers need to be able to do, nor do they and the fundamental values discussed earlier address all of the problems facing the Indian legal profession. They provide only a possible outline of the values and skills that could be identified and developed further by an appropriate task force or working group. Moreover, the skills that may be needed to support certain values might vary from place to place and from time to time, depending on local conditions and community needs. The burden for providing lawyers these skills lies heavily on law schools, particularly in India. All legal training in India takes place in law schools and once students graduate from law school they can straightaway enter the legal profession. There is no requirement for apprenticeships or to pass a bar exam, as exists in most other countries Thus, in highlighting the need for quality legal education, Justice A. S. Anand said that “the quality of education has a direct impact on the prestige of the legal profession. We must therefore identify the areas of default and initiate corrective action to repair the damage.”100

CLINICAL LEGAL EDUCATION AND CLINICAL LAW TEACHERS

Every clinical law professor requires students to engage in some type of planning process101.Unlike a classroom teacher whose contact with students consists of written materials, class discussion or lecture, and perhaps e-mail exchanges, the live-client clinical faculty member and the supervisor may interact with students on a daily basis by teaching and advising. 100

Dr. Justice a. S. Anand, inaugural address at the second annual meeting of the state legal services authority, held at Hyderabad (1999), 101 “Evaluating Clinical Law Teaching-Suggestions for Law Professors Who Have Never Used the Clinical Teaching Method “ By Kimberly E. O'Leary

128 Law professors who use clinical methodologies are sometimes subject to review by other law professors who do not. These reviews occur because many clinical teachers are on unified tenure tracks or clinical tenure tracks that include non-clinicians on the review team. Additionally, clinical teaching methodologies are being incorporated into a variety of courses other than the traditional in-house clinic. Written explanations of clinical teaching are abundant. Clinical law teaching conferences occur often to orally transmit knowledge about clinical teaching ideas, techniques and problems. n4 This article is a short, simple overview of clinical teaching methodologies to assist reviewers not versed in such methodologies. Clinical classrooms often look and sound very different from traditional law classrooms. Perhaps more importantly, most clinical teaching takes place outside of a formal classroom setting. A promotion or tenure review committee cannot use the same language, concepts or benchmarks when assessing clinical teaching as it uses in assessing many doctrinal courses. While the overall goal of assisting a law student in becoming a better legal thinker, planner and practitioner is the same, the specific teaching goals of each type of course can be quite different. What follows is a brief framework for evaluating clinical law teaching. While many of the underlying concepts apply equally to live-client clinics, extern experiences and simulation courses, there are important differences. It will provide an evaluative framework for clinical courses generally, specifying where live-client clinics, external clinics and simulation-based courses might differ when appropriate, but will not go into great detail about the differences because to do so would make brevity unattainable. Because clinical courses vary greatly, the format of this paper will focus on the types of choices available to clinical law professors in teaching a clinical course. Also, it will examine in some detail the assessment of student supervision. There are more than 1300 full-time law professors who currently teach using a clinical methodology. It should also be noted that oftentimes, professors tend to assume that those under review should have the same teaching goals as the reviewers. This assumption should not go unexamined. Experienced professors should take the time to question and understand the value of new approaches. Unfortunately, there are few good models for evaluating law teaching generally. n8 Many law professors take the attitude that they "know good teaching when they see it." This approach is inherently conservative and limiting to the growth of legal education generally. Such an approach is particularly inappropriate for clinical teaching because clinical teaching often looks quite different from the traditional classroom. Moreover, new law professors, especially women or minority professors who teach in clinical settings, might adopt techniques that are unfamiliar even to more experienced clinicians. n10 Reviewers must be sensitive to racial, ethnic and gender issues embedded in all law teaching, including clinical law teaching. Law professors should not evaluate any teaching without first understanding the particular goals and objectives of the professor under review. It is impossible to cover all important aspects of any field in one course, and clinical teaching is no different in that respect. Each of us makes choices about which areas to emphasize; these choices derive from

129 professorial judgment about which aspects of the field are most important. Every law professor should think about which concepts, skills or ideas will be the most useful building blocks for students to use as the foundation of their professional lives. The processes discussed in this article should be applied after and only after carefully understanding the particular teacher's goals and course objectives. In the clinical context, some evaluating professors might have an outdated view of what lawyers do based upon prior practice experience For a course of this kind to be developed satisfactorily and to run effectively, the teachers conducting such courses need training administrative and peer support. For effective evolution of these courses four aspects need to be taken care of. 1- training of teachers in newer skills; 2- evolution of criteria for determining the teacher-student ratio and workload; 3- evolution of supervision techniques and evaluation criteria; and 4- representation by students and professional responsibility. Until now teaching in classrooms has been limited to teaching law to the LL.B. students. The full time teachers are' assigned substantive law subjects ,and theoretical papers and the part-time teachers who are, ful1 time lawyers are seen as better equipped to teach the procedural law Courses. Neither set of law teachers has been 'taught' these skills. Teachers learn some skills like legal research and writing, communication, argumentation by doing it in course of their research and teaching, similarly the lawyers also learn their skills on the job. Both need to be first convinced that such skills can be 'taught' and then learn how to teach skills in addition to teaching law. Large scale skills training of teachers therefore are a precondition. Such training courses will need to focus not only on imparting the skills but also on how to teach those skills, impart some additional skills in developing simulation exercises such as how to write role plays, or developing negotiation / mediation problems. These courses will require coordination and cooperation of all parties involved in the operation, namely, the law school administration, teachers, students, clients, placement agency and the state bodies before whom the matter may be pending. The minimum resources that a clinical course will need include space ensuring privacy for meeting clients, communication tools like phone, stationary, travel expenses for students and other contingencies.

The training of the law teachers will be required to incorporate the following aspects: a) Changing focus from teaching only the black letter law to interpersonal and communication skills;

130 (b) Methods for teaching those skills; (c) criteria for evaluation of those skills; (d) Generating materials for teaching those skills; (e) Administrative skills; and (f) Fund raising. It is important to recognize that student-teacher ratio is crucial to the success of student centered active learning. One teacher may give a lecture to a large number of students but it is humanly impossible for one teacher to supervise umpteen numbers of. Subgroups of students carrying on simulation exercise in a class. Implementation of the UGC norm of one teacher to twelve students in professional courses is the absolute necessity for these courses. In addition to class teaching, the teachers teaching. a clinical coursers in collaboration with a field agency will also be required to hold individual and group meetings to reflect on field work, seek and secure appropriate placements, training and briefing the field agency, monitoring the continued suitability of placement, monitoring and coordinating the students' attendance and work at the agency. Moving out of students from classroom to field also requires reorientation of classroom teaching schedule. The classroom teaching in other courses will need to be limited to fewer days in the week leaving some days completely free for the students to pursue these practical courses. It will also need decisions about supervision of students in the field. It will involve clearly indicating to the placement agency what is expected from it in terms of supervision as well as skills learning, identifying objectives of supervision and telling the students their responsibilities and the manner of supervision and evaluation criteria. Running a live-client c1inic13 with litigation work needs issue of professional responsibility for the case clearly determined. It rests with the teacher-supervisor. As the full-time teachers are not permitted to practice, a part-time teacher willing to accept the professional responsibility will be required to be necessarily attached with the course. 102 Amendments in the law will also be needed to allow second and third year students to present clients' cases under supervision of the teacher. An academic course in contrast with a community based project has a clearer course structure, defined hours of work, prescribed readings, definite workload and precise assessment criteria while a community based project evolves with the work undertaken and the progress made. Hence it is important to identify the issues that need to be addressed before a legal aid clinic or other communitybased project may be converted into an academic course. 102

Ved kumari

131

Training centres for Law teachers Yet another important aspect is about the need to revamp the teaching system by establishing a number of special institutions to enable law teachers to update their knowledge. While we agree that there are several good teachers in law schools who are highly qualified and very competent, there is always need to keep abreast of latest needs of the practitioners, and of the latest Judgments of our Courts and our statutes as well as Judgments of the House of Lords, American and Canadian Supreme Courts, 103 Judgments of the Australian High Court and New Zealand Courts and of the European Human Rights Court at Strausborg. It is also necessary to keep in touch with new principles of law emanating abroad and to several developments in important subjects like trademark, copyright, patents, the Trips Agreement, Cyber law, Environmental law, Human Rights and other new subjects. Further, when it is necessary to teach several subjects dealing with procedural laws at the college level, there is need that law teachers must get acquainted with several practical aspects of the procedural laws. Training for the teachers is, therefore, necessary. Apart from the existing refresher courses conducted by the University Grants Commission, it is necessary to impart professional training to the law teachers. To start with, at least four colleges must be started by the Central Government in consultation with the Bar Council of India and UGC, in the four corners of India. The law teachers must have exposure to centres by experts in various branches of law and for this purpose guest lecturers from other States or even from other countries have to be invited. It will be for the UGC and the Government of India to make the necessary funds available for the above purpose. Law Commission recommended addition of clauses (ie) and (if) after proposed clause (id) in section 7 (1) as follows: “(ie) to take such measures to facilitate the establishment of institutions by the Central Government for continuing legal education for law teachers; (if) to take measures for raising the standards of teaching in law in consultation with the Central Government, the State Governments and the University Grants Commission.” It also recommended that the ‘problem method’ be introduced in the examination system to an extent of above 75% in each paper, apart from 25% for theory. The students should 103

Chapter IX of law commission Report on Examination System, Problem Method and Training Centres for Law Teachers

132 obtain a separate minimum number of marks for the theory and a separate minimum in the problem part of the examination. This will enable the student to apply their mind seriously to every subject. This will also eliminate malpractices. Attendance to classes is also bound to improve.

THE PROCESS OF EVALUATING A CLINICAL LAW PROFESSOR There are some special challenges involved in the mechanics of evaluating a clinical professor. When evaluating law professor work, peers generally rely upon a review of written course materials and observations of the professor teaching students in a classroom. It should be obvious that assessing the work of a clinical teacher is a bit more complex. In addition to the challenges already alluded to, such as determining which part of the overall clinical design was created by the teacher under review or how to determine what sorts of choices the clinical teacher is making relative to supervising students, there are other problems not encountered in the review of other law teaching. These problems relate to the different role of students and faculty in a clinical course, as well as the confidential and private nature of much of that work. This section will describe some of those considerations and provide some practical suggestions for conducting such reviews. A. Temporal considerations A clinical course is a time-based experience which changes dramatically during the semester. The reviewer must be aware of the particular course component being observed. Generally, one can expect to see the clinical professor giving more help to the students early in the semester to help the student get his or her bearings, feel more confident and jump more quickly to targeted skill sets. By the middle of the semester, one should see the student generating most of the ideas. At the end of the semester, the student should be making most of the major judgment calls, and the student should be engaging in reflective activity. The first weeks of a clinical course are often more heavily instructional; clinic faculty orient the students to this intensive and often self-directed style of learning. In some courses, before specific learning about the particular skills or values can take place, students must understand the substantive and procedural context of the relevant law. Many clinical law professors create an opportunity early in the semester to help the students understand this context. Often clinical professors will bring in guest speakers or provide overview lectures of specific substance or procedure to facilitate this process, while others prefer a "sink-or-swim" immersion approach followed by discussion. Students in a liveclient clinic might engage in intensive simulations, written drafting assignments or "field trips" to the local courts or agencies to speed up the natural learning curve. Generally, such opportunities will not provide students with opportunities to discuss or learn the nuance of the law; rather, they are designed to quickly instill in each student a common parcel of knowledge that the student will use as a platform for the rest of the semester.

