BondUniversity

Community Engagement Forum

21-22 November 2008

Student experiential learning in a social justice context-the way forward

John Corker –Director, National Pro Bono Resource Centre

Structured or coordinated pro bono is a relatively recent phenomenon in the Australian legal profession. In 1994 the Access to Justice Advisory Committee chaired by Justice Ronald Sackville reported to the Commonwealth Attorney-General on ways to improve access to justice and make the legal system fairer, more efficient and more effective, but the report contains no mention of the role of pro bono legal services[1].

This is not to say that lawyers weren’t providing pro bono legal services[2]. There just wasn’t structures and coordinationto support the delivery of these services.

In 1994the Public Interest Law Clearing House (VIC)and the NSW Bar Legal Assistance Referral Scheme were established.

Another defining point in the development of organised pro bono legal work in Australia was the appointment of the first pro bono coordinatorat a law firm in 1996[3]. The first national pro bono conference was subsequently held in August 2000,which led to the Commonwealth Attorney-General announcing in October 2000[4] that the Government wanted to help maximize the benefits obtained from the profession’s efforts and that a National Pro Bono Task Force (“Task Force”) would be established. The Task Force was required to investigate how to promote pro bono, best practice resources and quality assistance guidelines and mechanisms and report on ‘priorities and plans for the implementation of key projects’[5]. A key recommendation of the Task Force[6] was the establishment of the National Pro Bono Resource Centre (“the Centre”) which commenced operation at UNSW in August 2002.

Structured pro bono in Australia has come a long way in a short time. There are currently 28 law firm pro bono coordinators of which four are full-time pro bono partners of their firm. Every State and Territory except Tasmania and South Australia has a pro bono clearing house and the Victorian[7] and Commonwealth[8] governments have in place formal regulatory schemes to encourage pro bono from the legal profession. National surveys conducted by the Centre in 2007 and 2008 found that about $250 million of work was undertaken on a pro bono basis by Australian solicitors in 2007[9] with the 22 of the 25 largest law firms between them carrying out about $50m worth of pro bono legal work in 2007/2008[10].

My main message is that what has made structured legal pro bono a success in the profession is likely toalso make successful the expansion of experiential law student learning in a social justice context. Some key elementsof this are increased structure and coordination, increased partnerships between community organisations and lawyers, actively building the pro bono culture and lateral thinking about therange of opportunities.

History of student service learning in Australia.

In identifying the ways forward for service learning for law students, it is important to acknowledge and learn from history, particularly from the clinical legal education movement in Australia.

Growing out of the Community Legal Centre (‘CLC’) movement in Victoriathe first clinics were established through MonashUniversity (with Springvale CLC from 1971-1973) and LatrobeUniversity(with West Heidleberg CLC in 1975) and in NSW in the early 1980s (UNSW with Kingsford Legal Centre in 1981).

As identified in the Pearce Report[11], ‘second wave’ law schools like UNSW and Monash were established in conscious ‘opposition’ to their more conservative predecessors (Sydney and Melbourne respectively), choosing to focus more on quality and innovation in teaching, emphasizing law reform and social justice, and establishing the first clinical legal programs in Australia[12].

The Task Force in 2001 recommended that[13]:

Australian law schools should be encouraged to support programs that (a) highlight the legal profession’s service ideal and promote a pro bono legal culture, and (b) enable students to acquire ‘high order professional skills and a deep appreciation of ethical standards and professional responsibility[14].

This would include providing all law students with opportunities for internships/outreach programs with a pro bono focus; opportunities to undertake clinical experience, clinical components within the academic curriculum, and stand alone electives such as “Public Interest Advocacy’; and opportunities for reflection upon and critical analysis of ethical matters (including pro bono) in the classroom (emphasis added).

The survey of Australian law schools conducted in January 2001 attached to the Task Force Report indicated that very few Australian law schools had a considered or coherent policy in relation to developing a pro bono ethos in law students – although there were many scattered courses and programs[15].

The Task Force also suggested that the Council of Australian Law Deans (CALD) should review and report to the National Pro Bono Resource Centre regarding policies and institutional commitment to clinical and pro bono placement programs among member law schools and that CALD should consider the development of national policy about whether at least one such program should be a compulsory part of the curriculum for all law students[16]. As Professor David Weisbrot noted in 2004[17], this is still a debate we need to have in Australia.

In 2004, 16 of the 28 university law schools organised or facilitated pro bono or other volunteering opportunities for their students and 23 of the 28 universities had some type of clinical program operating, many in conjunction with a CLC[18]. However CALD had not developed a national policy and there was little evidence in most law schools of a coherent policy in relation to developing a pro bono ethos in law students[19].

