No longer just a trend, legal clinics are now perceived as an essential part of the educational process in law schools; in addition, legal clinics play an increasingly important role as providers of legal aid.
In Russia, legal aid is still at its formative stage, and neither the government departments concerned nor the professional community have perfect solutions for managing legal aid providers. According to the Federal Law on Legal Aid in RF1Federal Law of 21 November 2011, № 324-FZ on Free Legal Aid in the Russian Federation // Collection of RF Laws, 2011. No. 48, page 6725., there can be two types of legal aid providers: governmental and non-governmental. The law allows non-governmental providers such as legal clinics and non-governmental non-profit organisations (NGOs) to self-manage, i.e. continue operating as they did before the law. As for the governmental system financed from the public budget, legal aid can be provided by lawyers compensated by the state and by government-operated public legal bureaus which are set up and financed by the state. The regulatory framework for legal aid provision in the regions was not finalised until last year, and its evolution indicates that an optimal model for managing legal aid is yet to be found, both at federal and regional levels.
Today, both the government and interested providers continue their search for such an optimal model. Thus, in 2015-16, they plan to conduct a detailed review of the existing legal aid system and subsequent testing of various models of legal aid provision in Volgograd and Ulyanovsk regions as part of a joint project between the Russian Ministry of Justice and the Council of Europe2The project start was announced on 20 May 2015 at a meeting hosted by the Russian Ministry of Justice Department for Legal Aid and Interaction with the Judiciary.. This review is expected to result in a comprehensive and universal model of legal aid provision at the regional level via both public and private providers. While the latter receive no public funds, the number and quality of services they provide are not inferior to those offered by government-subsidised providers. Moreover, their multitude, proximity to service users and specialisation often allow non-governmental providers to solve clients’ legal problems faster and more effectively. Driven by genuine enthusiasm and a desire to help, many legal clinics and non-profit organisations have earned public trust and a good professional reputation.
In recent years, new legal clinics have been set up in Russia, totalling 188 by 20163http://codolc.com/clinics/; but some of them still function irregularly or exist only on paper, as their establishment was a forced decision driven by a desire to meet one of the criteria which allowed a university to obtain public accreditation (now replaced by a more comprehensive professional/public accreditation) from the Association of Russian Lawyers4Para 8 of the Annex to the Association of Russian Lawyers Regulation on Public Accreditation of Institutions of Higher Education Training Legal Professionals.5Para 1.8 of the Annex to the Regulation on Professional/Public Accreditation of Legal Curricula..
However, Russia’s leading law schools have set up and operated legal clinics for reasons other than meeting any formal criteria; instead, such law schools seek to provide better legal training and raise students’ awareness of their social responsibility and the important role of the legal profession in society. Indeed, a few universities had established a legal clinic long before the Law on Legal Aid was passed. Learning by trial and error, such legal clinics have worked out their own mode of operation best suited to the objectives of the host university and the regional circumstances, such as the prevalence and severity of certain social problems6Where such problems exist, they have prompted the establishment of specialised legal clinics., availability and performance of other legal aid providers, coherence of the local professional community, involvement of experienced legal practitioners in the work of legal clinics, and some others.
Historically, this is the third broad-based effort to integrate legal clinics in lawyer training in Russia; each time, the number of law schools involved increases dramatically. The first such effort dates from the second half of the 1990s, when some Russian universities set up legal clinics with support from foreign NGOs and sent their faculty members to Western universities to learn more about the operation of such clinics.
It is noteworthy that the first- attempt to establish a legal clinic was made in Russia at the University of Kazan in the 1830s by Professor Dmitry Meyer7I. Meyer, On the Importance of Practice in Contemporary Legal Education. Kazan, 1855, pages 48-49.. Unfortunately, legal clinics in pre-revolutionary Russia did not go beyond the academic debate; however, they evolved and became a widespread practice in other countries in the 20th century. In the mid-1990s, the idea came back to post-Soviet Russia, leading to the establishment of the first legal clinic on 20 November 1995 at the Petrozavodsk State University8http://www.petrsu.ru/Faculties/Law/clinic.html.
The early and mid-2000s saw a second wave of legal clinics’ evolution in Russia, as more universities, having learned from the experience of earlier clinics, introduced their own. Early attempts were made to build an association of the emerging clinical legal education community9To date, these efforts have led to the creation of the Centre for Development of Legal Clinics NGO, which brings together more than 50 leading law schools and collaborates with clinical legal communities of Poland, Belarus, Kyrgyzstan and Transnistria., and a debate started on whether standard rules and procedures could be adopted to guide the establishment of new clinics.