133 Similarly, the students must become familiar quickly with the structure of the course, because it involves much coordination and planning. In a live-client clinic, you should expect to see an intensive overview of office procedures, forms used, supervision methods and the physical layout of the office. In some courses, students actually engage in designing office procedures and choosing practice methods. n48 In an extern course, there should be an early explanation of the format of experience -- how the placement will be made, how and when the student and professor will meet, the nature of the student's responsibilities. In a simulation course, the student needs to know how the simulations will work: how, when and where to pick up materials, when evaluations or assignments will be due, etc. The middle of the semester is characterized by student-generated activity and collaborative coaching by the professor. The student, having been given information and materials, is typically working out self-created action plans on behalf of a client or as a simulation. At this stage, the one-on-one supervision sessions between student and faculty are critical. Here, the faculty member ensures that individual work is taking place (outside of the session), and the faculty is available to hear the student's ideas, to ask questions, and provide guidance. The final stage of the course should be characterized by additional reflective activity and a transition into a more collegial relationship. Faculty should be helping students understand how to engage in self-critique. This overall rhythm of the course is replicated on a smaller scale throughout the course as well. Each time the student gets a new problem to be solved, the pattern of intensive help, student-generated planning and reflection is repeated. However, as the semester goes on, the need for intensive help lessens and the capability for students to generate and critique their own ideas increases.

B. Methods Used by Clinical Law Professors Clinical professors use a variety of techniques for accomplishing their goals. Typically, clinicians will meld together some or all of the following: -class sessions -one-on-one supervision sessions -small group meetings or small work groups -partnerships between students working on experiences -reading assignments -written assignments -simulations -journals -reflection papers -exercises and demonstrations Many clinical professors find the heart of the course is in teaching students how to engage in the three-part process for their professional lives (developing action plans, executing those plans, reflecting on those plans). Therefore, many clinicians will require students to

134 prepare a set of explicit goals at various times throughout the semester and to reflect upon how well they are achieving their goals. It is truly a goal of a clinical course to engage the student in the process of learning and understanding how the learning process takes place. n49

C. Practical Problems in Evaluating Clinical Law Teaching Faculty who do not teach in clinics fail to understand some of the extrinsic demands of the clinical teacher. The traditional separation of "teaching", "service", and "scholarship" as an evaluation device is often not a helpful construct when evaluating a clinical educator. The concept of "service" in the typical law school setting involves the faculty member's work on law school committees, perhaps a university committee or two, and perhaps some limited involvement in a community-based group or work in a professional organization such as the AALS or ABA. Untenured faculty members are counseled to limit their "service" activities to gain more time to work on scholarship and teaching. Such advice is not useful for most clinical law teachers. The clinical law professor is required to be an active member of the practicing bar. That statement bears repeating, with an emphasis on the word "required." While other law professors might choose to practice law, the clinical law professor practices law as a requirement of the position. The clinician is a member of the bar with special duties that arise because of clinical teaching. These special duties arise from the reciprocation of the clinician's need to keep up with developments in law practice specialties and the profession's need for input gleaned from the experiences of clinical law professors. While there are a number of different ways to accomplish the first goal of keeping up with developments, most of them involve frequent interactions with other lawyers, judges, community advocates, and so on. Because most clinics represent indigent clients, interaction with other practitioners - often legal services or public defender attorneys is vital. Unlike much of doctrinal law, the knowledge most clinical law professors must have includes a wide array of local practices and customs, and cannot be gleaned solely (or even primarily) by reading appellate cases. Consequently, as first-hand observers of local legal systems, clinical teachers have a lot to offer community advocates to help improve local practices. The new clinical teacher, especially one new to the locale, will have to engage in more networking than the experienced clinical teacher initially. Thus, advising the new teacher to avoid such "service" commitments is bad advice. As the clinician gets his or her bearings, he or she can begin to include students in some of the community networking, thus enriching the experiential component for the students and sometimes, although not always, reducing the individual time commitments of the clinical teacher. Therefore, if non-clinical faculty members wonder why clinical faculty engage in so much

135 "service," the answer usually is "they're doing their job." This sort of networking usually leads to involvement in local bar task forces, committees, advisory boards, boards of directors, and the like. Such involvement in turn leads to better clinical teaching, because the clinical teacher and the clinical law office develop in light of law practice developments around them. Faculty involvement also affects the attitudes of the bench and bar toward the clinical program and its students, and helps determine whether local practitioners and judges see clinicians as active members assisting in the resolution of local problems or instead see them as outsiders "using" the system for the benefit of the school. Finally, clinicians do important work that is practically oriented and this type of work fosters less attention from traditional faculty. A clinical teacher might spend two years working on a local commission and help produce tangible change in a local practice or system, but this work is not always considered scholarly. Or, a clinical teacher might write about one small aspect of a law that has a profound effect on client representation at the trial level. More attention should be paid to this sort of scholarly activity which produces tangible change in the law.

2. Practical Problems in Assessing the Clinical Teachers Overall Work Traditional methods for reviewing faculty may not work when reviewing clinical teachers. Unlike a classroom teacher whose contact with students consists of written materials, class discussion or lecture, and perhaps e-mail exchanges, the live-client clinical faculty member and the extern supervisor may interact with students on a daily basis by teaching and advising. Most of clinical teaching takes place outside the classroom. Moreover, the classroom is often used as a place to allow students to offer advice to each other, to raise issues or problems, or to perform exercises, small group workshops or case rounds. The classroom component is used to accomplish different objectives for the clinical teacher and is less likely to involve significant presentations by faculty. Thus, observation of classroom activities is a woefully inadequate way to evaluate most clinical teaching. The problem then becomes, how does a faculty evaluate clinical supervision? Even if one understands what qualities make a good clinical supervisor, there are several practical problems. Some of those problems include: a. One supervision session does not capture the whole b. Client confidentiality c. Student privacy d. Tendency to focus on the wrong things a. One Supervision Session Does Not Capture the Whole

136

a. One supervision session does not capture the whole First, it is difficult to capture the essence of clinical teaching by observing a single supervision session, a single court appearance, a single class, or a single case round. Like the stitches in a quilt, over a semester or yearlong program a pattern emerges, but if you magnify a section of the stitches the pattern is not obvious. One supervision session, one class, one performance in court is only a small piece of the whole. This is because every task builds upon some other task in the clinical setting. To understand the conversation in a supervision session, one would need to understand the underlying information in a case, know what work the student has or has not completed to date, observe written materials the student has researched or written, what previous discussions the student has had with the supervisor, and understand the universe of possible actions that might be taken. One also needs to have a sense of what the student is doing outside of supervision, class or court. Having said this, clinical professors should not be immune from review, and in the final section I will offer some suggestions for how reviews might take place.

b. Client Confidentiality In a live-client clinic course, the faculty member and student spend much time discussing clients, both in supervision and in class. Candid assessments of real people's lives--their strengths and their shortcomings--are essential in lawyering. People outside the law firm have no business hearing these sorts of discussions. It is inappropriate for a discussion of this nature to be videotaped and shared with a wide range of faculty who are not a part of the law firm. There are few ways to resolve this problem. One possibility is to strip the discussion of any facts, strategies or tactics specific to a particular client. The obvious downside to this approach is that the discussion is not representative of a real supervision session. Another strategy would be to submit tapes of supervision sessions with clients whose cases are resolved, and who have signed a waiver of confidentiality. The downsides here are that the supervision sessions may be old and not representative of current teaching, and that the waiver may not be an appropriate request of an indigent client. The best approach is to have an experienced clinical faculty member--someone who is a member of the clinical "firm"--sit in on supervision meetings with the faculty member under review. The experienced clinician is likely to have a better sense of what makes a good clinical teacher, and the client is protected. c. Student Privacy Much of student supervision involves intensely private, frank discussions about a student's strengths and weaknesses. Moreover, students in both live-client clinics and externship supervision often make personal disclosures or react strongly to clinical experiences. The relationship is such that the supervisor sometimes needs to coach the student on how to deal with unpleasant moral or values issues, the intrusion of personal crises on the student's work life and so on. These sorts of discussions often serve as an undercoat to later

137 conversations about professional work. Such candid conversations cannot take place nor should they if the supervision is being video-taped or even visited. Therefore, other faculty should know that they are not necessarily hearing a full or complete conversation. d. Tendency to Focus on the Wrong Things The bottom line is, non-clinical faculty members need to be sensitive to the difficulties of fully evaluating the entire clinical teaching process. Although not a perfect analogy, one can view the clinical teaching process much like the clinical learning process: it requires that the professor develop a plan for the course, engage in the experiential phase of daily strategy and development sessions, and later reflect upon the experience to improve it. Faculty who are not members of the clinical law firm should have wide latitude in reviewing the first and third stages of the teaching process: planning and reflection. Reviewing faculty can examine written materials, such as syllabi, handouts, office manuals and the like. They can observe classes that do not involve discussions of clients. They can observe interaction with students that do not involve discussions of clients or private student issues. They can ask the faculty to evaluate their course and discuss with the faculty member under review how they conduct the experience phase. However, when it comes to reviewing the performance phase, deference should be given to experienced clinicians who can more gently sit in on a variety of supervision sessions, clinic student interactions, and court appearances to determine the quality of the supervision taking place.

CLINICAL LEGAL EDUCATION AND THE ROLE OF LAW STUDENTS CLINICAL LEGAL EDUCATION is a term capable of many definitions. At its narrowest definition the term denotes the involvement of law student! in the representations of the actual clients as part of their legal education. 104 More broadly the term includes mere structured methods of instruction which emphasize the learning of "practical skills" in addition to substantive and, procedural rules of law, usually in ways which involve students' active participation beyond that normally followed in the lecture rooms. The narrow definition expresses the traditional system of apprenticeships in the legal aid clinic. The broader definition, includes moots, courses of trial advocacy, courses in legal drafting all of which rely on orientation of lawyer-client based education. Basic to this concept is "learning by doing" though it connotes structure, and supervision to make it something more than learning by trial and errors. Though class room method of legal education has taken prominence in majority but the clinical legal education is not a rare example. English legal education for centuries relied primarily on apprenticeship. In Japan even before a distinct legal profession developed. the legal ,functions performed by Kijiyadoor suit inns were transmitted from father 'to son through a loosely structured apprenticeship. The arts of vakils of, Moghal India were passed from 104

“clinical legal education and the role of law students”

by shri Baldyanath choudhury

138 generation to generation. Even today apprenticeship is in element of legal education in many countries. Yet through out the world there is a bent towards the classroom training. As the apprenticeship method has fallen down and the class room of legal education has becomes dominant, efforts have now been made to improve the practical clinical training. Efforts have been made in many countries to provide such training courses in the form (i) Post Graduate training course, (ii) internship programme, (iii) Student's legal aid clinic, Post Graduate courses provide training in advocacy, drafting procedure, ethics and. law office management in a class room environment with heavy emphasis on stimulation. This can be managed by the Law schools themselves with the assistance of the members of Bar and Bench. Such a course is, prominent in Canada" United' States, & Australia, Internship is a least explored area; Internship involves a supervised work in the office of the Solicitor and Attorney house. The emphasis more toward, advisory and administrative work rather than the advocacy process internship programme is attractive in, those countries where large number of law graduates is designed to enter in the government service. Numerous internship programme is functioning at American Law Schools involving student in the working of local, state and Federal agencies charged with responsibility for consumer protection environmental control and the enforcement of anti discrimination legislation. But the most popular manifestation of practical legal training is the students legal aid clinics is the direct student involvement in handling the legal problem of indigent. The role of law student as legal aid lawyer is potentially on of mutually benefit to the student, to the legal aid scheme in which the student works and to his university. This scheme is well experimented in Ceylon, Indonesia, the united state Chile and Zambia. While the primary mission of a student’s legal aid clinic is the educational, significant services can be rendered to a parent legal aid scheme or to the community at large. Law students are expected to learn practical lawyering skills in two ways, namely, classroom courses for teaching such skills and legal aid clinics. For example, in the Law Faculty in Delhi University the course on Drafting, Conveyancing, Moot Courts and Professional Ethics has teaching of skills of legal writing, argumentation and issues of professional ethics as its primary goals. The Law Faculty also has its legal aid clinic and has run its legal aid programmes in the beggars' court, juvenile court and Tihar Prison in addition to organizing legal literacy camps in rural areas on a regular basis. It has been long recognized that legal aid clinics offer a large range of professional skills to students. "A variety of skills not otherwise available to the students in the traditional legal curriculum are provided by the law school clinic. These include interviewing and counselling, the association and management of human relations, fact gathering and sifting, fact consciousness and a sense of relevancy, legal research and writing, handling crisessituations and intelligent decision-making and above -all an appreciation that law is only one method of solving problems and not always the best method."105 Mainstreaming of legal aid clinics and other similar programs by incorporating them in the LL.B. curricula is necessary to ensure teaching of the practical skills of lawyering and generating awareness and sensitivity to the issues of access to justice by poor and deprived 105

Report of the Expert Committee on Legal Aid, processual justice to the people 157 ( 1973).

