1. TEACHING ETHICS CLINICALLY WITHOUT
BREAKING THE BANK
Donald Nicolson,
Director, University of Strathclyde Law Clinic

2. Aims
 Outline advantages of teaching clinically (ie
through “live” clients)
 As far as possible, illustrate some of these
advantages
 Respond to alleged drawbacks of teaching
ethics clinically – cost and coverage
 Share and compare experiences of teaching
ethics clinically and non-clinically

3. Clinics, Ethics and
Educational Theory
 Aim of Ethical Education
 Ensure graduates ACT as ethical professionals – ie
uphold high moral standards and contribute to access
to justice (altru-ethical or ultra ethical professionalism)
 Four necessary psychological components (eg D.
Narvaez and J. Rest ‘The Four Components of Acting Morally’ in
Kurtines and Gewirtz (eds), M ra l De v e lo p m e nt: A I d uc tio n
o n ntro
 Moral Sensitivity
 Moral Judgment
 Moral Commitment
 Moral Courage

4. Clinics, Ethics,
Educational Theory
 Moral Character and Ethical Behaviour
See (D. Nicolson, ‘Education, Education, Education: Legal Moral
and Clinical’ The La w Te a c he r 42, 2008, 145)
 Teaching rules only develops sensitivity and only to
limited extent
 Teaching theory and application also develops
judgment but not necessarily commitment and
courage
 Only character development ensures all four
components – doing the ‘right thing’ needs to become
a more or less spontaneous response

5. Clinics, Ethics,
Educational Theory
 Moral Character and Ethical Behaviour
 Moral character develops through actual engagement
and experimentation with ethical issues, and
particularly from feelings of satisfaction and regret,
and from learning from moral exemplars
 Law school cannot radically alter character, but it can
at least help resist the hidden curriculum, confirm
existing altru-ethical traits, and translate them into
professional moral character and, and might even
develop altru-ethical traits in some

6. Clinics, Ethics and
Educational Theory
 But
 Character development/modification takes time
 Experience alone is not sufficient
 (‘[l]earning occurs not in the doing but in the reflection and
conceptualisation that takes place during and after the
event’: Brayne, Duncan & Grimes (eds), Clinic a l Le g a l
Ed uc a tio n: A tiv e Le a rning in Yo ur La w Sc ho o l, 1998, 47.
c
 Personal reflection can be significantly enhanced by
 a theory to make sense of experience
 guided reflection on experience

7. Clinics, Ethics and
Educational Theory
Kolb’s learning cycle

8. Clinics, Ethics and
Educational Theory
 Four aims of ethical education:
 Inspire an interest in ethics
 Illuminate the general and professional ethical
tools available to resolve issues of professional
ethics, and factors which affect resolution
 Illustrate these tools and issues through exposure
to situations involving moral dilemmas
 Inculcate the habit of identifying, evaluating and
caring about ethical issues so that this becomes a
more or less spontaneous response in practice

9. Advantages of Teaching
Ethics Clinically
 Learning experiences which are realistic, and involve
future social roles, are more profound than abstract
learning
 The ‘disorienting moments’/moral crises’ which occur
when prior assumptions and settled values jar with
experiences stimulate an ‘engaged moral faculty’
 Both can be created through role plays and simulation,
but…

10. Question based on diary
in oral examination

11. Advantages of Teaching
Ethics Clinically
 Both can be created through role plays and simulation,
but….
 lessons learnt are likely to go deeper when students are
responsible for decisions have consequences in the ‘real’ world.
 community engagement shown to enhance moral development
 engaging with actual clients may evoke empathy which is
important to the development of moral judgment and
commitment.

