By Clement Marumoagae
University law clinics play an important role in training law graduates for the legal profession. Law clinics are traditionally understood to have two main objectives: Teaching law students the practice of law; and providing free legal services to indigent members of the community. However, they are now also focusing on introducing law graduates to the legal fraternity. They do so by recruiting candidate attorneys who are then allocated supervisors – clinicians who are lawyers within those law clinics – to train and prepare them for the practice of law. It is important that such candidate attorneys receive adequate supervision within these law clinics.
Recruiting candidate attorneys
Law clinics are playing their part in assisting poor people to access justice by utilising the services of candidate attorneys. This process provides candidate attorneys with important legal training, ‘because in reality upon graduation from law school, graduates do not possess the necessary practical skills that will enable them to practice law’ (K Tokarz, P Maisel, RF Seibel, AS Lopez ‘Towards Universal Clinical Education: Why the Time is Ripe for Requiring Clinical Courses for all Law Graduates’, www.nyls.edu, accessed 2-8-2013).
Prof David McQuoid-Mason stated that:
‘In 1993, the Attorneys Act [53 of 1979] was amended to allow candidate attorneys … to obtain practical experience by undertaking community service rather than serving articles in an attorney’s office. Candidate attorneys may perform community service at law clinics accredited by provincial law societies, including clinics funded by the Legal Aid Board. The clinics are required to employ a principal (an attorney with sufficient practical experience) to supervise law graduates in the community service program. The candidate attorneys appear in the district courts and the principal in the regional and High Courts. Interns who have been articled for more than a year may also appear in the regional courts’ (D McQuoid-Mason ‘The Supply Side: The Role of Lawyers in the Provision of Legal Aid – Some Lessons From South Africa’ in Access to Justice in Africa and Beyond: Making the Rule of Law a Reality (2007) at 107; www.penalreform.org/wp-content/uploads/2013/06/rep-2007-access-africa-and-beyond-en.pdf; accessed 2-8-2013).
It is important for law clinics to prepare candidate attorneys for the legal profession and develop them to be competent legal practitioners who possess the necessary expertise required by the profession. It is also crucial for clinicians to create an environment within law clinics that will enhance the learning capacity of candidate attorneys. Clinicians should always encourage a good work ethic among candidate attorneys and ensure that they understand the value of efficiency when carrying out their prescribed duties.
Candidate attorneys should be trained to carry out their duties with pride and serve their indigent clients with utmost professionalism, dignity and interest. They should be made to understand that the mere fact that the majority of their clients are poor, does not mean they deserve substandard legal services. In order to render dignified service and help indigent clients access justice, candidate attorneys should be made aware of the required values and skills of the legal profession, which include, among others –
Law clinic as an alternative
Most students in their senior year of study at various law schools often desire to work for one of the established commercial firms. Such a desire is motivated by a variety of reasons, which include, among others –
One of the major reasons that might induce a law graduate to opt for a big commercial firm is the debt that he or she might have incurred to cover his or her university fees. The above, however, does not apply to all law graduates, as not all of them can be considered and hired by big commercial firms for a variety of reasons. These include, among others –
As such, Legal Aid South Africa and various law clinics have positioned themselves as viable alternatives to big and medium commercial firms and, at times, also as the first choice for law graduates to serve their articles of clerkship.
Access to the legal profession, especially by black law graduates, has been a subject of much controversy for a number of years. In 1995, professor Hugh Corder made the following observations:
‘Although there has never been a formal exclusion of black South Africans from legal professional or educational ranks, and although there have been prominent examples of black lawyers who have assumed a leading role in professional and political circles, access to professional qualification for black South Africans has always been much harder than for whites’ (H Corder ‘Establishing Legitimacy for the Administration of Justice in South Africa’ (1995) 6 Stellenbosch Law Review at 206).
It has also been further argued that: ‘Many black graduates, burdened by perceived substandard law degrees at racially exclusive universities and by racial misconceptions that the skills of black lawyers mainly limited them to criminal practice, were unable to secure articles of clerkship with law firms or pupillage with advocates, thereby being denied entry to the legal profession. Likewise, the legal profession was primarily a (white) male bastion, with the entry of women having been constrained through invisible societal barriers’ (J Bodenstein ‘The Role of University-Based Law Clinics in the Provision of Legal Aid in South Africa’, www.ilagnet.org, accessed 2-8-2013).
Private and commercial law firms have consistently been criticised for hiring black candidate attorneys as a ‘public interest gesture to provide training and some commercial law exposure to a few blacks rather than a serious effort to retain these blacks as professionals who would ascend to partnership’ (LR Pruitt ‘No Black Names on the Letter Head – Efficient Discrimination and the South African Legal Profession’ (2002) 23 Michigan Journal of International Law 545 at 572). They have also been criticised for hiring black candidate attorneys in order to comply with their black economic empowerment (BEE) targets.
However, in reality, even though there are concerns in this regard, there has been improvement as far as retaining black candidate attorneys on merit is concerned in commercial firms. It cannot be disputed that, in South Africa, candidate attorneys’ recruitment and employment have been characterised by class, racial and social considerations as well as other forms of discrimination (W de Klerk ‘University Law Clinics in South Africa’ 122 SALJ (2005) 944). De Klerk has also argued that ‘law clinics continue to provide a valuable alternative route into the profession for black law graduates’. It is therefore pleasing to see candidates of other races also being hired to serve articles at these law clinics.