139 sections of society: Such inclusion will not only promote the Bar Council's agenda of teaching professional skills but will also ensure that more law schools undertake legal aid activities making law accessible to the poor and deprived. The legal aid clinics in law schools in India function as an adjunct social service activity rather than part of the main curriculum. Involvement of students in the legal aid clinics as part of their courses has many benefits. First, it will result in the training of students in the professional skills of lawyering, (as desired by the Bar Council) through introduction of the practical training courses. 106 Second, inclusion of the social service activity in the main curriculum gives a clear message to the students that legal aid is integral to the profession and not something which the law schools and lawyers engage in at their discretion. This realization and perspective is necessary to serve the long recognized need for legal aid of a large population of poor who go unrepresented in the absence of sufficient number of lawyers providing free legal aid. Third, it will ensure legal aid work a place of priority in the law school planning and administration and hence the functioning of legal aid clinics will not remain a labour of love of a few teachers in the law school. Finally, it will generate awareness about and sensitize the upcoming generations of lawyers to the problems of poverty and access to justice. This exposure to the unjust and difficult situations people live in during their education will lead to more sensitive and just decisions and practices by them when they assume important offices of decision making as lawyers, judges, politicians ,or bureaucrats. Hence, it must be compulsory for each law school to evolve projects aimed to help various sections of society living in difficult circumstances and to involve law students in them as part of their curricula. Report of the Expert Committee on Legal Aid' had pointed out some of the obvious benefits to the student, to the profession and to the cause of legal aid which a student legal aid clinic imparts as follows: The nature of existing legal practice heavily inclined towards the rich business corporations and propertied individuals is bound to get a revision-orientation with the advent of legal aid. An expanding clientele drawn from the poor, the oppressed and the under privileged will generate new demands upon the legal profession including new skills a value system favorable to the weaker sections and a sensitivity to injustice.

106

Students participate in the Legal Aid Clinics in al: law schools on a voluntary basis and their work in the clinic is not assessed for examination, as is the case in courses that arc part of the main curricula.

140 Given proper supervision, law students can give excellent legal aid and advice at much cheaper cost to remote villages in the country where official and professional agencies often fail to serve.

The legal aid clinic is an excellent medium to teach professional responsibility and a greater sense of public service, Faced with real challenging problems and-conflicting value choices the student develops necessary perspective, a sense of relevancy and proportion and skills to articulate and apply rules of professional ethics in concrete situations . The law school clinic is a visible and effective instrument for Community education and a wide variety of far-reaching preventive legal services programmes.

An important by-product of inducting law students in legal aid is its potential contribution towards a better legal education, socially relevant and professionally valuable.107 The word legal aid has been used here as encompassing all kinds of legal aid activities in the community, including legal literacy and awareness, ahem ate dispute resolution, Para-legal and legal aid work in judicial, quasi-judicial and administrative bodies and for the inmates of various State-run institutions A law school that already has a legal aid activity may begin by identifying the skills students are taught / learn by participating in that project it may then consciously choose the skills requiring special attention and decide the methods for systematic imparting and evolution of this skill. For example, in a typical legal aid clinic students are usually given some basic legal knowledge on the field of work of the clinic before they are sent to the community while the students learn on their own about client interviewing and counseling, negotiation, legal research and drafting. (Empathy and awareness of the problems of the poor are prominent among many skills needed by students.) There is no structure to this learning nor any reflection and analyses on it. There is enough literature available on each one of these aspects that the students should he asked to read. The teacher should supplement this reading with role-plays and research and writing exercises. Armed with this skill the students would be able to handle the field situations better. In case a law school is beginning afresh, it has to at the outset, as with any other course, be clear about the "objectives of the course. Broadly speaking there will always be the twin objectives of teaching professional skil1s and serving the community. However, what needs to be identified are the particular skills the course aims to achieve and the kind of project that would be most suited to teach those skil1s. For example, if the school wants to focus on alternative dispute resolution, participation in lok adalats may be more suited to hone these skills than a legal literacy programme. On the other hand, a legal literacy

107

141 programme may be chosen if the object is to teach legal research and writing and communication skills. Assisting the clients by drafting their documents for filing in courts or other official bodies gives opportunities to train students in drafting, pleadings and conveyancing. It is of utmost importance to remember that all community projects leave an impact on the people whose lives they touch and the students should not be allowed to interact with community until they have shown sufficient sense of the responsibility and commitment towards the people with whom they would be interacting. Since the people whose life these projects touch are usually deprived it is the responsibility of the project directors to ensure that the students' learning projects should not result in greater disillusionment or harassment to the clients. Hence, each one of these activities in the field needs to be preceded by rigorous classroom training. Having identified the skills and the project for those skills the teacher needs to identify the regarding material for those skills, choose skills teaching method and identify or develop appropriate simlilation exercises for practicing them in the classroom setting before allowing the students to interact with the live-clients. There are a good number of books, few Indians108but mostly foreign available on the subject to choose from on various aspects of trial, pre-trial, ADR and other' skills required by a lawyer. Lecture and case-methods may be supplemented or substituted by brain storming, experiential, simulation, role plays, group discussion, games, pyramid, sub-groups, hypothetical problems, handouts. 109 Each one of these methods involves the students in active learning but choice of the appropriate method is crucial for success. For example, brainstorming is most appropriate for generating ideas and widening the canvas of thinking. Experiential learning stimulates learning either by making the students recall an actual experience from their lives or creating an everlasting experience in the class for generating empathy. Simulation exercises like moot courts are good for learning argumentation and communication skills, while roleplays may be used effectively for client interviewing and counseling and professional ethics. Group discussion results in the thrashing out of ideas and enables the students to work with others. Games bring in fun and sense of outshining the other while learning Pyramids start with the activity “beginning with two participants and then including others through a snow balling effect. This activity may be more useful for learning fact gathering, relevancy of fact and active listening. Activities in sub-groups may provide opportunities for improving the skills of observation and critical peer evaluation. The students learn to apply the law in a given hypothetical situation. Handout or written materials supplied helps in retaining the important points of the subject. Finally the teacher may need to determine the manner of evaluat4Jn of the students' skill and fieldwork. There are many options .to choose from for evaluation of these skills. One may decide to evaluate them on the basis of their performance In simulation exercises after 108

109

Steven Lubet’s Modern Trial AdvocyAnd Practice (1992)

See, Brun and R. Johnstone, “the quite revolution improving students training in law” (1994) See also, Simon Rice with Graeme Coss, A Guide to implementing~ clinical teaching methods in the law schoolcurriculum (1996).

142 due practice or they may be evaluated on the basis of their performance in a given field, work activity. In the latter case, factors like initiative, participation, diligence, rapport with the client, confidence building, empathy communication, time-management, etc. may be among the factors to be focused for evaluation rather than the outcome of their work. The best of efforts may not bear results while the least work may show best results. For example, if the students have been assigned to work for a lok adalat, it should be irrelevant for the purpose of evaluation whether the client showed up for the lok adalat or not as that may be influenced to a great extent on the client's own motivation rather than the nature of the effort put in by the student. Similarly, if the students are participating in the litigation process, they' should not be judged on the outcome of the case but how they handled it. The outcome may be dependent on a variant of factors. Understanding of facts and their relevancy knowledge of legal provisions and precedents, preparation of papers, delivery of arguments? Summing up of the case, court manners and body language are more"; appropriate aspects to judge student's performance.

Professor Jay Erstling from the University of St. Thomas, Minnesota, USA while acting as a consultant to the Bangladesh Bar Council, expressed his view on the objectives of legal education as follows: “Legal Education must inform students about crucial societal issues, including poverty alleviation, the role of women. the environment and human rights must focus on ways in which the legal system can help to solve the problems plaguing society. In other words, legal education must not teach students simply what the current law says, but it must provide students with the vision and skill to make the law more responsive to the development needs of this country. Put simply, it must train students to be social engineers. Legal education must not only teach students about legal theory, but must prepare students to engage in the practice of law or law related professions. Students, therefore, must learn not only how to be outstanding lawyers but also outstanding members of the judiciary, government service, NGO or industry. To accomplish that goal, legal education must impart skills in research,- drafting, oral communication, interviewing, interpreting and advocacy ...” Law students are expected to learn practical lawyering skills in two ways, namely, classroom courses for teaching such skills and legal aid clinics. For example, in the Law Faculty in Delhi University the course on Drafting, Conveyancing, Moot Courts and Professional Ethics has teaching of skills of legal writing, argumentation and issues of professional ethics as its primary goals. The Law Faculty also has its legal aid clinic and has run its legal aid programmes in the beggars' court, juvenile court and Tihar Prison in addition to organizing legal literacy camps in rural areas on a regular basis. It has been long recognized that legal aid clinics offer a large range of professional skills to students. A variety of skills not otherwise available to the students in the traditional legal curriculum are provided by the law school clinic. These include interviewing and counselling, the association and management of human relations, fact gathering and sifting, fact consciousness and a sense of relevancy, legal research and writing, handling crises-

143 situations and intelligent decision-making and above -all an appreciation that law is only one method of solving problems and not always the best method. Mainstreaming of legal aid clinics and other similar programs by incorporating them in the LL.B. curricula is necessary to ensure teaching of the practical skills of lawyering and generating awareness and sensitivity to the issues of access to justice by poor and deprived sections of society: Such inclusion will not only promote the Bar Council's agenda of teaching professional skills but will also ensure that more law schools undertake legal aid activities making law accessible to the poor and deprived. The legal aid clinics in law schools in India function as an adjunct social service activity rather than part of the main curriculum110 Involvement of students in the legal aid clinics as part of their courses has many benefits.

110

•

First, it will result in the training of students in the professional skills of lawyering, (as desired by the Bar Council) through introduction of the practical training courses.

•

Second, inclusion of the social service activity in the main curriculum gives a clear message to the students that legal aid is integral to the profession and not something which the law schools and lawyers engage in at their discretion. This realization and perspective is necessary to serve the long recognized need for legal aid of a large population of poor who go unrepresented in the absence of sufficient number of lawyers providing free legal aid.

•

Third, it will ensure Students participate in the Legal Aid Clinics in all law schools on a voluntary basis and their work in the clinic is not assessed for examination, as is the case in courses that form part of the main curricula.

•

Finally, it will generate awareness about and sensitize the upcoming generations of lawyers to the problems of poverty and access to justice.

Report of the Expert Committee on Legal Aid, Process of Justice to people 157( 1973).