Practice reveals that legal clinics set up by different universities can vary widely in terms of their organisational and administrative format as well as content. We believe that at their current stage, Russian legal clinics can be categorised based on several criteria.
Generally speaking, legal clinics can vary in terms of their clients and the types of issues they are helping clients resolve.
Most legal clinics offer assistance with a wide range of issues, since law schools and universities seeking to provide fundamental or at least comprehensive legal training seek to offer students opportunities for developing practical competences in different branches of law10This conceptual framework underlies e.g. the operation of the legal clinic at the Moscow State Lomonosov University.. This approach means that legal clinics dealing with different types of legal issues should also accept all categories of clients.
Obviously, members of socially disadvantaged groups tend to seek advice on a limited range of issues, such as consumer protection, family law, social security, housing, criminal law and procedure, and civil litigation11Reports and statistics of universities and laws schools, partners of the Centre for Development of Legal Clinics, are available at www.codolc.com. However, future graduates of prestigious law schools also have good career prospects in the corporate world, civil service and private practice in a variety of spheres. It is therefore appropriate that the Russian law does not restrict non-governmental (as opposed to government-subsidised) providers of legal aid in terms of issues and clients they are allowed to deal with; as long as the state does not control or finance such providers, they should be able to choose their target audiences and focus.
Alongside legal clinics dealing with a wide range of issues, there are a few operating in specialist legal fields, such as environmental law (EPRA in Irkutsk, Ecodal in Khabarovsk, EFORA in Vladivostok), or providing legal support to businesses (legal clinic of the Volgograd Institute of Business). Legal clinics’ specialisations are determined by the learning objectives set for them by founders and managers.
Legal clinics are allowed to choose areas of activity beyond those outlined in the Law on Legal Aid. This possibility gives them two advantages: first, legal clinics are able to find the best match between the students’ learning objectives and the services they provide, and second, their diversity contributes to the overall access to legal aid countrywide, since clinics can take up cases which are not covered by government-subsidised legal aid offices. We believe that an ideal system of legal clinics’ coordination could involve some kind of service desks from where clients with particular issues could be referred to relevant specialist clinics, while other clients would be evenly distributed among generalist legal clinics. Such a system would support an efficient use of available human and material resources, besides further expanding access to legal aid.
The types of legal assistance provided can serve as another basis for categorising legal clinics.
Almost all legal clinics provide face-to-face consultations, help draft legal documents for clients, and prepare written advice to be sent out by post or email. Certain legal clinic, e.g. in Stavropol Region, do not offer face-to-face advice for various reasons, such as limited resources, and provide remote services only. In recent years, clinics have increasingly provided online legal counselling using publicly available computer software for real-time interaction or video conferencing for advising people in custody. This type of service is now offered by legal clinics across Russia, including a few, such as those at Tomsk State University and Saratov branch of the Ministry of Justice Law Academy, that have provided online advice for many years.
While not explicitly restricted from doing so12Moreover, given the rules of legal representation in civil and commercial (arbitration) proceedings, no such restrictions can be imposed., most legal clinics do not represent clients in courts and other authorities, since their law schools cannot afford to ensure adequate student supervision in this context. However, 35 legal clinics in Russia do provide client representation in courts and other authorities. Moreover, a few legal clinics have been set up precisely at the initiative of Russia’s judicial community13The Yaroslav Mudry Novgorod State University, Shadrinsk State Pedagogical Institute, Volga Branch of the Ministry of Justice Law Academy, because they can also benefit the government authorities by helping reduce the amount of complaints from the public and requests for government-subsidised legal assistance. The diversity of legal clinics and services they offer also contribute to better access to legal aid for people with diverse needs. Once again, setting up help desks for directing potential clients to a variety of legal aid providers, including NGOs and government-subsidised services, as well as legal clinics, could help increase access and make rational use of available resources. As an example, those legal clinics which do not provide representation could draft the legal documents and prepare oral arguments for the court and then make them available to other legal aid providers who are able to represent clients in court. The reverse situation is also possible, i.e. overburdened non-governmental and governmental legal aid providers could refer some of their clients to legal clinics.
