CLINICAL LEGAL EDUCATION AND ETHICS OF PROFESSION

CLINICAL LEGAL EDUCATION, ETHICS OF THE PROFESSION

                                                                                    * Prof.(Dr.) Jayadev Pati

Law is not a brooding omnipresence in the sky, but a flexible instrument of social order. Law influences every human activity in a civilized society. Almost all the nations are to give importance on value based pragmatic legal education which would ensure and foster economic development and to provide social justice to the people. The legal fraternity of our globe is to revamp their methodology and curriculum to make their legal education humanistic, modern, contemporary and socially relevant. In the era of science and technology, law is being studied as a branch of science. It is to be tested through a method by which it is either proved or disproved.

From the dawn of human civilization the desire of the society is peace and prosperity. A constant effort is being taken to check the brutal exploitation of man by man and also to improve their condition. The present legal educations in most of the countries are based on western theories of right and justice. These countries are to maintain the scientific temper, to protect and preserve their culture, heritage, custom and historical conditions. The basic philosophies and ideologies for creation and maintenance of just society are to develop their legal science for justice and fair play. The modern legal education need to be humanistic so as to enhance and enrich human sensibility. A pragmatic value oriented legal education is to train their law students to develop their skill and competence. These students are to identify the social problems and find out solution to eradicate corruption, injustice, nepotism and poverty from the global society.

·         Professor-cum-Principal, Madhusudan Law College, (Utkal University),

Cuttack – 753003, Orissa, India.

schools of the world were following British pattern of legal education. During the last quarter of nineteenth century a changed methodology was introduced by Harvard Law School. The leading exponent was Christopher Langdell. The traditional legal education was confined to class room teaching with the aid of text books, journals, periodicals and reported cases. Now importance is given to groom the students for the need of legal profession. This method of study is more theoretical rather than practical. The age old practice of theoretical study basing on non-clinical and para-clinical methods in the field of legal education is not complete, if the law students are not imparted training in clinical legal education.

The clinical method of teaching is being imparted in the field of medical education. A student is being trained to acquire the skill, knowledge and technique from interaction with the patients, various investigations and laboratory examination reports so that he would develop the ability to administer appropriate treatment.    In this process the treating physician makes diagnosis of the diseases and prescribes remedy for the malady. All the branches of medical science are classified in to three categories; (i) non-clinical, (ii) para-clinical and (iii) clinical. The clinical method is to be studied with the aid and advice of other two methods. For example – the subjects like Anatomy and Physiology are non-clinical subjects. A medical student is to acquire basic knowledge on different parts of the body, position and functions of organs and systems. The subjects such as Pharmacology, Microbiology and Pathology are known as para-clinical, which provides a feedback to the physicians for proper diagnosis and management of treatment for patients. Gynecology, Medicine and surgery etc. are known as clinical subjects. The students are required to be trained so as to provide direct treatment for the diseases.

The clinical legal education is the need of the hour. It is not simply a pedagogical method but the philosophy about the role of lawyers in the society. It is a liberal, radical and reformative method having the programmes in the process of development. This method keeps the legal system as a vehicle for change. This philosophy builds up faith in the legal system as a means of reform. The clinical legal education programmes provide a context for testing legal theories. This method sensitizes the law students towards ethical and moral responsibilities to perform pro bono public work so that they can provide services to the communities through public interest lawyering.

They are to be trained through Lokadalat, Legal aid clinic, Legal literacy project, direct representation of clients before selected courts, tribunals and agencies. Other activities, such as legislative drafting and community participation can be chosen as well. The challenges are to select the appropriate field work experiences from all those common problems and case planning exercises based on mock case files.

The same method is to be applied for the training of law students. But it is difficult to classify all the law subjects in the above mentioned categories. They can be broadly classified into (i) Non-clinical and (ii) Clinical subjects. The Para-clinical subject such as inquiry, investigation, medical report and expert opinions are intertwined with clinical subjects. The objective of clinical legal education is to develop the perception, the attitudes, the responsibility and the skills to become a lawyer after the completion of the course from the law schools. They are being given the training to acquire knowledge in the non-clinical subjects like language, history, economics, political science, sociology and philosophy. This would motivate a student of law to undertake the responsibility to face the complicated problems and to analyze the fact with the help of the study in literature, arts, science, economics, commerce and other relevant subjects. The non-clinical legal education needs a systematic flow of knowledge and functional skill.