144 INTEGRATING CLINICAL LEGAL EDUCATION INTO THE LAW SCHOOL CURRICULUM

Topics To Be Included in the Clinical Curriculum111.The following is a list of topics resulting from a brainstorming session at the Colloquium: • • • • • • • • • • • • • • • • • •

Interviewing Negotiation Analytical skills Analysis of legal materials Communication Responsibility Emotional control Legal analysis Time management Research skills Professional ethics Legal technique/legal writing Counseling/basic psychology Court case analysis and planning Interrogation at court Oral advocacy (discussion in the court room) Mock trial Street law

Techniques and drills for improving teamwork among the students in the clinic • • • •

Investigation of facts Values Discussion of the duty of the lawyer to help improve the law and to ensure that legal services are available to those who cannot afford them Awareness about the law/substantive legal knowledge

Students should be aware of the unique "language" of each particular area of the law; criminal and civil proceedings documents have their own peculiarities. In one legal writing exercise used in Russia, students are given a copy of an informal, poorly written letter to a judge, are asked how a judge might react and are instructed to change the letter into a proper legal document. Participants from Jagiellonian University, Krakow, Poland stated that they place great emphasis on communication, legal ethics and time management. The Krakow clinic has 111

The Third Annual Colloquium on Clinical Legal Education in Central and Eastern Europe Russia and Central Asia, 2000

145 created time sheets to help their students keep track of the amount of time that they spend on each project. Psychology is given great emphasis in the Warsaw University Clinic. The Warsaw Clinic emphasizes that it is important to focus first upon basic communication skills among students—as people engaged in normal day-to-day interaction—before moving on to legal communication skills. The clinic consulted its resident psychologist about how students might tactfully end interviews, among other issues; she has also been helpful in increasing students’ sensitivity to clients with mental disorders. The psychologist also addresses problems with "burn out" syndrome among the students and has provided students with stress management advice. Following the presentations by Barbara Schatz and Ekatarina Shugrina, the participants broke into working groups that formulated model syllabi. The working groups each developed a model syllabus for their clinical specialty (i.e., refugee and asylum law, civil law and criminal law).

Suggested Syllabi REFUGEE AND INTERNATIONAL HUMAN RIGHTS CLINICS The primary casework of the students in the Refugee and International Human Rights Clinic occurs before administrative hearing officers and during the group intake phase at refugee centers. Teaching goals/service obligations/suggested teaching techniques: I. Orientation (includes reviewing the mission statement of the clinic and establishing welldefined roles for clinic students) • •

Students interview and introduce each other. Questionnaires and individual meetings with students to determine case and partner preferences and learning goals.

II. Professional Values (includes case management techniques such as recording of activities and tracking/returning calls, and psychological issues such as empathy and emotional control) •

Group case discussions

146 •

Supervision (faculty with one student or student case team)

III. Interviewing (includes working with vulnerable populations) • • • •

• • • • • •

Visiting lecture by psychologist to discuss interviewing techniques and help students cope with burn-out Visiting lecture by refugee turned refugee advocate Seminar lecture/discussion Simulated interviews by students (with review of videotape clips in class and student viewing of tapes for self-criticism, where video equipment is available) Role plays Legal technique/legal research and writing: Non-clinic course in refugee law Orientation/in-class discussion Comments on written drafts During supervision

Negotiation/informal persuasion: This category was defined to mean persuasion of non-judicial government officials with power over our clients, such as refugee camp guards and prison officials. Students should strike a balance between advocating strongly for their client and playing into negative institutional forces or stereotypes, such as corruption by money or flirtation. Faculty members can strategically intervene in a case in order to smooth the way for students. Counseling (including providing clients with initial information and dealing with vulnerable populations): • • • • • • • • •

Seminar lecture/discussion Simulated interviews by students Role plays Court case analysis/case theory or strategy: During supervision Seminar lecture/discussion In-class reviewed drafting exercises Comments on written drafts Pre-hearing mooting sessions

Country of origin information research (including past/future conditions corresponding to the asylum applicant’s persecution history) Cross-cultural issues: • • •

Workshop/seminar lecture/discussion Lecture by visiting sociologist Role plays

147 •

During supervision

Substantive law (particularly including domestic and international refugee/asylum law, administrative law, ECHR cases, CAT cases and comparative cases): • • •

Non-clinic course Seminar lecture During supervision

Beth Lyon noted that she does not require completion of substantive law requirements in advance of the clinic because each case is different and students are expected to research and learn the law for their own cases just as lawyers do. This may be particularly relevant to the American approach to legal practice. Other participants felt that it would be more desirable for students to learn all the applicable code provisions before taking on cases. Oral advocacy skills training: • • • • • •

Non-clinic course Seminar lecture/discussion Pre-trial mooting sessions Role plays Simulations/mock trials (with review of videotaped clips in class and student viewing of tapes for self-criticism, when video is available) Court observation

CIVIL LAW CLINICS The Civil Law Clinics group recommended that a model syllabus contain the following: An overview of the various substantive areas of law that the students will encounter in the clinic. An overview of the operations of the clinic and orientation to the clinic (note: this can begin either before the clinical year or during the first few weeks of the clinic). This phase should outline the clinic’s goals, give an overview of the structure and definition of the legal clinic, provide basic procedural information, provide students with copies of any necessary clinical manuals, and emphasize computer skills training. • • • •

Lecture on the basic points that students must know before counseling clients. Discussion of skills and issues related to conducting a consultation or interview. Lecture on alternative dispute resolution (ADR). Practice drills in using legal information effectively and in drafting legal documents.

148 • • •

• • •

Presentations and role plays on professional ethics, regulations, etc. Psychological training for students working with clients. Internships in the various spheres of the other clinics (note: the working groups suggest that lawyers who work in these respective spheres be invited to the clinic to speak). Presentation on using the mass media and publicity for conflict resolution. Externships at courts, government agencies, and the prosecutor’s office.

CRIMINAL LAW CLINICS The following outline for a syllabus was suggested: I. Context (organization of criminal justice system and constitutional law) II. Substantive law • • • •

Understanding of multiple sources of law Main statutes and updates Legal research on the computer and in the law library (official gazette) Interpretation by professor of difficult theoretical distinctions (e.g., justification and excuse)

III. Procedure (pretrial detention and standards) • • • • • •

Presentation skills Fact investigation Reporting Alternative dispute resolution and negotiation Psychological training Working with NGO’s and the media and educating media in legal issues

IV. Integrating the above • • •

Interviews and mock trials In-court observations Exercises (e. g., dealing with the creativity of the students to apply their legal knowledge; teaching students how to recognize stereotypes and how to deal with them)

•

Role of clinical legal education in increasing access to justice

149

In our adversarial legal system, poverty, inordinate delay, high cost of litigation, lack of legal aid mechanism and unavailability of alternative informal justice delivery system are considered the road blocks in the way of access to justice. In most of the cases, access to justice is only 112available to the resourceful person and powerful elite since in order to have access to justice one must have the means, which includes money. The poverty-ridden people in our country are, normally, not aware of the rights and the reliefs they are entitled to. This is primarily due to lack of education. Even if they are made aware of their rights and the reliefs, because of financial constraints they cannot enter even the gate of justice. In this context, law and the attitude and activities of the personnel involved with the operation and enforcement of law can be used to help the poor and the disadvantaged to exercise greater control over their lives. The institutions of legal education i.e. law faculties and law departments in the universities, both public and private, and the law colleges can play a vital role in this regard. These institutions can distinguish themselves by concentrating their resources and efforts in encouraging and enhancing access to justice. Clinical legal education is basically practical legal training through moot-court, mock-trial, participation of the students in ADR and in public legal education i.e. mass legal awareness programmes, chamber practice with the lawyers, counseling, participating in the conduct of life cases, short of appearing in the courts. Clinical legal education is learning through doing, or by the experience of acting as a lawyer. Hence, this is experiential learning. Clinical legal education merits separate treatment, for it is not merely a methodology of teaching or learning, it is also providing service to the people and, hence, more practical and noble. When young students at the formative stage of their career are exposed to community legal services, they get sensitized to the problems and needs especially of the marginalized sections of the people, and feel motivated to continue to work for them when they enter professional life. Thus, clinical legal education programme encourages law schools to expand their educational objectives to more completely serve the needs of their students and to provide instruction about the knowledge, skills, and values that will enable their students to become competent legal problem solvers. Successful implementation of clinical legal education programmes in the law faculties and law schools in a country like India will not only improve the quality of its legal education, but it can go a long way in meeting the demands of social justice, legal needs of the poor and improving human rights conditions. Enhancing access to justice Objectives of clinical legal education can be achieved under the supervision of law 112

Mostafa Mahmud Naser, Assistant Professor of Law at the University of Chittagong and a former participant in the Winter Course on Forced Migration 2006 The Hindu, Friday, May 11, 2007

150 faculties or law schools by undertaking massive works in the following areas: Integration of social values through curriculum: Lack of social relevancy and humanistic approach in the curriculum alienates and suppress various values, ethics, gender perspectives and views of minority etc. Therefore, by way of adding courses to the curriculum that address the issues of gender, cultural migration, minority and indigenous peoples or allowing students to work with people of other cultures, we can equip law students to revisit their responsibilities to the marginalized section of the society. The law curriculum should be introduced in integration with other disciplines. It is time to appreciate that the subject matter of economics, sociology, anthropology, philosophy, literature and psychology are essential to the education of the future law graduates. As the minimum, the budding lawyers must be taught in the economics of law, lawsuits and lawyering. Members of the legal profession need to play the role of educator, planner, and counselor. Therefore, lawyers must be trained in skills that provide for a broader understanding of various facets of legal problems. Fundamental lawyering skills are important to provide social justice. However, any set of skills confined only to traditional methods of problem solving would be manifestly insufficient. Students would be required to undergo the entire process of lawyering either by exposure to actual cases or in dramatic simulations. In both instances, they are to act as lawyers and learn the details of lawyering from the experience of being a lawyer, real or simulating. While the students work under the supervision of a practicing lawyer or a clinical teacher, they are expected to face situations, analyse facts and take decisions independently. In externships programmes, post-graduate students are required to work with leading NGOs, engaged in para-legal activities in different parts of India. This programme proved extremely useful for the students as it provides necessary motivation and sensitizes and exposes them to the society and masses at large. Placement with legal services groups will offer law students valuable opportunities to broaden their perspectives, integrate such services into their careers, and join the community of legal activists. Law clinics remained focused on poverty law issues and formulated increasingly sophisticated educational regimes to accompany live client representation. Balancing the twin missions of service and education, the clinical movement became an institutionalized component of legal education. Today, there is little dispute about the merits of clinical legal education. By addressing human rights and social justice concerns, law clinics and NGOs may help upgrade the quality of the legal profession in general. The clinics and expanding NGO opportunities improved legal training and encouraged high-calibre graduates to practice law. Law schools can also establish legal aid cells where students and teachers can guide people in identifying their problems and make them aware of the remedies available to them. Students in these cells can also provide paralegal services such as drafting affidavits, assisting in registration of marriages, births and deaths, electoral rolls, and filling out

151 various forms. This type of work gives students ample opportunity to learn key interviewing, counseling, and drafting skills. Another approach is for law schools to adopt a village and encourage students to conduct a survey to identify the problems that the people in that particular village face. After identifying the problems, students can approach the authorities concerned and arrange a public forum. Often, local authorities are not responsive to local citizens' concerns, especially those from disadvantaged communities. The idea here is to inform villagers about the programme and to encourage them to participate in the forum so that they can meet the officers concerned on that particular day and can settle their grievances in public. Students can be instrumental in the smooth functioning of the entire programme, and they can follow up on particular matters with the officers concerned. Justice education requires us to place an even greater emphasis on negotiation, dispute resolution and collaborative working relationships. Our students must be taught how to resolve problems before they deteriorate into potential lawsuits. Our young lawyers need to be educated to recognize that even if the outcome of litigation is relatively certain, there is not always just one right answer to a problem. A money judgment may not be an effective solution for all parties, and so lawyers should work to provide for a lasting solution, one that is worked out through negotiation or appropriate dispute resolution. They need to learn that it is not enough to root out the facts of the problem: they must understand the context in which the problem arose. 'A good lawyer can assist clients in articulating their problems, finding their interests, ordering their objectives, and generating, assuring, and implementing alternative solutions.' Public legal education can be effected through lectures, discussions, publications and distribution of simplified and adopted versions of constitution and international human rights instruments etc. or adopting any other informal methods like production of street plays that focus on legal issues. As a part of the public legal education programmes the aforesaid lectures, seminars and discussions can be organized in villages, factories, professional unions, educational institutions and amongst particular disadvantaged groups like slum dwellers, garments workers or aborigines. Public legal education should also motivate the people to participate constructively in the creation of law, which has a pervasive influence on our society. The whole idea of clinical legal education can go in vain if ethical side of legal profession is overlooked. Objective of clinical legal education is not merely to help students master the skills of lawyering and make them technically sound. In representing a client's case in the court, student lawyer must not resort to any means, which is morally condemnable, must avoid resorting to false witnesses and distortion of facts. While client's interest must guide his actions and efforts, ethical and moral values must also be upheld, for in that lies greater good of the society. In fact, in all the programmes that are linked with clinical legal education emphasis is always on the aspects of justice, protection of rights and progressive development of the society. While execution of these programmes requires moral and