Law clinics are involved in public interest work and rely heavily on candidate attorneys to advise and provide legal solutions to indigent members of the public and also to represent them in court. This initiative exposes candidate attorneys to real practice of law and allows them to experience the profession at large. Candidate attorneys serving articles in law clinics are given the responsibility of solving and attending to their clients problems under the supervision of clinicians. As such, they are allowed to make mistakes and learn from them, unlike in private and commercial firms where the room for mistakes is limited because of the money involved.
By becoming more professional and through the kind of practical training they provide, some law clinics have succeeded in attracting the best law graduates who consider them as their first choice to serve articles. The University of the Witwatersrand law clinic, which I have personal experience of, has for example become more professional in recent years by acquiring the services of a receptionist, typist, office manager, filing assistant and the creation of a trust account. It also has a basket system that allows ease of communication within the clinic.
Law clinics, through their clinical legal education mandate, are in a position to create a platform for candidate attorneys to understand and ‘recognise the injustices in society and in the legal system, to appreciate the role they can play in challenging social injustices and in reforming the legal system, to make society and the legal system more just’ (S Wizner and JH Aiken ‘Teaching and Doing: The Role of Law School Clinics in Enhancing Access to Justice’ 2004) http://scholarship.law.georgetown.edu, accessed 2-8-2013).
Supervision of candidate attorneys
I am of the opinion that, in order to provide efficient legal services to the poor, candidate attorneys in law clinics should be trained adequately to increase their competencies and skills, such as –
Research skills are particularly important to candidate attorneys as they should possess strong substantive law knowledge. This will further enhance and strengthen their understanding of procedures and the rules of the various courts in which they practice. Those entrusted with teaching these skills should also explain clearly the importance thereof in order to successfully practise law. Candidate attorneys should also understand how to manage a file and how to adequately interact with corresponding attorneys. In order to provide adequate supervision, clinicians should generally be equipped in the areas of law that they practise.
It is essential that the relationship between the candidate attorney and the clinician is healthy and professional at all times and creates an environment that will assist a candidate attorney to ultimately be admitted into the legal profession. This is important because:
‘The graduate and the practicing attorney sign a contract that contains an exchange of promises: The graduate or “candidate attorney” pledges to use diligence, honesty, and confidentiality, while the supervisor or “principal” agrees to provide proper instruction in the areas of legal practice, ethics, and understanding … . Finally, the principal agrees to use [his or] her best efforts to assist the attorney in gaining admission, assuming successful completion of the period of articles’ (P Maisel ‘An Alternative Model to United States Bar Examinations: The South African Community Service Experience in Licensing Attorneys’ 20 (2004) 4 Georgia State University Law Review 977 at 983).
Clinicians should be able to provide candidate attorneys with ‘contextualised understanding of the law and its operation, the awareness of the lawyer’s community responsibility, and the practical and ethical skills to protect the interests of their clients and of the broader community’ (R Hyams and B Naylor ‘Innovation in Clinical Legal Education: Educating Lawyers for the Future’, www.altlj.org, accessed 5-9-2013). It is my opinion that law clinics are indeed better positioned to provide such values to candidate attorneys as they are closely linked with the communities that most of these candidate attorneys are members of. As such, the need for quality and hands-on supervision of candidate attorneys cannot be overemphasised. Indeed, the quality of mentoring and supervision of candidate attorneys is a key ingredient in preparing candidate attorneys to become competent lawyers. The matter of proper supervision goes beyond the clinician’s suitability to training candidate attorneys, it involves the clinician’s ability to guide candidate attorneys on how to manage their workload. It is therefore important that clinicians who are employed by law clinics should possess some expertise in the field of law.
Conclusion
It is advisable for candidate attorneys and their supervisors to develop a relationship of trust and formulate a timetable on when they would meet to discuss files that candidate attorneys are working on. However, it might not be practical for clinicians and candidate attorneys to meet regularly given the clinicians’ responsibilities towards students, their research and lecturing requirements at the law school. Notwithstanding these challenges, clinicians should make themselves available to supervise candidate attorneys effectively and check their work regularly.
It might be advisable, however, for candidate attorneys not to rely too much on clinicians in order to develop the independence and autonomy that will strengthen their learning and will make them valuable to potential employers. I am of the view that clinicians should also liaise with their colleagues who are retired or even in private and commercial practice to develop programmes aimed at training candidate attorneys in some of the aspects that are not part of the law clinic structure, such as billing clients.
Finally, I note with concern that the Legal Practice Bill (B20 of 2012) defines a legal practitioner as a mere attorney and advocate and does not include clinicians practising at law clinics. Furthermore, this Bill defines an attorney as a legal practitioner practising with a Fidelity Fund certificate, which effectively excludes clinicians at law clinics as well as attorneys practising at Legal Aid South Africa. It must be noted that s 84(8) of the Attorneys Act exempts attorneys with full-time employment by Legal Aid South Africa from obtaining a Fidelity Fund certificate. It is not clear whether or not clinicians and legal aid practitioners are regarded as legal practitioners by this Bill, however, the necessary amendments should be effected in order to include them within the confines of the Bill before it is passed in parliament.
Clement Marumoagae LLM (Wits) LLM (NWU) Dip Insolvency (UP) is an attorney at Marugoagae Attorneys in Johannesburg.
This article was first published in De Rebus in 2013 (Sept) DR 34.
