Introduction
Linden Thomas
The inception of this Handbook can be traced back to the Clinical Legal Education Organisation1 conference in June 2016, where I presented an early draft of a paper in which I argued that law clinics were in a regulatory black hole.2 The paper was born out of the frustrations I experienced as a newcomer to clinical legal education (CLE), trying to navigate my way through the regulatory maze in which the rules governing the provision of pro bono services by university law clinics seemed, to me, to be hidden.
Despite CLE having gone through a period of significant and sustained growth in the preceding years,3 I had not been able to locate any accessible source of guidance setting out why it was that I was allowed to provide legal advice to members of the public on behalf of my institution, or whether there might be any restrictions on me doing so.
The information I needed to know was all in the public domain. However, I found myself having to piece it together bit by bit, drawing on a wide range of different sources in order to do so, which was both time-consuming and frustrating. It was also a little daunting, not least because I felt it would have been all too easy to be ignorant of the existence of certain legislative limitations on the type of legal services I could provide, some of which carry criminal sanctions for breach. No guidance published by the regulator at that time seemed to have been drafted with the growing number of universities acting as a forum for pro bono legal services provision in mind.
From the discussion that followed my presentation, it became clear that I was not the only person to have had this experience. Like me, many clinicians had come straight out of private practice, where someone else had had overall responsibility for compliance and had put in place the processes and procedures to be followed. With no obvious source of guidance, many of us found ourselves navigating new waters and wondering what we didn’t know that we didn’t know. I therefore offered to write a short guide, setting out what I had learnt. In response, I received an outpouring of offers from other clinicians volunteering to write about aspects of setting up, running and delivering law clinics that they had particular knowledge and experience of. Thus, the idea to pull these contributions together into this Clinical Legal Education Handbook was formed.
From its earliest stages then, the Handbook has been a wholly collaborative effort and is a testament to the generous and cooperative nature of the CLE community. The structure and contents were informed by a group of nearly 20 clinicians working in law schools the length and breadth of the country, many of whom went on to write sections for the final version.
The Handbook is intended to be a practical guide that will be of use to clinicians, whether they are new to CLE and trying to work out where and how to begin, or have been working in the field for some time and wish to develop a new project or else find themselves encountering a new challenge in an established clinic and in need of a steer as to how to respond.
There is one health warning about this book that it is incumbent upon me to set out here. One of the (many) virtues of a law clinic is that it is versatile: there are as many different models of clinic as there are clinics.4 Each one is tailored to meet the specific requirements of the environment in which it is set. A clinic’s structure and design will depend upon a multiplicity of factors, including the institution in which it is hosted, the resources it has available to it, the client need it is intended to meet and the educational objectives it proposes to realise. Consequently, there is seldom a ‘one size fits all’ approach to ensuring regulatory and legislative compliance, and so the contents of the Handbook should not be relied on as a substitute for independent legal advice where it is required.
Precisely which policy or practice ought to be introduced to any clinic will be influenced, among other things, by institutional policy, processes and attitude to risk. However, I hope the Handbook will address the abovementioned concern reported by clinicians that they ‘don’t know what they don’t know’, and that the explanations and recommendations within these pages will help you to feel more comfortable and confident in spotting potential areas of risk and making informed decisions as to whether and when you need to seek further guidance on the application of particular rules or laws in their own context.
The Handbook consists of seven parts. Part 1: Law clinics: What, why and how? puts CLE into context. It proposes an inclusive definition of CLE and offers guidance on:
• how best to make the business case for your clinic
• what to consider in order to ensure your clinic is properly funded and that the requirements of key stakeholders are realised
• the practical details that ought to be taken into account when determining how to set up a new clinic.
Part 1 also offers a comparative overview of five different live client clinics and concludes with a number of case studies, which demonstrate the breadth of clinical models available to choose from.
Part 2: Regulatory framework offers guidance on the regulatory and legislative framework which impacts on the way that clinics are established and run.5 As is inevitably the case when one writes about law and regulation, nothing stands still. At the time of writing,6 the Solicitors Regulation Authority (SRA) has released a new set of Standards and Regulations7 which will replace the 2011 SRA Handbook8 on 25 November 2019.
To the extent possible and in order to ensure that this Handbook remains a useful resource for as long as possible, the sections in Part 2 reflect the position under the incoming Standards and Regulations and the accompanying guidance that has been published to date. References to the equivalent 2011 Handbook rules are also included for completeness. Any legislative and regulatory developments, or associated guidance, released into the public domain on or after 22 August 2019 will not be reflected.
In Part 3: Assessment in clinics: Principles, practice and progress, Grimes and Rizzotto offer guidance for anyone contemplating how they might assess participation in their law clinic. They consider what is meant by assessment, why we might assess clinic work and what methods can be used to do so. They also explore the purpose and value of feedback and the role it has to play in ensuring continuous development for supervisors and students alike.