12. What did you learn most
from your clinic
experience?

13. Advantages of Teaching
Ethics Clinically
 AND clinics create number of important
conditions for character development
 Feelings of satisfaction or regret at their actions in
representing actual clients and resolving real
dilemmas more likely to ensure character
development
 Students can be involved in a ‘moral apprenticeship’
through learning from staff and indeed other students

14. Clinical education ‘on the
cheap’?
 The USLC Clinic
 Has up to 180 students who provide advice and representation
 Membership can last 5 years,
 Students conduct as many as 40 cases
 All for the price of +/- £100,000 p.a
 How?
 Clinic is largely extra-curricular and social-justice oriented)
 Generally no academic credit for clinic work and apart from
induction training and voluntary CPD, no formal education
content
 Two part-time solicitors concentrate on quality control through
hands-off ‘final product’ basis - staff student ratio of +/- 1:150!)
 Vast majority of administration and policy making done by
students

15. Other Advantages of the
USLC Model
 Avoids potentially negative message of educationally
oriented clinic (cf Nicolson “Legal Education Or Community
Service? The Extra-Curricular Student Law Clinic” (2006) 3 Web
Journal of Current Legal Issues)
 Student Committee acts as ‘justice community’
 Enhanced ‘moral apprenticeship’ through student
mentoring informally (work in pairs) and formally (each
student in a firm with experienced ‘case manager’)
 Allows for much longer immersion in the Clinic and
repeat turns of the learning cycle.

16. What did you learn most
from your case?

17. Ethics Teaching at
Strathclyde
 Apart from training, direct education can be devoted to
ethics.
 Clinical Legal Practice (CLP)
 Optional class for experienced USLC students devoted to issues
of ethics and justice (cf altru-ethical professionalism)
 Assessed via weekly diary, essay based on ethics/justice of
case undertaken, cases (2 for ordinary/1 for honours) and (in
case of honours) oral
 Clinical LLB
 Integrates clinical experience into standard law degree, though
compulsory clinical classes (incl CLP) and at least 2 other
clinical classes
 Students assessed on skills training, cases and diary reflection
 Students must first be admitted to and sign up to USLC ethos

18. Ethics Teaching at
Strathclyde
 All Clinical LLB students and from next year all students
 introduced to major ethical issues to ensure moral sensitivity
 CLP Students
 Legal ethics illuminated and illustrated through
 Introduction to ethical theory
 6 seminars based on detailed reading on
 professionalism and sociological context;
 client autonomy;
 conflicts and confidentiality;
 immoral means and ends x 2;
 ethical education and regulation).
 Reflection on cases in surgeries, diary dialogue and essays

19. Introductory Exercise
 Identify your five most important ethical
values/principles/beliefs
 Aim
 warm up ethical muscles
 Use as means of exploring difference between moral
principles, traits and appraoches
 Which of these do you think you will be able to
retain once in practice?

20. Immoral Ends –
Representation Dilemmas
1. A client comes to you with a very good case for setting aside an election
on the grounds that a few votes were not counted. However, he has little
chance of being elected on a recount and also shows you election
material which is homophobic.
2. A client wants you to help resolve a complicated neighbour dispute
involving blocked access to their parking space. He seems to have a good
case, though enforcing it will be difficult. However, during the course of the
interview he expresses racist views about his Irish neighbours
3. A man comes to you for help in a custody battle. He seems to genuinely
want to look after his children and provides plausible grounds for doubting
his wife’s parenting skills. However, he admits that once in the past he
assaulted his wife and that she is using that against him to win the custody
case
4. A landlady wants to sue her agents. In the course of the action it became
clear that she was a pretty bad landlady – eg she frequently turned up
unannounced at the premises., demanding entry to make inspections of
premises.

21. Immoral Means – Tactic
Dilemmas
1. You represent a client suing for return of a deposit refused on grounds of
damage to the premises. However, she can prove that this was untrue.
You confront the landlady who then comes up with anther reason. You
later learn that she has a history of denying deposits on spurious grounds.
Should you threaten to go to the police alleging fraud unless she returns
the deposit?
2. You represent a charity in protracted negotiations against an unrepresented
litigant who claims that your property collapsed causing damages to his.
After almost three years, he decides to sue. However, you know that there
is a chance that the summons might be defective. Should you inform the
opponent or wait until court to raise the issue in the hope that the claim
becomes time barred?
3. Your client wants compensation for a disease picked up at work. You
require further information about the disease but can only get it from the
defenders. Should you pretend to be a student researching this disease to
get the information?
4. You are engaged in negotiating a settlement. Your client wants a minimum
of £1000. Can you say that you don’t think client will accept less than