Obviously, a need for legal aid arises when someone has faced – or believes they have faced – a violation of their rights and legitimate interests. However, members of the public are not always aware of their rights and entitlements and how these can be protected and, most importantly, fail to take preventive steps to avoid violations. Low legal awareness of the general public should prompt all actors of the legal system14This broad term includes all types of organisations involved, as well as law enforcement agencies. to consider providing legal education. This is what some legal clinics are already doing, including those in St. Petersburg, Moscow, Yekaterinburg, Tomsk, Arkhangelsk, the Chechen Republic, Stavropol Region, and many others. Street Law (in Russian: Zhivoye pravo) legal clinics have been working to raise legal awareness and provide legal education to school students and adults. Such clinics help law students develop professional competences needed to educate the general public and encourage them to disseminate legal knowledge and empower citizens to prevent violations of their own rights and avoid breaking the law. As a result, such efforts may eventually reduce the need for legal aid, thus making it even more accessible.
Legal clinics can also be categorised based on whether or not students are required to take a special training course prior to clinical work.
Many law schools recognise the usefulness of such preparatory training and offer it as an optional, elective or required course, often based on internally designed curricula which may vary considerably, but always emphasise interactive learning15The so-called ‘mock clinics’, ‘clinical simulation’, etc., where students deal with mock cases instead of real clients can be useful by providing an interactive training environment to prepare students for clinical practice, but for the purposes of this article, they are not considered ‘legal clinics’, i.e. organisations or structural subdivisions of universities engaged in legal aid provision.. Some other clinics do not offer a special preparatory course – usually for reasons such as administrative barriers, urgent need to get students to the clinic quickly, or lack of teachers – replacing it with on-the-job training. Recently, a growing number of Russian universities have introduced a requirement for students to complete a special preparatory course or a series of skill-building training sessions before they are allowed to practise at a legal clinic.
The choice of a particular method of preparing students for clinical work is by no means random; it is usually a conscious decision made by a university based on available resources and the need to ensure its legal clinic’s continued operation. Being ultimately responsible for the quality of legal services provided, the host university should be free to choose what steps it takes to ensure such quality as long as it is proven by practice. Such steps may certainly include practical sessions, training courses, internships and other methods which help prepare students for clinical work.
On the other hand, imposing any particular method of student preparation may force a university to change the legal clinic’s current mode of operation, which is hardly justified if the clinic’s performance is already great. Indeed, any forced change may disrupt the continuity of a legal clinic’s operation and thereby negatively affect access to legal aid.
Yet another basis for classification is whether all law students are required to spend time working at their university’s legal clinic.
Strictly speaking, a student’s clinical work should be understood as dealing with a real client under a teacher’s supervision; however, universities often consider operational support functions, such as taking phone calls and making appointments, disseminating information about the clinic, etc., and prior preparatory training, to be part of clinical practice, even though such tasks have little to do with building student competences as legal professionals and providing legal aid – the two key objectives which, in combination, define the legal clinic as an institution.
It may appear that since most Russian legal clinics today operate as optional rather than required type of student engagement, they may be underutilising the law school’s human resources and thus limit potential public access to legal aid. However, this is not quite true, if we consider the definition of access to legal aid, which states that there should be no barriers for citizens to obtaining legal aid other than those caused by limited resources of the legal aid provider and the requirements of social justice and social responsibility; proclaims equality and non-discrimination in access to, and provision of, legal aid; and requires providers to give citizens equal access to legal aid subject to the provider’s objectives, procedures and available resources and clients’ compliance with the provider’s rules16Concept for Development and Support of Legal Clinics in the Russian Federation to 2025, presented to the Ministry of Justice, available at www.codolc.com.
Legal aid provider resources are always limited by virtue of either budget constraints or institutional capacity, yet each and every provider, including legal clinics, is required to ensure adequate service quality. There are a number of ways legal clinics can ensure service quality, the most important of them being teacher supervision of student work. Thus, by choosing to make clinical practice a required activity for all of its law students, a university needs to assign enough teachers to the legal clinic to ensure adequate supervision. Regardless of how big the university, it will then need to compensate for the additional workload by hiring more teachers or risk overwhelming its existing faculty. Alternatively, by offering students an option of clinical practice and thus reducing the number of students in need of supervision, a university may be able to manage the extra workload without additional cost. Thus, if access to legal aid is understood not as provision of free legal assistance to everyone who might need it, but rather as offering a reasonable amount of services without discrimination while pursuing a certain objective and ensuring adequate service quality, then limited provider resources should be part of the equation.
