Clinical Legal Education – [Part III] The Harvard Law School Clinic Model
This piece is in continuation of the former two pieces on clinical legal education in India. The first piece provided a background to clinical legal education in India and the second piece looked into three different law school clinics to get an idea of how law school clinics operate in India. This piece looks at the Harvard Law School clinic model and compares it with its Indian counterpart.
The Harvard Law School (HLS) Clinic Model
- What Is The Model?
Harvard Law School (HLS) offers clinical legal education opportunities to its students in more than 30 different areas of private and public law, through in-house clinics, externship opportunities and independent clinics. It claims to have the biggest clinical legal education in the United States and in the world. Though the use of the term ‘model’ for HLS clinical legal education can be questioned, the main idea in this section is to look at the HLS clinical legal education and identify some of its features that make it different from the Indian clinical legal education system in India.
- Goal of the Clinical Model
Jeanne Charn, who was one of the main founders of the clinical legal education at Harvard along with her husband, Prof. Gary Bellow dedicated her life towards experimenting and strengthening the clinical legal practice at Harvard. In her article, where she looks back at their journey in setting up the clinical practice, she notes that there were four goals that they had in mind for the clinical legal education from the outset. These are as follows :
- To prepare law students for practice.
- To focus on the legal needs of ordinary people and small businesses as opposed to for-profits.
- To enhance understanding of the functioning of the bar and the discrepancy between the law on books and its practice.
- To facilitate collaboration and connection between the academy and the bar.
HLS’s website provides detailed description of the clinical legal education opportunities and model. In order to understand its main features, the following points can be noted. First, there are different clinics, including in-house clinics, externship clinics and independent clinics.
- The in-house clinics are those which are based on the campus of HLS and are completely run under the aegis of HLS. There are 18 in-house clinics taught by 15 Clinical Professors of Law and more than 60 Clinical Instructors and Lecturers on Law.
- The externship clinics are those that are out of campus and students need to travel to these clinics. There are 11 of these and are taught by faculty members and experiences attorneys.
- Independent Clinic: If a student is interested in an specialized area of law, for which there is no clinical opportunity offered by HLS, then the student has the freedom to design a clinical experience for himself/herself. This requires choosing an organization to work with, getting an offer from them, getting a faculty member and a supervising attorney to back this proposal and submitting an application with all these details including a paper proposal.
Secondly, all these clinics except the independent clinic have a course component to them. This requires that students take a fixed number of hours towards the class component, around 8 hours per week and devote a fixed number of hours towards practice at the clinic, around 20 hours per week. This helps the students to connect theory to practice.
The way the clinics are structured, there are professors who try and provide students with a theoretical base in the specialized area of law that they are pursuing and Clinical Instructors and Supervising Attorneys help to connect this to the practice of law. Clinical Instructors help students to design their clinical experience with utmost flexibility, keeping the interests, time availability, learning scope etc. in mind.
Thirdly, there is a focus in all the clinics to encourage specialization amongst law students. The idea behind this is to enable law students to see the patterns of cases, understand the nuances specific to that area of law, such that they can make maximum impact in cases.
Students undertake a variety of tasks at the clinics. Some clinics are very heavily focused on litigation and expose students to different stages of litigation experience, such as fact-finding, interviewing clients, conducting research, preparing memorandum and other legal documents and then actual representation in courts of law. The rules in Massachusetts require that law students can engage in giving legal advice and representing clients in courts only if they are being supervised by a licensed and practicing attorney. This enables the students to learn by doing, bridge theory with practice and see the operation of law in real world, helping them to hone the repertoire of their legal skills. Some other clinics may require students to draft policy recommendations, reports or carry out desk research. Since students work with attorneys and supervisors, they get constant feedback which enhances their experience and motivated them to produce high quality work.
Other than the clinics, HLS also has several Student Practice Organizations (SPOs) which are student run, and help students to engage in legal practice under supervision in specific areas of law.
However the most important thing to note about the HLS clinical legal education model is that students are given academic credits for the clinical work they do. This pattern is similar across most law schools in USA. Giving academic credit ensures that the clinical courses are treated at par with other academic courses. This implies that students take the clinical courses seriously.