152 ethical motivation, successful implementation of the programmes will itself instill further ethical and moral values in the students. Our legal education has so far been concentrating on the lawyering process and skills learning. To make legal education truly meaningful in the context of our social realities effort must be made without further delay to accommodate the remaining objectives in the clinical curriculum. This, very likely, will necessitate establishment of 'out-reach programmes' where students will have the opportunity to interact with 'real problems', whose resolutions they are expected to come up with. This will allow the students to reflect on whether justice can always be done by litigation. The Constitution of India in its preamble and Fundamental Principles of State Policy speaks about social justice, which is the key pillar of the Constitution, according to which it shall be a fundamental responsibility of the state to attain, through economic growth, a constant increase of productive forces of the people, with a view to securing to its citizens the provision of the basic necessities of life, including food, clothing shelter, education and medical care. But due to vicious circle of poverty, even after so many years of independence these goals are yet to be achieved. High ideals of our liberation struggle as reflected in the constitution will continue to remain mere promises if we fail to ensure that every individual citizen has access to justice and access to the law- just law justly and equitably administered. In the background of constitutional commitment and the societal needs, legal education must embrace a broad and comprehensive concept.

CASE STUDIES ELTE University Children Rights Clinic, 2003 Almost 1000 children were served just by the 7th district Children’s Welfare Service through the year of 2002. In Budapest, yearly 50 000 children are reported to be in trouble at home beaten by the family members, or others, living on the edge of the physical existence because of missing the adequate minimum supply by the parents. Most of the cases have been far beyond the threshold of acceptance, moreover beyond the threshold of legality. Children Welfare Services mostly do not have the legal background for providing the necessary legal assistance for these children and their parents, mostly mothers. Children’s Rights Clinic program was initiated for bridging this gap and with the assistance of law students provide the minimum necessary support for the children and if it needs for their parents. In the 7th district Service out of 1000 cases 752 children’s conditions were so dangerous in the family they needed to be taken into community care. In 586 cases, the family needs to

153 be supervised and supported regularly and continuously. Out of 1000 cases 812 children raised in Roma family facing with huge social and discrimination problems.

Educational Component: Children’s Rights Clinic is an integrated program for preparing the students: •

• • • •

especially for being aware and using the Children’s Rights and Protection Law, and all the relevant legal regulations, including criminal law, family law, etc.; for being able to contact children in trouble and explore their problems; for being able to articulate their problems and rights towards the family and authorities; for being able to understand the mechanism and operation of the Children Welfare and Protection system; for being able to inquire in the juvenile justice system and the operation of the family court.

Children’s Rights Clinic takes responsibility: •

•

•

for providing weekly two times all together four hours legal consultation for the clients of the 7th district Children Welfare Services in their offices; legal consultation will be provided by law students after psychological, skill and specific legal training, under the supervision of a family judge, and a family lawyer; for assisting in specific cases where children and their family need legal assistance and protection against different authorities, or other family members; in this respect Clinic is able to take yearly 8-10 cases; in these cases students and supervisors are able to develop legal advocacy and class action litigation programs; for developing the daily practice of the authorities (such as: police, prosecution, state children protection system), and other organizations dealing with children’s cases (orphanage system, brutal system, foster parents system) through their training, education, etc.

The College of Law of England and Wales

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The Sheffield Hall am (SHU) model is a powerful demonstration of what can be achieved with a cohort of students doing intensive work over an academic year. Resorting such an initiative is, however, cost-intensive and in this instance caters for relatively small student numbers. By way of both complement and contrast at The College of Law a somewhat different clinical approach has been adopted. The rationale for this is dictated by the nature of the college's programmes (overtly vocational and intensive), the numbers of students wanting and expecting 10 get a 'hands-on' learning experience,44 and the fact that students pay significant sums for the privilege of undertaking this stage of their legal education. In order to cater for the student demand the college has had to develop a wide range of clinical activity and to ration the student involvement so that the experience is spread across the year amongst all those who want to take part .. The college has four models of clinical activity: . In-house Legal Advice Centres (LACs) -where students, under supervision from professionally qualified staff, provide written legal advice to members of the public. A Tribunal Representation Service(TRS) - an extension of the first model to include representation before selected tribunals including in employment, housing, education, social security and immigration/asylum cases. Placement Clinics (PC's) - with students working as volunteers for other legal service providers· including in the private, governmental and not for profit sectors.  A legal literacy or Street Law programme - through which community groups .work with _college staff and students on· customized and· interactive material' addressing rights and responsibilities in a legal context - tailor-made public legal education. Each of the models described above share identical foundations: •

the pedagogic aims and operational 'rules' are set out in a dedicated handbook for

each •

students (and in the case of placement clinics and Street Law, external participants) are inducted in the workings of each clinic and the professional and personal requirements and expectations applicable •

case and student progress are closely monitored throughout the clinic activity by appropriately qualified staff (barristers, solicitors and office managers) •

evaluation sessions are held during each clinic and at the end of the student's time in that clinic

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students are guaranteed at least one case or project to work on and this typically takes 5-6 weeks of intensive effort. Students may be offered further opportunities to- do clinical work but this depends on whether cases are available and whether all students who want to have had the chance to take part •

the link between experiential learning arid pro bono work is central to The College's mission in part to support student learning, in part to encourage professional responsibility and in part to help address un met legal needs. For Bar students the clinic can form part of their assessed work, counting as a fully weighted elective. For students studying to be solicitors the clinics are voluntary and a certificate of satisfactory completion is awarded following the conclusion of their case. Students taking the college's conversion course (for non-law graduates) get an endorsement on their results transcript if they take part in any of the .c1inics. Students who opt to take the college's Public Legal Service 'pathway' as part of the Legal Practice course will take part in clinical work as an integral component of their studies. The college works in partnership with a wide range of bodies and organizations in the governmental, legal practice, business and not for profit sectors, in order to create the opportunities for student participation and to supplement and compliment other legal service provision.

Sheffield Hallam University Law Clinic SHU Law Clinic opened its doors in February 1993. The Law Clinic offers pro bono advice and assistance to clients on a range of legal matters, inter alia, consumer, personal injury, housing, landlord and tenant, family and property. The SHU Law Clinic is an assessed model as part of the law degree programme at SHU, it is optional and students can elect it in either their second or third year of study. Places on the law clinic are limited to 36 students; this is mainly because of the supervision requirements and, at present, lack of physical space. Thirty-six students, are selected, having had to write a 500-word essay on what they expect to gain from taking the elective. Students are then grouped in firms of 6 students and each student has a supervisor. Prior to the' commencement of the course students attend two half-day induction sessions, whereby students get to know each other and the law clinic supervisors, and are introduced to the concept of clinical legal education. At the end of the induction course students are asked to sign a 'contract' to agree to certain terms and conditions by which the law clinic operates. This is to highlight to the students that they will have to undertake a serious commitment to the work in the law clinic, to their clients,. to their supervisors, to each other and, ultimately, to themselves. Once the course commences each firm meets weekly with their supervisor to discuss the caseload. Also any

156 ethical, social, political issues connected with the cases are discussed to place the law in context31 Students are encouraged to work autonomously and in their teams. The supervisor does not direct their work, but much guidance and constant feedback on their work is given to students by their supervisor to provide a 'safety net'. Clients of the law clinic are mainly SHU staff and students along with clients referred to the law clinic from outside organizations (mainly employment cases). The work the student does is closely monitored and controlled by the supervisors, in that there are certain cases the law clinic will not embark upon, for example urgent cases: 'I'm being deported tomorrow can you help?' or ones containing high financial sums. It is believed to take on such cases may not necessarily be appropriate for the students or clinic to handle and, more importantly may not in the best interest of the clients. The supervisors also guide the number of cases students 'work on, although the students are consulted at every stage. In over twelve years experience of c1idcallegal education at SHU, we have learned that 'less' can often mean 'more'. If students are working on a large number of cases, the cases are merely 'processed' and the deep learning experience for the students does not take place. It is preferable, therefore, to work on fewer cases but work in depth on each case. This is a much more satisfying ~educational experience for the student and the client, who will be getting a 'Rolls Royce' service.32 Although it could be argued that we are not fulfilling our pro bono commitment of meeting the unmet need of Sheffield for those requiring legal services, it is maintained that as an 'academic' course, our priority is to fulfill the educational needs of our students, however, once an individual becomes our client our commitment to him/her is paramount.

NATIONAL LAW UNIVERSITY , JODHPUR. The University as such highlights various critical issues facing the legal education and equally the profession today in the light of the changing dynamics of the growth and complexities in other disciplines of social life and insists upon these being addressed in the teaching of law. Some of these critical areas identified by the University • • • • • • •

Information technology and cyber knowledge Biotechnology and genetic engineering International trade and global standards Global accounting and legal standards Infrastructure systems Project finance and good governance Social justice and equation of interest

To accentuate these objectives, the University practices various methodologies of teaching & learning process such as co-operative teaching, case studies, lecture demonstration,

157 group discussions, and self-conducted research. Evaluation is carried out on continuing basis on grade points. As a teaching-learning process, courtroom exercises are an integral part of the curriculum from the very first year. The University has found these exercises to be highly successful in sharpening the lawyering skills in the students and providing them a real life exposure to the profession. In additional to the above, the University also takes pride in its eight centres of learning which it describes as the Centres of Studies & Research namely, • • • • • • • •

Center for Studies in Agriculture and Law (CSAL) Center for Studies in Banking and Financial Institutions (CSBFI) Center for Criminal Law Studies (CCLS) Center for Human Rights Education and Research (CHEAR) Center for Intellectual Property Law (CIPLAW) Center for Studies in Insurance (CSI) Center for Regional Economic Groupings (EEC, NAFTA, ASEAN, SAARC) (CFREG) Center for WTO Studies (CWS)

The University also conducts several short and medium term orientation, training and refresher courses for NGOs, Government officials and public administrators, local selfGovernment, legal professionals including members of the bar and the bench, other administrative authorities and corporate officials.

National Law School of India University (NLSIU), Bangalore became functional in 1988 as the first Indian Law University. Established under the 1986 statute of Karnataka Legislature, it is the only law school in India that is sponsored by the Bar Council of India. To provide high-quality legal education, the Law School has forged unique partnership with the Bar, the Bench and the Academia. Right from its inception, leading lawyers, academicians and judges have associated with NLSIU in different ways. The five-year B.A., LL.B.(Hons.) programme offered by the Law School integrates legal studies with that of four social science subjects, which include History, Political Science, Economics and Sociology during first two years of the programme. During the first four years, all subjects are compulsory, but in the fifth year, students have a choice to attend optional seminar courses that can be chosen according to one’s preferred specialization area, such as corporate law. Experts in various fields are invited to conduct seminars of these optional subjects, such as International Taxation, Information Technology Law, Telecommunication Law, Negotiation Skills, Law of Elections and Women and the Law. Scholars and experts from India and abroad are also invited to conduct the credit courses, comprising about 18 lecture hours in a week. Students with basic understanding of the subject can attend these credit courses. Credit courses that are available include:

158 • • • • •

Shipping Laws, Genetic Resources Policy, Law and Literature, The U.S. Patent Laws, and South African Constitutional Law.