While ideally universities should be interested in providing clinical practice to all students, since it can increase the quality of training dramatically, there are a few arguments against required clinical practice: first, as mentioned above, law schools need realistically to assess their available resources; second, not all legal specialties involve the skills of advising non-lawyers; and third, where clinical practice is required, universities should be prepared to expel students for failing it; however, schools rarely do so, as de-facto they tend to still consider legal clinics as optional and their attendance a formality.
In addition to this, students who volunteer for clinical work for personal reasons without expecting material benefits tend to be more committed both to individual client cases and the clinic’s operation generally and often provide better quality of services compared not only to peers who are forced to attend the clinic for academic credits, but also to some trained lawyers charging a fee, since highly motivated student volunteers often find that being able to help a client, come up with a smart legal solution and offer high-quality legal advice can contribute to their self-esteem, professional competence and reputation.
There is no clear-cut answer as to whether clinical work should be mandatory for law students: even from the perspective of access to legal aid, engaging more people in its provision does not necessarily mean better service quality, and universities might need to invest additional human and administrative resources to ensure adequate supervision as the number of students working in legal clinics expands. The real purpose of legal clinics, i.e. providing competent advice to clients and effective training for students, should not be overlooked in search of a wider outreach.
The above are just a few major criteria one can use to categorise the diverse models of legal clinics; some others include period of operation (year-round or during academic semesters), hours of work (during classes or in students’ free time), involvement of external experts, funding sources, location (on campus or elsewhere), and more. Competition can also contribute to diversity, as each law school seeks to create a unique product which is somewhat different from any other legal clinic run by competitors. By setting up and upgrading their legal clinics, law schools can explore society’s need for legal aid and correlate it with their study objectives as well as material and human resources, thereby creating multiple variations of legal clinics, each of which is potentially capable of finding its own niche and serving those who need it most. Introducing performance standards for legal clinics may still be possible, but only in terms of service quality, rather than format and focus of their operation. A diversity of providers can make legal aid more accessible by tailoring services to a broad range of clients and issues.
References [ + ]
|1.||↑||Federal Law of 21 November 2011, № 324-FZ on Free Legal Aid in the Russian Federation // Collection of RF Laws, 2011. No. 48, page 6725.|
|2.||↑||The project start was announced on 20 May 2015 at a meeting hosted by the Russian Ministry of Justice Department for Legal Aid and Interaction with the Judiciary.|
|4.||↑||Para 8 of the Annex to the Association of Russian Lawyers Regulation on Public Accreditation of Institutions of Higher Education Training Legal Professionals.|
|5.||↑||Para 1.8 of the Annex to the Regulation on Professional/Public Accreditation of Legal Curricula.|
|6.||↑||Where such problems exist, they have prompted the establishment of specialised legal clinics.|
|7.||↑||I. Meyer, On the Importance of Practice in Contemporary Legal Education. Kazan, 1855, pages 48-49.|
|9.||↑||To date, these efforts have led to the creation of the Centre for Development of Legal Clinics NGO, which brings together more than 50 leading law schools and collaborates with clinical legal communities of Poland, Belarus, Kyrgyzstan and Transnistria.|
|10.||↑||This conceptual framework underlies e.g. the operation of the legal clinic at the Moscow State Lomonosov University.|
|11.||↑||Reports and statistics of universities and laws schools, partners of the Centre for Development of Legal Clinics, are available at www.codolc.com|
|12.||↑||Moreover, given the rules of legal representation in civil and commercial (arbitration) proceedings, no such restrictions can be imposed.|
|13.||↑||The Yaroslav Mudry Novgorod State University, Shadrinsk State Pedagogical Institute, Volga Branch of the Ministry of Justice Law Academy|
|14.||↑||This broad term includes all types of organisations involved, as well as law enforcement agencies.|
|15.||↑||The so-called ‘mock clinics’, ‘clinical simulation’, etc., where students deal with mock cases instead of real clients can be useful by providing an interactive training environment to prepare students for clinical practice, but for the purposes of this article, they are not considered ‘legal clinics’, i.e. organisations or structural subdivisions of universities engaged in legal aid provision.|
|16.||↑||Concept for Development and Support of Legal Clinics in the Russian Federation to 2025, presented to the Ministry of Justice, available at www.codolc.com|