Clinical Legal Education and Student Pro Bono: Different but Complementary

It is important to recognise the distinction between a clinical program and a pro bono program.

As the Association of American Law Schools noted:

The principle goal of most clinical experience is to teach students lawyering skills and sensitivity to ethical issues through structured practice experience and opportunities to think about and analyse those experiences. By contrast, the most important single function of pro bono projects is to open student’s eyes to the ethical responsibility of lawyers to contribute their services.[20]

In many Australian law schools clinical legal education programs take place in a community service setting and have been deliberately established with a view to engendering a pro bono ethos in the participating students.

As an experienced clinical teacher and supervisor put it in 2003, “Clinic in Australia has traditionally had both educational and service goals. I would describe the educational goal as multi-faceted, that is to:

  • through the practice of law to introduce law students to the ways in which legal rules and processes (law/ the legal system) impact upon ordinary people.
  • encourage students to reflect upon their experience of the law in practice and as part of this to critically analyse the social and legal impact (the justice) of existing legal rules and procedures.
  • guide students to consider alternatives to the existing legal rules and procedures.
  • foster the acquisition of practical legal skills.

The service goal is I think one of community service. That is the provision of legal services to poor and disadvantaged people in the community[21].”

In the same address Judith Dixon also argued that, ‘the only legitimate purpose for the continuance of clinical legal education programs in Australian law schools is the integration of law and justice into the legal education curriculum. The role of clinics in legal education therefore is to be the means by which students and academics make the link between law and justice in practice.’

It has been suggested that the features of a clinical program that are most likely to impart the pro bono ethos are:[22]

  • the presence of a real client in the student’s activities;
  • a focus on ethics and professionalism, social needs and the lawyer’s role in society, rather than the development of legal skills competency; and
  • emphasis on community service to people with legal need but without the resources to address the need to a sufficient degree or at all.

provided that these activities are coupled with supervision by a lawyer/teacher and the student has an opportunity to reflect on and discuss issues related to the work they have done[23].

Judith Wegner (one author of the Carnegie Report[24]) said in a presentation at US Equal Justice Conference 2008

•Pro bono is a crucible for improving legal education and the legal profession;

•It has potential for galvanizing other players (faculty, administrators, alumni, leaders); but

•We must be beware of balkanization and competition and focus on integration and collaboration.

These messages apply equally in Australia.

Clinical legal education and student pro bono activity are vital components of a comprehensive education at law school. Both should exist in all law schools in Australia. It is important that they be managed as complementary activities, occurring in close co-operation with each other and integrated into the law school culture. As noted earlier, a number of clinical programs in Australia were first established as voluntary pro bono community service activities.

Clinical programs are often best practice models for students but all have experienced the challenge of continued funding under a University sector that has been itself pressured financially. Lack of funding is usually raised as the reason why Universities cannot expand the range of opportunities for students but the debate has to move beyond this standard response. The trial of the Pro Bono Students Australia (“PBSA”) program at the University of Western Sydney we heard about earlier today shows that a lot can be done on a small budget.

New factors at play

There are now a number of new factors at play. One is an increased demand from students for experiential learning. The launch of a PBSA program at BondUniversitytoday is testament to this demand.

Second is the increased realisation of the importance of experiential learning in establishing an ethical framework and professional values in students and the limitations of the case-dialogue method of teaching.

The influential Carnegie Foundation for the Advancement of Teaching in the US put out a report last year called ‘Educating Lawyers, Preparation for the Profession of Law’[25]. A key observation was that the case-dialogue method of teaching has valuable strengths but also unintended consequences and the report also identified some “missing educational pieces” being:

•Apprenticeship of ‘professional identity and values’

•Apprenticeship of practice and skills

•Professional formation

Students need a dynamic curriculum that moves them back and forth between understanding and enactment, between experience and analysis. Law Schools face an increasingly urgent need to bridge the gap between analytical and practical knowledge, and a demand for more robust professional integrity.[26]

In her address at the second National Access to Justice and Pro Bono conferenceon 14 November 2008, Professor Carolyn Sappideen from University of Western Sydney, and director of a Pro Bono Students Australia project, said “if law students get involved in a program like PBSA early on in their studies, they will commit to the idea that pro bono is a part of being a lawyer”.