In Part 4: Research on clinical legal education, Mkwebu explores the fertile ground for research that CLE provides. In a detailed literature review, he offers an in-depth analysis of research carried out in the field to date and organises the literature on CLE into five themes:
• emotional wellbeing of students and academic staff
• reflection and assessment
• skills development and employability
• the social justice mission
• the regulatory framework.
In doing so, he presents a comprehensive yet accessible introduction for newcomers to CLE into the breadth of literature available. He also identifies gaps in the literature, which may serve as a roadmap for those clinicians – both experienced and new – seeking direction as to where to focus their own future research activity.
Part 5: Precedent documents and resources contains a bank of documents kindly shared by a number of universities and individuals, which you are welcome to adopt and tailor as required to suit your own context. The documents have been grouped into the following five categories:
• contracts and handbooks
• policies and procedures
• checklists and practice documents
• learning and teaching
• other useful resources.
Contained in Part 6: Glossary of clinical legal education networks, these are a list of networks that provide an incredibly valuable forum for sharing of good practice in relation to CLE and all that it encompasses. Events and conferences organised by such networks can offer sources of inspiration for new models of clinic, information about innovations both in method and mode of delivery, insights into the latest research and an opportunity for shared learning about good pedagogy,9 among many other things. We hope including this glossary will enable those who are new to CLE to access these networks and begin to benefit from all that they have to bestow at an early stage in their clinical careers.
I referred earlier in this introduction to that unsettling sense of not knowing what one doesn’t know, and my hope that this Handbook will go some way to remedying this for those with responsibility for running law clinics. However, there are some lessons that simply have to be learnt through experience. Indeed, isn’t that precisely what CLE is all about?
Therefore, included in the postscript to this Handbook at Part 7: ‘Things I wish I’d known before I started doing clinical legal education’ are reflections from clinicians who have been involved in CLE for some time. I hope you will enjoy reading their words of wisdom as much as I did.
Before I bring this Introduction to a close, there are a number of people to whom I wish to offer my thanks for their assistance in turning the idea for this Handbook into a reality.
First, thank you to the many contributors for offering your time and expertise for the benefit of the clinical community.
Thank you also to our publisher, the Institute of Advanced Legal Studies, for your support (and patience) and for recognising the merit in making this Handbook available as an open access resource.
A particular thank you also to Richard Grimes, who not only wrote some parts of this Handbook, but also offered feedback on a number of sections. You remain a fountain of knowledge and most valued champion for all things CLE.
Last, but by no means least, by far the biggest thanks must go to my co-editor, Nick Johnson. It has been a pleasure working with you and I can say with absolute certainty that this book would not have been what it is without your help and support. Thank you.
I will conclude by saying simply that I hope that you, the users of this Handbook, find it to be a valuable resource that informs and enables your clinical practice, so that you may focus your energies where they are most valuable: delivering high quality legal education and promoting access to justice.
Linden Thomas
August 2019
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1 The Clinical Legal Education Organisation (CLEO) is a charity that provides encouragement, expertise and support to develop clinical legal education in UK law schools. See Part 6 for further details.
2 This was later published in the following article: Linden Thomas, ‘Law clinics in England and Wales: A regulatory black hole’ (2017) The Law Teacher, early online publication <https://www.tandfonline.com/doi/full/10.1080/03069400.2017.1322858> accessed 23 July 2019.
3 A 2014 report published by LawWorks revealed that by the end of 2013, at least 70 per cent of all UK law schools were delivering some form of pro bono or clinical legal education. See D Carney, F Dignan, R Grimes, G Kelly and R Parker, The LawWorks Law School and Pro Bono Clinic Report 2014 (LawWorks, 2014) <https://www.LawWorks.org.uk/solicitors-and-volunteers/resources/LawWorks-law-school-pro-bono-and-clinics-report-2014> accessed 22 August 2019.
4 For more on the many and varied models of clinic, see Part 1.
5 Part 2 focuses predominantly on the position in England and Wales. Therefore, readers in other jurisdictions will need to check the situation under the applicable laws and regulations.
6 August 2019.
7 SRA, Standards and Regulations (20 March 2019) <https://www.sra.org.uk/sra/policy/future/resources.page#resources> accessed 23 July 2019.
8 The SRA Handbook was introduced in 2011 and has been subject to a number of revisions. Solicitors Regulation Authority, Handbook (6 December 2018, version 21) <https://www.sra.org.uk/handbook/> accessed 23 July 2019.
9 For those interested in learning more pedagogical approaches to CLE teaching, there are a wealth of materials available. Some such sources are referenced in the literature review in Part 4. See also, for example, David McQuoid-Mason and Robin Palmer, African Law Clinicians’ Manual (Open Society Foundation, 2013, 2nd edn) available at <http://www.cleo-uk.org>.