- Brief History Of The HLS Clinic Model
- Tracing Brief History
HLS Clinical offerings today look enviable by every standard but it developed over a period of four to five decades, under the leadership of several Deans. Jeanne in her article describes the various stages of experiments with HLS’s clinical offerings. Initially, Jeanne and Gary worked with local legal aid offices to use it as a base for clinical legal education. The students would work at these offices for fixed hours and assist the local legal aid officers with their cases. It worked well for a while but then the attitude of the local legal aid officers who saw the students merely as providing services, resulted in lack of feedback and adequate supervision for the students.
This was followed by an effort to set up a clinical fellowship program by recruiting fellows who would split their time in serving as clinical instructors as pursuing their LL.M. degree. This idea grew from the realization that there was a need for specialized and dedicated Clinical Instructors who would devote their time and energy in training and supervising the students with real world matters. This too did not work well. The demands on the time of the Clinical Instructors who had too much on their plate to advance their own research agenda, was an obstruction for them to do justice with their role as Clinical Instructors.
This led to yet another experiment, whereby a selected group of third year students pursued the final year of their legal degree at the Legal Service Institute, undertaking 8 hours of theory classes per week and 20 hours of practice per week. The idea here was to have the final year of study dedicated to pursuing a well designed clinical course so that students could become adept at practice and learn to take responsibility for the case. The funding for this project came from the Government (the Legal Service Corporation) but this could be implemented only for two years before the funding was terminated.
All these experiments brought home the need for a clinic closer to home (HLS) and funded by HLS to ensure predictability. This consequently led to setting up of a Teaching Law Office for which 3/4th part of the funding came from HLS. A staff of 20 lawyers and paralegals and full time clinical instructors were hired to run the clinic. It had the initial capacity to take up to 70 students. It was modeled on the lines of a medical school where the physicians mix the roles of instructors and practitioners to the medical students. There were some departures from the traditional model of legal clinics. A small fees was charged to clients instead of making legal services entirely free. Also those clients who were otherwise above poverty line but still could not afford legal services were also served. The clinic took up work which was not then considered to be typical legal aid work such as home purchase, and mortgage foreclosure prevention. Besides taking up real life matters, research and scholarship was encouraged and undertaken at the clinic.
- How Does It Compare To The History Of The Clinical Legal Education In USA?
The failures and success of the HLS Clinic Model partly tells the story of the support for clinical legal education in USA. The clinical legal education program picked up in USA in the 1960s with the popularity of the civil rights movement and a focus on eradicating poverty. At the time, legal clinics were looked upon as a medium to provide access to justice to weaker sections of the society. In other words, the attitude towards clinical legal education was from the standpoint of professional duty than professional training. Today, most American law schools have robust clinics, in different areas of law.Comparison Of The HLS Clinic Model With The Law School Clinics In India
- Why Should The Two Be Compared?
As can be seen, the level of development of the clinical legal education in India and at HLS are very different. While Indian law schools cannot be said to have a robust clinical legal practice or model, HLS is far ahead in the game. It is true, as the UNDP report, 2011 (hereinafter the UNDP report) suggests that some of the Indian law schools have done better than the others. But overall, clinical legal education in India has not been taken with a seriousness that its American counterpart has witnessed.
The question arises, why should the two models be compared? The main aim of doing so is to see if there are lessons that can be learnt in India from the best practices of HLS. A skeptical view is that given the differences in overall culture of legal education, availability of funding, co-operation of various stakeholders, availability of faculty members etc., it is unfair to compare the two models. This observation is indeed true but in this section comparison is not done with the view to give a score card to the Indian law schools but to draw home the point that there is a case for overhauling the Indian clinical legal education system. In order to so, drawing upon the best practices of one of the world’s best clinical legal education model may be helpful.
- What Makes The HLS Model Different From The India Model?
Even though the Indian clinical legal education model and the HLS model vary in almost every aspect, it is pertinent to draw some unique features of the HLS model. This is done to ensure that the wood is not lost in the tree and attention can be drawn upon some notable features of HLS model.
- Academic Credit for Clinical Work:
The HLS clinical model provides for academic credits to the students from its inception. This has been lacking in the Indian model. Even though the Bar Council of India (Bar Council of India, Circular No. 4/1997) requires that practical courses be compulsorily taught to law students, it has been mostly limited to introducing a class component in most law schools with no connection to the practice component. Therefore all the practice related work through the help of legal aid clinics at law schools is done by voluntary service by students without any academic credit.
This in turn affects the overall quality and seriousness in which these legal aid clinics are run in India. As seen in the second piece in this series, most of the legal aid clinics engage only in legal awareness programs without engaging with any real cases. When they do, the engagement of the students is limited to carrying out legal research which frustrates the very objective of introducing the clinical legal education.