The curriculum for clinical legal education has been adopted in such a manner as to meet the challenges of newly emerging areas of Intellectual Property Rights, Environmental Protection, International Trade, Taxation Law, Liberalization of Privatization of Corporate Economy, Labour Laws, conducive to development of Trade and Industry. The legal education has been emphasizing the need to run the public sector undertaking on sound business practices. The curriculum is focusing on the problems of the common masses. It is sensitizing the society to identify its problems and brings social and economic justice. Special emphasize is being given on research, relating to protecting rights of people and national interest in the area of environmental protection, bio-diversity, trade marks, patents and other emerging branches of law and agreement with World Trade Organization.

Modern Law Schools are to provide education on the topics like surrogate mother, where a student needs training on competing rights of the mother and foetus along with their psycho-social relationship and contractual obligation with emotional attachment. Conflicting interests between – right to life and right to die, mercy killing, cyber crime, online defamation. The other topics are DNA test for determination of legitimacy, transplantation of human organs and ethics, sex change surgery and trans-sexualism, copy rights and the right of the author and plant breeder right etc.

The clinical legal education started in the United Kingdom in the year 1970. The operation of legal clinic started at University of Kent. The Queen’s University Belfort provides a model for working with a number of advice centres. The Warwick University has adopted simulated clinical techniques. The Columbia University’s professional law course uses simulated clinical methods to develop a critical approach to professional ethics. Similar developments have taken place in Australia, Canada, India, Malaysia, South Africa and south pacific. In Canada and Australia the Government have recognized the value of clinical legal education. In India the clinical legal education has been introduced in the courses of studies of all the National Law Universities and Law Colleges from the academic session, 1995-1996. This clinical course is classified in to two categories; (a) Foundation clinical course and (b) Optional clinical course. The foundation clinical course is compulsory for all the students of law where as the students are to opt for any two optional clinical courses as per the courses of studies of the University. The foundation clinical course is to provide training on client counseling, client interview, mediation, negotiation and trial advocacy. They are also to be trained in alternative dispute resolution mechanism and case planning. In the optional clinical legal education a student has to visit the courts and other dispute resolution bodies. In the U.S.A. the clinical methods are wide spread and better established.

Now every nation is giving importance on the clinical legal education in order to groom their future lawyers, the law makers, the executors, law officers, judges and law teachers to acquire knowledge through a scientific method keeping  pace with the ethics and philosophy of the society. The objective of the clinical education is radical, reformative and dynamic.

The following are the basic features of the clinical legal education.

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

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

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

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

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

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

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

Clinical legal education requires students to take an active part in the learning process. They assume a degree of control over their own education and they see law in its real-life context. Learning by doing exposes students to real or realistic settings in which both basic concepts and substantive rules can be studied. At the same time, students may address the practical, ethical and policy issues surrounding a given problem. The clinical legal education programme is providing a vehicle for the introduction to an enhancement of skills relevant to the study and practice of law. Students taking clinical courses are encouraged, as an explicit educational objective, to reflect critically on the content of the experience and to redefine their needs and strategies in consequence.

Clinical education has a broad range of impact upon law students. The objectives of clinical work fall basically into five areas –

a)     Legal skills development,

b)     System – operation knowledge,

c)      Growth of professional responsibility,

d)     Self-knowledge,

e)     Human – relations understanding.

(a)Legal Skills Development :

            Training is necessary for law students to develop skills in writing and legal research. In the recent years the law schools are giving much emphasis on legal writing, preparation of memorandums, deeds, documents, appellate briefs, analysis of problems and pleadings. The underlying rationale behind these activities is the inculcation of good research and also to develop writing skill during the early career of a law student. This foundation would help him to be proficient in any branch of law.

(b)System – Operation Knowledge :

            The law students obtain the skill development benefits of actual participation as well as they are prompted to understand critically and systematically the mechanism of operation from the institution in which they are participating. Institutional – exposure enables the students to evaluate more carefully about the recent literature concerning in the field of legal institution. All the law schools are to develop a system to enable the students to acquire knowledge through first hand observation.

 (c )Growth of professional Responsibility:

            This course includes analysis of lawyer’s responsibilities in the arena of social problem. But the courses on legal education are incomplete without knowledge on ethical issues. Some times the students complain of non-relevance of the course. But new insights can be created through clinical programme where students are engaged in actual cases rather than the dramatic learning experience of classrooms. To find out a solution to a problem forces the student to choose among values, including his emotional consideration.