Students with strong academic credentials may get opportunity to work as law clerks with the Supreme Court and High Court Judges. NLSIU also offers state-of-the-art research centres that work in the fields of: • • •

Juvenile Justice, Environmental Law and Intellectual Property Rights.

Besides participating in research activities, the students can participate in workshops and seminars conducted regularly in fully equipped International Training Centre. Student community at NLSIU is alive with curricular and extra-curricular activities and events. The practice in the moot court hall, which was named after Honorable Justice Hidayatullah, has been quite instrumental in assisting the students to win moot court competitions at national and international levels. NLSIU also hosts moot and debate competitions where participants from all over India and neighbouring countries such as Pakistan, Nepal, Bangladesh and Malaysia participate, along with sports and theatre festivals from time to time.

Social Justice Activities in legal education at NLSIU: 1. The Legal Services Clinic: this is an institution which every law school is encouraged to have in the interest of better legal education for its student body. Practical training or clinical education is best organized around the clinic which can be in the Campus or outside or at both places. National Law School has it both in the Campus and at the City Court Complex. The Clinic organizes a variety of programmes involving the students and the Faculty. Firstly, it operates an advice and counselling centre giving para-legal services to interested clients, and social action groups. Secondly, it runs in association with a Women’s group two rural mediation centres in a cluster of villages serviced by the group. Apart from awareness generation and mobilization for legal action, this activity is directed to settle disputes informally through conciliation and mediation techniques. Thirdly, the Clinic imparts legal literacy packages to groups of students in undergraduate women’s colleges in the city enabling them to use the resources of law to solve their problems in their later

159 career and life. Fourthly, the Clinic organizes periodically week-long residential para-legal training courses for representatives of social action groups wherein they are given capabilities for giving first-aid in law, for accessing courts and public authorities, and in liasoning with legal aid authorities and professional bodies involved in legal aid. Fifthly, the clinic gives supportive services in the organization and conduct of Lok Adalats which is a popular forum for settlement of disputes through negotiation between parties. Finally, the clinic does field research and on-the-spot investigation on issues of public importance involving social justice and submits reports to parties concerned and occasionally initiates public interest litigation in the higher courts of the country. The Clinic is managed by a retired judge who is the professor of Clinical legal education in the law school. He is assisted by students and other Faculty members. The activities of the Clinic are integrated with the education of the students for whom credit is given for their participation. Periodic seminars and workshops around the experiences in the Clinic enable the students to critically evaluate the role of law in Societies and its limitations as a changeagent and to understand professional ethics in the context of social situations and value systems.

2. Centre for Women and the Law: It is widely believed that all systems of law discriminate against women in theory and practice. In this context the Centre at National Law School undertakes academic and extension activities directed towards understanding gender justice issues and rendering legal support to women’s’ rights. The Centre works in close cooperation with the Legal Services Clinic and shares its resources.

Among the activities of the Centre are the following: (a) Feminism in Law and practice: The entire spectrum of legal discourse and jurisprudence is subjected to scrutiny from gender perspective and, in the process, the curriculum at the law school is revised, law reform proposals are advanced and legal practices are questioned on grounds of human rights. In fact, the process has become so intense that a Gender Study Circle is formed amongst the students and a series of research articles on “Feminism and the Law” have been assembled and published in a special issue of the National Law School journal. Even pedagogy at the School has been influenced by this movement for gender justice.

(b) Law Reform activities: One innovative programme the Centre launched among law students was a nationwide competition in community-based law reform proposals on the subject of “Women and equality.” Groups of students from different law schools were expected to select an area of law and an appropriate community to live and experience the people’s perception of the given Law. They are then required to study the lawyers’ law on

160 the subject and come out with proposals for reforming the law to serve the people better. It has been a great success and the Centre has now announced another round of competition around workers and their rights. Some student groups have moved in the direction of translating their reform proposals into law by lobbying with activist groups, media networks, political parties and sections of the bureaucracy. The National Law School reaped rich dividends in the process. The School was commissioned by the State and National Governments to assist them to draft laws concerning women and with the revision of some existing laws. A great opportunity for an academic institution to influence social change and promote gender justice came through this initiative of the School.

(c) Networking and legal support programmes: Most activities of the Centre are performed in association with NGOs working in the area of Women’s’ rights. This facilitates networking for mutual benefit. Students are sent on placement training with NGOs and they, in turn send their activists for para-legal training to the law school. The academic content of legal education acts enriched in the process and a social orientation to legal education necessarily emerges out of this association. The law school which has an interdisciplinary curriculum imbibes new methods of integrated learning and new insights into the role of law in society.

4. Continuing Legal Education: Very early in its development, the Law School was approached by the University Grants Commission for organizing refresher courses for law teachers and by the Bar Council of India for continuing education for young advocates. In organizing these programmes, the law school developed a variety of contacts and skills which in turn helped to improve its regular teaching and research activities. Besides sharing experiences and probing problems in legal education and legal practice, these courses provided opportunities for student placements and influencing the actors of the legal system about social concerns which the law school gathered from the NGOs and social activists. This dimension was felt intensely when the law school was summoned to do training courses for the subordinate judiciary particularly for judges of the Family Courts. Though the programme puts a heavy burden on the law school resources, it has proved a great leap forward in sensitizing and orienting the legal system towards wider social tasks and challenges. Many law teachers seem to think that these activities which the National Law School has taken up in the last five years do not fall within the domain of legal education and law schools generally are ill-equipped for these tasks. They are certainly right in their assessment of the equipment (and perhaps the commitment) of the average law school to discharge responsibly social justice programmes of wider import. But the tragedy of legal education is that without such involvement, law schools will remain isolated and alienated from the people and legal education will lose its potential to engineer social justice

161 particularly through its consumers who are eventually to become the actors of the legal system. If rule of law has to be part of the democratic culture and if human rights were to be respected in governance, there is no alternative except to inform and illuminate legal education with social values drawn from the people for whom the laws are made. The days of lawyers being more craftsmen and judges only umpires in adjudication are fast disappearing and systems of accountability are developing within the legal system and outside. The function of legal education is to enable people to respond to these challenges with a sense of commitment to the struggle for human rights and a feeling for suffering of people everywhere. 'Access to Justice'- Legal Aid Committee national law university The university has a tie up with international organizations and Bhopal based NGOs. The Committee provides necessary legal information to these NGOs. A number of students have been associated with NGOs and have been rendering their services on a personal level. These personal services have now been channeled through the official legal committee. The activities of the cell include: •

• •

•

•

NLIU's partnership with NGO's in pursuance of the Supreme Court Ruling pertaining to the distribution of compensation to the victims of Bhopal Gas Tragedy. Adoption of the village Kesla to provide legal assistance and creating awareness amongst the tribal block of the area. The students of the university have been associated with the Narmada Bachao Andolan and have been helping the oustees in registering their grievances with the Grievance Redressal Authority (GRA). The university has established a strong network with NGOs such as UNICEF, UNHCR, Helpage India, Amnesty International, WWF, CRY, Samarthan etc to support socially relevant causes. The university has established a patnership with the Bhopal District Courts in organizing Lok Adalats, whereby students participate in settling disputes.

DELHI UNIVERSITY The faculty legal services programme The Faculty has been running a Legal Services Programme since the early seventies. The programme is sustained by the voluntary participation of the law students, teachers and lawyers who are inspired by the legal aid ideals. The main objective of Legal Services Programme are to:(a) impart clinical legal education, (b) provide social service opportunities, and (c) impart socially relevant legal education. The Faculty’s recent legal services programme includes legal services at the B Court, the Juvenile Justice Board and visit to the Tihar Jail. The Faculty has a

162 comprehensive Programme for clinical legal education with a view to undertake activities such as moot courts, legal aid services, legal awareness and professional skills development for the students of all the three Law Centres, in addition to curricular course on clinical legal education and practical training.

EMPIRICAL STUDY

“QUESTIONNAIRE”

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NAME : Kanchan Yadav OCCUPATION: Student CLASS/YEAR/SEMESTER: IXth Semester COLLEGE/OFFICE: Vivekanand Institute Of Professional Studies, Shivaji Marg (Affiliated to G.G.S.I.P University, New Delhi)

(a) What do you mean by clinical education/clinics?

Generally speaking it means “learning through doing”. In context of legal education it refers to any law school course or programme in which law students participate in doing what lawyers usually do in their profession

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including representation of clients under the supervision of a law teacher. (b) Do you think clinical legal education has any relevency/importance in legal field in present scenario?

Yes it has. For any student to become successful lawyer both theoretical and practical experience is must.. Our usual law subjects tell us about the theory part, practical experience is possible only through clinical education.

(c) Do you think clinical education should be made mandatory in law colleges?

Yes

(d) According to you how clinical education helps the law students in academics and career ?

It enriches the students with a good practical experience and gives them a good confidence. The confidence and knowledge received therefrom improves his performance academically as well as professionally

(e) Do you think teachers have any role to play?

They have a very important role in imparting clinical knowledge. The teachers provide guidance to students and also help the student in drawing maximum benefits from the clinical experience.

(f) Do you have clinical education as a subject ?If not, do you think it should be introduced ?

No. We had a subject in our 2nd year in which we read about what clinical education is all about and how it is important in present context, but it was limited to theory only. No practical experience was provided with .

(g). Does the college publish any journal inviting articles from the students ?(Give details)

Only occasionally. it invites students to participate (Don’t know the name of the journal)

(h).What is the system in vogue for Practical Training of students ? (Give details )

The most common practice adopted by most colleges is to organize moot court competitions. However this is not enough.

(i).Is the college students/staff involve themselves in legal aid/lok adalats or other activities ?(Give details)

Yes. Recently when Patiala court had organized lok adalat, we attended that.

(j).What are the problems perceived in imparting practical training/ education ?

The main problem is that in India students can’t practice until they have actually completed the law. This in a way hinders students’ growth in legal atmosphere.

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(k) Any improvement you want to suggest in the prevailing system of clinical legal education ?

The subject should be made compulsory and students’ participation in it should not be optional. Further colleges should take this programme as little more seriously.

Name :- Sumeet kumar College:- faculty of law(Campus law centre) (D.U) Semester:- I/2009 Occupation:-Student (a) What do you mean by clinical education/clinics? (b) Do you think clinical legal education has any relevency/importance in legal field in present scenario?

Clinical education is about practical legal education moot courts and internships. Since it's practical education, it is very relevant for a lawyer-in-training. It's practical knowledge plus theoretical knowledge that makes a good lawyer. Yes.

(c) Do you think clinical education should be made mandatory in law colleges? (d) According to you how clinical education helps the law Refer to (b). students in academics and career ? (e) Do you think teachers have any role to play? They have to be the enforcers and the guides. (f) Do you have clinical education as a subject ?If not, do Yes, it's in the curriculum.

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you think it should be introduced ? (g). Does the college publish any journal inviting articles No. from the students ?(Give details) (h).What is the system in vogue for Practical Training of Moot courts and legal aid give students the opportun students ? (Give details ) experience first-hand how it would be like to be a law (i).Is the college students/staff involve themselves in legal Yes. There's a legal aid society in the college devote aid/lok adalats or other activities ?(Give details) this. (j).What are the problems perceived in imparting practical No idea. training/ education ? (k) Any improvement you want to suggest in the None. prevailing system of clinical legal education ?