- Well Structured And Team Of Faculty Members :
The HLS model provides for a well developed infrastructure, a structured course and a team of faculty members including Clinical Instructors and supervising attorneys for the smooth operation of the legal clinics. In India, there is neither proper infrastructure or separate physical space for legal aid clinics, nor a team of professors to teach at the course. Most clinics, as the UNDP report suggests have one faculty member, who is not necessarily trained in imparting clinical education himself/herself. This resonates with the finding that most faculty members reported the need for training institutes for imparting clinical legal education in India. Also since there are several students who perform voluntary service, there is no dedicated attention to the input, interests and the performance of the students.
- Quality Of Legal Service:
The number of students in a class or section matter as it has impact on the quality of the work that students take up, interaction with the instructor and amongst students, flexibility to design their experience etc. Even when the funding for legal aid was at its height under the Jimmy Carter administration, quality of legal aid was a major issue. So in India, there is a need to pay attention to the quality of legal services, in order to give a boost to legal clinics.
- Specialized versus Generalized Approach:
HLS has a specialized approach towards its clinical practice. The clinics have a particular focus. The Clinical Instructors are usually experts in a particular field and have several years of experience in their area of specialization. Students are required to register only for two clinics in one year, to help them sharpen their focus on one subject area. In India, there is a very generalist approach towards clinical legal education. Most clinics carry out similar work, with no particular focus. There are a few clinics in India which are now focusing on one area of law. For instance, Symbiosis Law School has an Environmental law cell, a Human Rights cell amongst others, Jindal Global Law School has a clinic focused on Rural Governance etc. But most law schools including National Law Universities, which are set up as premier government law universities providing five year legal education, only carry out general legal aid activities such as holding meetings, distributing pamphlets, making villagers aware of their rights etc. There is little or no direct action of any kind.
- Encouraging Students To Assume Responsibility Is The Key:
The meaning of the word ‘clinical’ suggests a method and yet the practice in India vis-à-vis clinical legal education has come to mean ‘subject matter’. This can be distinguished from the practice at American law schools in general and HLS in particular where no clinic can be called that without having some practical learning component to it. Including the practice component including most notably letting students represent clients in real cases before courts helps students to take up responsibility. In India, the argument against allowing students to represent clients is that they may not be able to represent the clients in the best manner. But logically, it does not make sense as to how students can suddenly be trusted with clients after passing out, when they can’t be trusted with the same clients in their final year. This is where the role of supervisors come in. The fact that students can represent clients at HLS does not suggest that this has led to miscarriage of justice for the clients in any way. Indeed the continued success of the clinics is a testimony to the fact that if the students are trusted, provided proper training, resources and supervision, then they are able to represent the clients as well as qualified lawyers.
Also, the rules in India do not let practicing advocates teach law students. This creates a clear divide between those who teach and those who practice. The advantages of allowing people to tread between teaching and practice has several advantages. Firstly, a lot of law students come out of law school with some interest in both these areas and there is no justification to force people to choose one over the other. Secondly, the field of law is such that one has to connect the theory and practice. Any legal system that tries to separate the two is doing a dis-service to its own growth. Finally, the idea behind law schools is to prepare them for the world of law. Yet, not allowing those who reign the world of law practice in law universities, continues to be the norm.
- Real Consequences
“Consequence are real. One of the great advantages of the method I’m using – clinical method – is I am not talking to my students about ‘what would you do if’ I am talking about ‘what did you do when?’
At HLS, the students have an advantage to know their actions have real life consequences for the people. This brings gravitas to both the legs of the clinical legal education goals viz. to provide professional training to students and to use clinical legal education as a means to enhance access to justice. When this element of an opportunity to create real impact and have real consequences is taken away, the incentive to do serious work, and know its significance is greatly reduced.
Based on the last three pieces, the next and the final piece in this series, will try to sketch out a blueprint to strengthen the clinical legal education model in India.
 Jeanne Charn, ‘Service and Learning : Reflections on three decades of the Lawyering Process at Harvard Law School’ in Clinical Law Review, Vol. 10/No.1, Fall 2003 75 at 90 (hereinafter Jeanne Charn, Service and Learning).
 Jeanne Charn, Service and Learning at 89.
 Jeanne, Service and Learning. See also Jeanne Charn and Jeffrey Selbin, The Clinic Lab Office, Wisconsin Law Review, 2013.