(d)Self-knowledge:

            Learning about one’s self is a continuous process. From professional point of view, self-knowledge is important in understanding one’s abilities and limitations. In the clinical programme, the students are encouraged to analyze, probe and evaluate their performance in the real life they encounter. Students can confront and accept, modify or reject or at least recognize the existence of values that will guide their professional lives and reactions to people and problems.

(e)Human-Relations Understanding :

            The practice of law can not be accomplished in isolation from the interaction of the people. Although the practitioner knows that the client is a significant factor in any legal problem. The students are to be trained in order to develop their zeal for logical purity and not to ignore the human aspect of legal problems. Clinical legal education programme provides an opportunity to prescribe remedy for this omission. Developing keen lawyer – client skills concomitantly results in gaining an understanding of how human beings are inter-related. Similarly, acquiring knowledge about one’s self in the context of law practices, involves learning about human relations.

Clinical legal education may be simply described as learning law through application, practice and reflection. This concept applied into a programme of educational experience varies from state to state and school to school. It is quite different from traditional legal education. The lecture-seminar method so common in education of law students is, at one level, capable of satisfying the learning-by-doing definition and provides the form of delivery which actively involves the student. The reality is, however, that lectures are predominantly content and assessment led; they consist too often of students being given information. It is unusual for lectures to meet any of the clinical demands. They rarely involve students in the real or realistic practice of the law. A well-structured lecture and seminar programme, using group work, presentations and case studies, and achieving a higher level of student interaction and participation, is of course of value as a learning experience. However, unless it goes beyond the passive involvement of students, a learning opportunity can be missed. Law schools need an integrated student-centred approach through the following types of clinics.

(a)              In house real client clinics, which would provide practical knowledge to the student. They are to be associated with advocates to acquire practical experience.

(b)              Out house real client clinics, where the students are to visit different places, particularly the village and slum areas where problems are to be identified and the remedial measures can be provided to the illiterate and ignorant inhabitants.

(c)               Simulation clinics, which would help in educating the students to acquire knowledge from the similar cases which have been decided in the courts of law.

The objectives of above mentioned clinics are to provide exposures to students of law in their practice. They are to analyse case management process of the emerging problems. They  need to reflect on the experience and the process and result of that reflection are central to all clinical programmes. Clinical legal education is directed towards developing the perceptions, the attitudes, the skills and the responsibilities which a lawyer is expected to assume when he completes his education from the law school.

There is a certain richness that can be brought to a clinical experience only by involving law students in real legal issues as a central element of a clinical course or programme. However, it is not enough to simply put students into a real, situation to learn. The real work of the clinical methodology is to refine the students to gain experiences in order to maximize their effectiveness, and also to supplement their clinical experiences with appropriate instructions and supervision in order to create the maximum opportunities for learning.

Law and lawyers have a great role in the society. In every society there is a wide gap between the people and the justice delivery system. The need of the hour is to attach importance on causes of the poor and down trodden.

Ethics in the legal profession refers to a system of moral principles, a sense of right and wrong and goodness and badness of action and their motive and consequences. It refers to application of ethics to legal profession. To be more specific, legal and professional ethics is the study of good and evil, right and wrong, just and unjust. Ethics in legal profession corresponds to basic human needs. It is a human trait that every individual desires to be ethical, not only in his private life but also in his professional affairs. Most of our legal professionals want to be a part of our society, in which they can command respect and be publicly proud of their profession, because they perceive their purpose and activities to be honest and beneficial to the society.

It is a multidimensional training which includes, participation in court proceeding and tribunals to develop the art of advocacy, to learn the court practice, procedural norm and to understand how legal process works. The need of the hour is to set up legal clinics in the law school premises, so as to train the students of law for practical training. They need to understand the importance and the potential utility of clinical legal education and to implement the programmes effectively and systematically.

Law protects those who protect it and destroy those who destroy it. According to  Friedman, “The aim of legal education cannot, if it is to serve a positive and useful role in modern society, be confined to teach the legal techniques and skills but to make product of law as an instrument of progress through democratic process. It would be tragic if the law were so petrified as to be unable to respond to the unending challenges of evolutionary or revolutionary changes in society.” The legal education should emphasize upon morality, honesty, self-accountancy, patriotism, self-sacrifice, fellow-filling and compassion with all the living beings. Law without morality is like a body without soul. Unless moral ethics are given due emphasis, no amount of legislation can bring peace and prosperity in the society.