NAME : kamran malik OCCUPATION: Advocate CLASS/YEAR/SEMESTER: COLLEGE/OFFICE: Stelvad chamber’s, supreme court of India

(a) What do you mean by clinical education/clinics?

It is the practical aspect of what you study in law books.it enables students to apply the knowledge in the practical law field. It includes moot courts,drafting, internships and even seminars.

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(b) Do you think clinical legal education has any relevency/importance in legal field in present scenario?

Surely, it has got a lot of importance as it prepares the student to enter the practical field where they have to deal with complicated issues.

(c) Do you think clinical education should be made mandatory in law colleges?

Yes, it should be made compulsory.

(d) According to you how clinical education helps the law students in academics and career ?

No doubt, it helps a lot. It teaches the students how to dealwith the complicated issues they face in practical field. Moreover, participation in moot courts and mock trials etc.boosts their confidence and make them vocal whichvery important as an advocate.

(e) Do you think teachers have any role to play?

Yes.they are the only ones who can show the students the right path to realize their dreams.

(f) Do you have clinical education as a subject ?If not, do you think it should be introduced ?

When I was in Jamia we did not have as a subject. Even moot court participation was quite unsatisfactory.very few students used to take part and that to very rarely. It should be made a compulsory subject so that students can have a clear idea of the practical field.

(g). Does the college publish any journal inviting articles from the students ?(Give details) (h).What is the system in vogue for Practical Training of students ? (Give details )

When I was a student of Jamia, not much importance was attached to clinical or practical training at college level. Once I started practicing I realized how difficult it is to handle the issues like clients without having any experience or idea about it.

(i).Is the college students/staff involve themselves in legal aid/lok adalats or other activities ?(Give details)

I am attatched to DLSA where I assist in providing legal aid to the poor section of society.

(j).What are the problems perceived in imparting practical training/ education ?

Poor Infrastructure and low participation of teachers and students,

(k) Any improvement you want to suggest in the prevailing system of clinical legal education ?

Nowadays I have seen and realized that not many students want to actually “practice” law. They either want to go for judiciary or corporate. No matter where they go lawyering skills are always needed. Clinical education must be made a compulsory subject and teachers should motivate students to come forward in

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this regard. Students should be provided with broader opportunities to develop and sharpen their skills.internshipunder a lawyer and participation in moot courts should also be made mandatory.

NAME : Imtiaz Ahmed OCCUPATION: Advocate CLASS/YEAR/SEMESTER: COLLEGE/OFFICE: 011, Setelvad chamber’s, supreme court of India

(a) What do you mean by clinical education/clinics?

It is what you learn by practically doing. It is the application of bookish knowledge into practical. It

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introduces the students to the working of the actual “law”in the practical field. It can be imparted through moot courts,drafting, internships and assisting lawyers etc. (b) Do you think clinical legal education has any relevency/importance in legal field in present scenario?

It is very much relevant and important as it exposes the students to the complex issues and realities of the field. It gears hem up to face new challenges. It sensitizes them toward the problems our country and society are facing.

(c) Do you think clinical education should be made mandatory in law colleges?

Yes, it should be made mandatory..

(d) According to you how clinical education helps the law students in academics and career ?

Nobody can deny its importance. No doubt, it helps a lot. It enables the students to apply their minds and teaches them to tackle diverse issues and problems.It teaches them professional skills and ethics to make a great career in this field.

(e) Do you think teachers have any role to play?

Obviously. They are the guiding lights.they must encourage students to come forward.

(f) Do you have clinical education as a subject ?If not, do you think it should be introduced ?

I did my law from Aligargh Muslim University almost a decade ago. We did not have it as a subjectnor any moots were organized. Looking at the present situation and competition,it must be added as a subject in all law colleges.

(g). Does the college publish any journal inviting articles from the students ?(Give details) (h).What is the system in vogue for Practical Training of students ? (Give details ) (i).Is the college students/staff involve themselves in legal aid/lok adalats or other activities ?(Give details)

I am attatched to DLSA where I assist in providing legal aid to the poor section of society and alternative dispute resolution centre of High Court Of Delhi and a number of NGOs also.

(j).What are the problems perceived in imparting practical training/ education ?

I think, teachers overlook the weaker students and they don’t come forward for participation in moots etc.

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(k) Any improvement you want to suggest in the prevailing system of clinical legal education ?

Clinical education must be made a compulsory subject and teachers should motivate students to come forward. Weaker students should be provided with opportunities to discover and develop their talent and skills amd diverse legal issues effecting the society should be taken up s moot problems.

NAME : Sajid Hussain Faraz OCCUPATION:student CLASS/YEAR/SEMESTER:4th year B.A LLB (Hons) COLLEGE/OFFICE:Jamia Millia Islamia

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(a) What do you mean by clinical education/clinics?

Learning through doing

(b) Do you think clinical legal education has any relevency/importance in legal field in present scenario?

Yes it has great importance in legal field,basically it such tool through which poor person can get justice,take the example of khatri v state of bihar is the classical example of the relevance of legal aid.

(c) Do you think clinical education should be made mandatory in law colleges?

Yes

(d) According to you how clinical education helps the law students in academics and career ?

It gives them the real ground reality about the awareness of legal knowledge.

(e) Do you think teachers have any role to play?

Yes they have pivotal role to play in this sector they can motivate the student and organized legal camp in remote areas.

(f) Do you have clinical education as a subject ?If not, do you think it should be introduced ?

Yes

(g). Does the college publish any journal inviting articles from the students ?(Give details)

Can not say

(h).What is the system in vogue for Practical Training of students ? (Give details )

There is no specific training for student.it depend upon the student that how will they take this matter

(i).Is the college students/staff involve themselves in legal aid/lok adalats or other activities ?(Give details)

Yes student involve themselves but not the staff

(j).What are the problems perceived in imparting practical training/ education ?

Basically college not providing enough means to imparting practical knowledge

(k) Any improvement you want to suggest in the prevailing system of clinical legal education ?

Yes in my opinion this clinical legal education must be mandatory for not only law student but also to ther student of the university

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NAME :

Nabeela Wali

OCCUPATION: Law student CLASS/YEAR/SEMESTER: B.A LL.B (Hons.) VII Semester COLLEGE/OFFICE: F/o Law, Jamia Millia Islamia

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(a) What do you mean by clinical education/clinics?

Clinical legal education is a practical training provided to law students to enhance their skills as a lawyer.

(b) Do you think clinical legal education has any relevency/importance in legal field in present scenario?

Yes it does, as 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.

(c) Do you think clinical education should be made mandatory in law colleges?

Yes

(d) According to you how clinical education helps the law students in academics and career ?

It aims towards developing skills and sense of responsibilities in a law student to understand and assimilate responsibilities as a member of public service in the administration of the law, in the reform of the law, in the equitable distribution of the legal services in the society, in the protection of individual rights and public interests and in upholding the basic elements of professionalism.

(e) Do you think teachers have any role to play?

Yes

(f) Do you have clinical education as a subject ?If not, do you think it should be introduced ?

Yes

(g). Does the college publish any journal inviting articles from the students ?(Give details)

Yes, the college magazine Legal Flash.

(h).What is the system in vogue for Practical Training of students ? (Give details ) (i).Is the college students/staff involve themselves in legal aid/lok adalats or other activities ?(Give details)

Yes, the legal aid clinic organized during the Talimi mela.

(j).What are the problems perceived in imparting practical training/ education ?

Lack of Practical training in form of court visits, and first hand experience in client counselling, etc.

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(k) Any improvement you want to suggest in the prevailing system of clinical legal education ?

NAME :

More of practical training should be given to students.

Nandini Ray

OCCUPATION: Lecturer CLASS/YEAR/SEMESTER: COLLEGE/OFFICE: F/o Law, Delhi University

(a) What do you mean by clinical education/clinics?

It i s th e p racti cal trai n in g of s tuden ts to

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es t abli s h th ems elv es as good lawy er s . (b) Do you think clinical legal education has any relevency/importance in legal field in present scenario?

Yes. It prepares the students to face challenges once they nter the practical field.

(c) Do you think clinical education should be made mandatory in law colleges?

Yes, it should be.

(d) According to you how clinical education helps the law students in academics and career ?

It boosts their confidence and develops professional

(e) Do you think teachers have any role to play?

Yes. They must guide and encourage the students to push themselves forward.

(f) Do you have clinical education as a subject ?If not, do you think it should be introduced ?

Yes. It should be introduced in every law college.

(g). Does the college publish any journal inviting articles from the students ?(Give details)

Yes.

(h).What is the system in vogue for Practical Training of students ? (Give details )

The most popular system is that of moot courts and internships in legal aid cells etc.

(i).Is the college students/staff involve themselves in legal aid/lok adalats or other activities ?(Give details)

Yes, the legal aid clinic organized on legal aid to create awareness.

(j).What are the problems perceived in imparting practical training/ education ?

The most challenging task is to sensitise the students towards the currents problems.

(k) Any improvement you want to suggest in the prevailing system of clinical legal education ?

Practical training should be made compulsory and moot courts should be organized on socially relevant issues.

skills in them.

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ANALYSIS

The study covers respondents from all walks of legal profession like lawyers, students and teachers. It is remarkable to note that they all have a basic idea of the clinical legal education. Another interesting thing to note is that the lawyers who are practicing since a decade didn’t received any formal training etc. during their colleges. This situation indicates that practical training has become more important in today’s scenario as compared to past. Moreover, all the students are of the view that colleges should be more responsible and give broad opportunities to the students to develop and sharpen their skills through moot courts and mock trials and internships.

177 All of them agree to the fact that practical training develops and enhances professional skills and prepare the students to face new challenges and finding their workable solutions. It is appreciable to note what has Advocate Imtiaz Ahmed said that weaker students should also come forward and participate in different training programmes. Teachers and faculty have a crucial role to play in this regard. Moreover, all of them agree that colloges and teachers play a very crucial role in dissemination of practical training thus, developing professional skills.

CONCLUSION The Constitution of India in its Preamble and the Fundamental Principles of State Policy speaks about social justice as its key pillar. But due to vicious circle of poverty, even after so many years of independence these goals are yet to be achieved. High ideals of our liberation struggle as reflected in the Constitution will continue to remain mere promises if we fail to ensure that every individual citizen has access to justice and ~ccess to the law just law, justly and equitably administered. In the background of constitutional commitment and the societai needs, legal education must embrace a broad and comprehensive concept. Legal education, therefore, should be rendered with a view to create an environment and ability for reshaping the structure of the society for the purpose of achieving national goals.