This is also evidenced by a survey undertaken by Kingsford Legal Centre of its volunteer solicitor’s alumni[27]. 40 of the 52 respondents felt that the course changed the way they saw the law, particularly in relation to social change, delivering ‘justice’ and reaching out to disadvantaged people. Interestingly59% of all solicitor volunteers had been past students at UNSW, where Kingsford Legal Centre is an integral part of a law faculty clinical legal education program. 46% of respondents had participated in pro bono work since leaving University.

LawSchoolSupport

AsProfessor Deborah L. Rhode from StanfordUniversityfound in her research in 2005 on US Law School Pro Bono programs:[28]

whatever approach is chosen (mandatory or voluntary) , it should attempt to provide positive public interest experiences and ensure that they are available to the maximum number of students. Moreover, the value of pro bono service needs to be reflected and reinforced throughout the law school experience in both curricular coverage and resource priorities

The issue is about commitment from our law schools and championing of a culture.

Two issues are immediately able to be identified from this year’s Final Report to the Council of Australian Law Deans on Standards for Australian Law Schools.

At para 4.2.4 the report states:

there has been no real move for a requirement for Australian law schools that clinical legal education be part of every student’s law school experience. If there were to be such a requirement, some law schools would have difficulty in resourcing such a development. Others may consider that it did not reflect their approach to legal education.

This statement is consistent with the Centre’s experience in seeking to have CALD adopt a policy that embraces the values of experiential learning in a social justice context. Despite four papers prepared by or in conjunction with the Centre all tabled and considered at CALD meetings since April 2004 (the last two including a draft policy statement for Dean’s consideration), and strong support for adopting such a policy from a number of the Deans, no such policy has been adopted. Cost, and not wanting to fetter a particular University’s approach, have been given as reasons. What is disappointing is a seeming lack of commitment to a vision that on the evidence would only seem to strengthen legal education, and possibly lead to additional funding from the Commonwealth government[29].

The first ever Standards for Australian Law Schools adopted this year in Marchmight have been a vehicle for adopting a progressive policy. However, as the Final Report to CALD admits, the standards are being developed for defensive reasons. In justifying why the Standards are being prepared as a self-regulatory code, the report says “A proposal to establish a minimum standard for Australian law schools is seen as inevitable”[30] and “In respect of countries, such as the United States, where there is already a system in place to ensure standards are maintained, it will most probably be necessary to show that Australia also has a robust system for ensuring minimum standards, possibly expressed in a system of accreditation for law schools.”

In this regard it is worth noting Standard 302(b)(2) of the American Bar Association Standards for the Approval of Law Schools which provides that:

A law school shall offer substantial opportunities for … student participation in pro bono activities …”[31]

This Standard changed from being an aspirational to a mandatory standard in February 2005.

Contrast this with para 2.3.3 of the Standards for Australian law schoolswhich states:

the curriculum, seeks to develop knowledge and understanding of … the principles of ethical conduct and the role and responsibility of lawyers, including, for example, their pro bono obligations[32].

The Standard falls short of any mention of how this might be achieved. There is no positive statement in the Australian Standards about the value of experiential learning.

Para 9.6.1of the Standards makes a generalisation that “the law school seeks to engage with the legal profession and the legal sector generally”[33]but the opportunity is lost to say that a law school should seek out opportunities for its students to work alongside lawyers.

Increased Student Demand

Nevertheless students are keen if not desperate for practical legal experience – This semester at UNSW the centre received over 70 applications for 30 places in the UNSW Public Interest Internship Program which places students in external agencies for a semester with reflective notes and academic supervision. Demand for student places at Kingsford Legal Centre continues to grow.

Students are empowering themselves. On 28-30 November 2008 students will hold the Breaking Down Boundaries conference at the SanctaSophiaCollege at the University of Sydney. The Facebook site for the conference shows 489 student members and the conference is sold out.

At the second National Access to Justice and Pro Bono Conference held in Sydneyfrom 13-15 November 2008, law students from 15 universities around Australia attended and participated in debates about how to work together better to deliver access to justice for disadvantaged and marginalized people in Australia. In a legal education workshop, students, academics and community sector representatives discussed the ways in which to improve practical learning opportunities for students. The idea of mandatory community service as a part of a law degree was discussed as a way of introducing students to practical experience in the social justice context.

These students have called for the establishment of a national pro bono student body for law students, with the aim to create, promote, expand and facilitate pro bono student projects. Since the students held a meeting last Saturday, two Facebook groups have already been created, Australian Law Students for a National Pro Bono Program, and Australian Law Students for Pro Bono. There is a Facebook group for Pro Bono Students Australia.