178 The law and legal system are being called upon to advance arguments and develop tools to compel the state to abide by the social justice mandate of the Constitution and to promote the human rights of the under-privileged section of society. The responsibilities of legal education in a globalizing world make it necessary periodically. to revisit law school programmes, to allow for necessary reforms and improvements. Law schools must prepare them to meet these challenges by providing not only a sound substantive education, but also the necessary skills and experience. By adapting curriculum to alert students to the international contexts, offering clinics and externships, promoting student and emphasizing ethical foundations, today's legal education will fulfil its obligation to train lawyers to serve their clients and society. In conclusion, it may be mentioned that legal educators in India have sought to balance the contributions of traditional pre-independence; British influenced legal education with those from more recent reforms developed locally or imported from other countries, particularly the United States. The infrastructure of legal education in India is large and diverse: students may study law at a university law faculty, where most law teachers teach full time and the orientation trends to be more academic, or at a university affiliated law college, where the orientation is more practical and most faculty teaches part- time. Although most instruction are carried out in a traditional lecture format, clinical legal education has made some inroads in India, but not yet on a widespread scale. India is now in the process of implementing new reforms in the structure of legal education whereby an optional under-graduate five year programme, with mandatory skills training in the fifty year must emerge as the national standard. Besides this, recent studies have shown that clients from linguistic and cultural minorities receive a lower quantity of justice in the court system. It is a pity that even after many years of independence, judgements like on Mandal commission reports have to be given, whereby the plight of the minority class have not changed much. We need to train the law students to work with multi-cultural clients more effectively. For this, we need to do away with the traditional way of teaching and presenting cases and require variety of new techniques to stimulate thought and conversation. Clinical legal education is the ideal way to inculcate such knowledge amongst the law students. Legal education is both professional and liberal. As professional education, it needs to impart professional skills; as liberal education, it should aim at providing value- and social justice-oriented education. In other words, legal education’s ultimate mission is to transform law students into socially sensitive, justice-oriented legal professionals. Although the broad aim of legal education is social justice, its particular aim differs from country to country and society to society. The particular social justice aim of Indian legal education is to provide a fair, effective, competent, and accessible legal system to the citizens. As discussed above, India’s broadly defined concept of legal aid provides Indian law schools a unique opportunity to achieve the social justice mission of legal education. However, this noble mission has remained a distant dream. The euphoria of the 1960s and 1970s about the ideal role of law schools in providing legal aid had withered away by the

179 1980s. Various efforts to revive this ideal and to reform legal education have not succeeded in arresting the decline of standards in legal education. These developments finally led the Bar Council of India to introduce clinical legal education as a mandatory component in the law school curriculum by way of four mandatory Practical Papers. The Law Commission of India’s recent recommendations on clinical legal education drew on the American Bar Association’s MacCrate Report. Although the MacCrate Report can be used as a model to identify fundamental professional values and skills suitable to Indian conditions (a tentative listing of which is presented in this article) a full Indian MacCratestyle report is needed to identify those appropriate to the Indian legal profession – and, by extension, to a reformed curriculum and methodology for legal education. Preparing an Indian MacCrate-style report will not be a simple task. In the meantime, law schools can use the opportunities created by the Bar Council’s four mandatory Practical Papers to enhance clinical legal education and to accomplish legal education’s social justice mission to a substantial degree. As demonstrated in Part IV, the opportunities exist in India already to achieve the broadest educational goals of the papers through a social justice-based clinical curriculum. Certain projects already undertaken at law schools, such as introducing lok adalats into the curriculum and setting up legal aid cells similar to those operated by the V. M. Salgaocar College of Law, are relatively simple and have the potential of addressing virtually all of the values and skills that are advocated in this project. But more is needed to fully institutionalize social justice-based clinical legal education – and for Indian society to obtain the benefits of a reformed legal profession. Law schools need financial and intellectual support from the bench, the bar, and the government. It is true that law schools are the starting point for establishing a legal profession that provides social justice, but the bench and the bar also have an obligation to shoulder this responsibility. The bench can participate by allowing internships and clerkships; the bar by involving practicing lawyers to teach and monitor clinical programs; and the government by amending The Advocates Act in 1961 to allow students and faculty to represent clients in pro bono cases. Each of these is an immediate concern for the successful implementation of clinical legal education’s mission of social justice. In addition, there must be a consensus, consistent with the recent reforms and pronouncements of the Bar Council and the Law Commission of India, to identify the fundamental values of the legal profession together with skills necessary to achieve those values. Only then can clinical legal education focus fully on the broader goal of teaching social justice and providing socially relevant learning experiences. While clinical professors share many common goals, there are many, many differences in style, approach, subject matter, and method among clinical law professors. These differences should be welcomed. In fact, many clinical professors continue to vary their own teaching styles depending upon their interests and needs and those of their students. It is important for those reviewing clinical teaching to understand the methods used by clinical teachers and to embrace a wide range of different approaches while helping those professors achieve a high level of teaching quality.

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SUGGESTIONS Some of the main lacunae in the legal education in India are as follows: 1. There are a large number of institutions imparting legal education and in most of them attendance of the students is very poor. 2. Many Law Colleges/Universities do not have adequate teaching faculty. 3. Perhaps a large number of teachers believe that like any other profession teaching is also a profession as a result of which that zeal which a teacher must possess is absent. 4. It is often said that law in books and law in practice are quite different from each other. This in effect means that teachers are not equipping the students adequately to make them confident enough to face the court straight away after passing out. 5. Supervision of Law Colleges by the Bar council Universities is utterly deficient. 6. Examination system at this point of time has almost become useless.

The following suggestion can be considered for improving the standard of legal educations: 1.Attendance of the students in the classrooms must be strictly ensured: The Universities Colleges State Bar Councils must ensure this and they should not fail in their duty. In no case should a student be allowed to take the examination if he has fallen short of a minimum o£15% attendance in each subject, 2. A proper student teacher ratio should be fixed first, and wherever the same is not followed, examination may not be conducted. The Universities Bar Councils must supervise strictly such matters and they should be made accountable so That they discharge their duty properly 3. All law teachers must be made to understand that teaching is not profession but a mission. Teachers are the backbone of any society. and they must be made to understand that If they lack the zeal of a teacher, then they don't fulfill an essential quality of a teacher. Such teachers even if they .have the essential educational qualification to be appointed as Assistant Professors, should not be so recruited. 4. In most of the, Law Colleges in India, the students have no access to courts, Neither are, regular visits by them to courts ensured nor are they exposed to Moot Courts. Consequently, law in books and law in practice remain different for them. This is a huge gap which must be filled up forthwith. A student must be' thoroughly 'taught as to how a witness should be examined and cross-¬examined. Examination and cross-examination of a witness should be made a full separate paper and adequate reading material and practical

181 training in the same must ,be given to the students. A large number of law students do not enjoy their studies because they know that during their stay in the Law College they will not be able to learn as much as they should. This aspect needs to be tackled forth with. Similarly, some basic laws like Information Technology, Business, Negotiable Instruments, Banking, Insurance, Stamps and Registration must be made essential components in the graduate curriculum in law 5. Many Law Colleges are utterly inadequately equipped to impart legal education. They are especially handicapped with respect to the practical training to be imparted to students. Many of such law colleges are situated at small towns where only a few magistrate courts exist. The students of such law collages suffer as there are hardly any court visits organized for them. If at all they are taken to the Courts to familiarize themselves with courts procedure etc. they hardly learn any thing, as they are able to attend only these small courts. There 'are hardly any moot courts organized for them as the infrastructural facilities for them are almost non-existent. The Universities and State Bar Councils should be made to see reason in such cases. Their supervision should be at par with the Medical Council of India, which supervises the medical colleges in the country. An institution which is not able to provide adequate practical knowledge of law to its students has no right to remain in existence and must be closed down. Many of such institutions may be owned by people highly connected but they cannot be allowed to play with the lives of students. 6. Examination system in the law colleges have almost become rotten. Most Universities in India follow the orthodox pattern in which examinees are required to answer five questions out of ten. The nature of the questions is almost same as they were more than half a century ago. This needs to be drastically corrected. The question paper could be a combination of partly purely objective type multiple choice questions, partly short answer questions, partly medium answer questions and partly long answer questions. This would ensure that a student would succeed only when he studies hard and true. Reputation of a degree depends to a large extent on its examination pattern. The general public -respects such degrees/examination and the reputation of the degree/examination automatically goes up. For instance, the IIT entrance examination or CA degree examination enjoy a very high reputation everywhere. Can we all make the' LL.B degree at par with them? The society expects that together we must make an effort into that direction.

It is further suggested that the following measures to be taken to impart the clinical legal education in law colleges on a practical, continuous and sustainable basis: A suitable legislation be enacted by the State to make it compulsory for every law college to establish a law clinic to impart clinical legal education. •

•

The legislation should cover that every law college should adopt a Revenue division to organize legal aid programs with the help of authorities under Legal Service f\uthorities Act.

182 •

The four practical training papers such as Moot-Court, Drafting and . Pleading, Professional Ethics and Legal Aid should be attached to the law clinics of the college.

•

A, full time professor should be entrusted with the duties of over all supervision of the clinical legal education.

•

The law clinics should have sufficient number of clinicians from the teaching faculty and practicing advocates to assist the professor and to execute the various programs of clinical legal education.

•

Too many protocols and the existing formal procedure in organizing the outreach programs for the welfare of . the poor and indigent litigants should be avoided.

•

The State Government, State Barcouncil and the Governing Body of the respective law colleges should workout a formula to share the expenditure in organizing and conducting the legal aid clinics and outreach programs.

It is further, suggested that clinical legal education should be client-centered, servicecentered, socially relevant and community-centered with emphasis on value based education. Then only, desired goals and objectives will be achieved.

TABLE OF CASES

1. In Center for Legal Research v. State of Kerala, AIR 1986 SC 1322

1. Nandini satpathy v P.L.Dani AIR 1978 SC 1025,

2. Haskot v State of Maharastra.AIR 1978 SC 1548,

3. Hussainara khatoor. (IV) v. Home Secretary, State of Bihar, (1980)

183 4.

Khatri v. Stale of Bihar and others, AIR 1981 SC 829,

5. Suk Das v union territory of Arunachal pradesh, AIR 1986 SC 991.

6. State Bank of India v N.S.Money. AIR1996SC1.

7. V Sudheer v. Bar Council of India 13(1999) 3.SCC 176

8. Salem Advocates Bar Association v Union of India AIR 2003 SC 189,

9. Premchand Jain vs. R.K. Chhabra AIR 1984 S.C. 981

10. Osmania University Teachers Association vs. State of AP AIR 1987 S.C. 2034

11. University of Delhi vs. Raj Singh 1994 Suppl (3) SCC 516

12. Cement vs. State of TN 1990(1) SCC 12

13. Synthetics & Chemicals Ltd. vs. State of UP 1990(1) SCC 109

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TABLE OF CONTENTS

1) Introduction 2) What is a legal clinic ? 3) Tyfes of legal clinics 4) What is clinical legal education? 5) History of clinical legal education 6) Forms of clinical legal education t andypes and functions of legal education 7) Goals of clinical legal education programs 8) Educational objectives of clinical legal education 9) Benefits of clinical legal education 10) Significance of Legal Education

185 11) Methodology of clinical legal education teaching 12) Establishing a clinical legal education program 13) Institutionalizing a Social Justice Mission for Clinical Legal Education: Cross-National Currents from India and the United State 14) Constituional and legal status of clinical legal education 15) The bar council of india rules (under the advocates act 1961) 16) The journey of legal education, from the crossroads to modernization 17) Implementing the bar council’s mandatory practical papers though a social justice based clinical curriculum 89-96 18) Legal education reform and law school-based legal aid clinics in India: laying the groundwork for social justice-based clinical legal education 19) 184th law commission report 20) Relevancy of clinical legal education in the legal education in india 21) Current efforts in india to reform legal education and the legal profession: adapting the maccrate report to meet india’s needs 22) Clinical legal education and clinical law teachers 23) Clinical legal education and the role of law students 24) Role of clinical legal education in increasing acess to justice 25) Case studies and analysis 26) Quessionnaire 27) Conlusion 28) Suggestions 29) Resources

CLINICAL COURSE – I

ASSIGNMENT ON

HISTORY OF CLINICAL LEGAL EDUCATION

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SUBMITTED BY

ZAINAB FATIMA ROLL NO. 54 4RTH YEAR (7 TH SEMESTER) B.A. LLB (HONS.) 2009

RESEARCH METHODOLOGY

The focus of the present work is to describe the 'History Of Clinical Legal Education'. The present research will concentrate on the concept of Clinical Legal Education; Objectives, benefits, Significance, Advantages, Forms of Legal Clinics,relevancy, role of students and

187 teachers in clinical legal education, implemtation of various recommendations of law commission and Bar Council, methodology etc. . Keeping in view the nature of the problem analytical method has been adopted. In accordance with this method it will be a combination of both Doctrinal and Empirical research, although more of a Doctrinal (non- empirical) research. An attempt has been made to study the related statutes, textbooks, published articles, journals, internet data etc. While analyzing specific issues, an attempt has been made with a view to interpret the existing data.