22. Client Autonomy and
Paternalism Dilemmas
1. Your client wants to sue the NHS for racial discrimination You fail to
discover any supporting evidence, but are able to gain an offer of £2,000.
The client insists on going to court in order to teach the NHS a lesson.
Are you entitled to use all your powers of persuasion to get her to accept
offer? If you fail, should you continue?
2. Your client is being pursued by a firm of solicitors for £1,400.2 of unpaid
legal fees. Based on the interview and documents produce, you lodge a
counter claim, but later realise the case is not as strong as initially
thought. The client instructs you to proceed nevertheless. A 3-4 day proof
is scheduled. Afterwards, the solicitors offer to drop their claim and not
seek expenses if your client dropped her counter-claim. You advise her
that it would be in her best interests to accept, but she refuses as she
was still furious at her treatment Do you try to dissuade her and if you
cannot should you continue to go to proof?
3. You are acting against a law firm who has made one of their trainees
redundant while on maternity leave. She informs you in passing that a
fellow worker had been subject to sexual harassment by the partner
responsible, but does not suggest that you use this information. Should

23. Conflicts of Interest
1. A client wants to sue one of very few criminal firms working in your home
town. You have gone to university specifically to become a criminal lawyer
so that you can help those in your local area, but if you take on this case
and particularly if you act with all necessary zeal you will radically reduce
the chances of getting a job with this firm and possibly all in the area. Do
you decline to act?
2. A client want to sue for constructive dismissal. He alleges that he was so
badly bullied for having a learning disability that he was forced to resign.
He complains particularly of the actions of Mr X. Shortly after interviewing
the client, you are contacted by Mrs X, a secretary in your organisation.
She urges you to drop the case. Should you do so? Would it make a
difference if this information comes to light weeks or months after
representation had commenced?
3. You are asked to take on a case suing a professional body. However the
other side is represented by a law firm which sponsors the Clinic, albeit not
for very much. Can you continue to represent?

24. Disadvantages of teaching
ethics clinically
 Coverage
 The above dilemmas are only experienced ‘live’ by two students
(though committee might debate them)
 Clinic cases do not represent full range of ethical dilemmas (eg
confidentiality)
 Response
 Latter problem no worse than other classes because can also
use hypotheticals
 In fact most clinic students experience a wide range of issues
and draw upon their reading and views of others to resolve them.
 Some cases (eg case 1 for autonomy is same case as conflicts
case 1 and also involved tactical issue)

25. Evidence of Clinic Effect
 See N o ls o n, Le a rning I Jus tic e : Ethic a l Ed uc a tio n I A Ex tra -Curric ula r
ic n n n
La w Clinic in Robertson et al (eds) The Ethics Project in Legal Education,
(2010) – study of 23 reflective diaries of 21 students who had
experienced an average of 4.5 cases before class
 All students report having experienced or currently
experiencing ethical dilemmas
 Conflict of interest (1)
 Tactics (reporting malpractice as bargaining tool -3; use of
deception 2; taking advantage of client’s lack of representation 3)
 Client relations – all reported dilemmas involving how to treat
clients in professionally and empathetically, not unduly raising
their hopes or impinging on their autonomy, or having to respond
to clients who were unreliable or seen as untrustworthy,
manipulative or lacking in gratitude.

26. What did you do well in
this case?

27. Evidence of Clinic Effect
 Impact of dilemmas widened by class and Committee
discussion
 Resolution influenced by staff, other students, and
seminar reading and discussion, and Clinic generally
 [A r wo rking with d iffe re nt c linic m e m be rs a nd the CLP c la s s I
]fte
c a n a p p re c ia te tha t the re a re c irc um s ta nc e s o utwith the c lie nt’s
c o ntro l a nd Is ho uld no t jud g e the m by m ine o wn s ta nd a rd s .
(I la )
s
 Seminar discussion of tolerance an hour before client interview
inspired Patrick to do all he could to help client notwithstanding
that he considered him to be “untruthful a nd m a nip ula tiv e ”
 Two months later, after standing up to an aggressive opponent
Patrick stated that he had found it ‘e a s ie r to m a ke d e c is io ns o n
ho w to a c t m a inly d ue to the kno wle d g e Iha v e g a ine d thro ug h
the CLP c o urs e .’

28. Evidence of Clinic Effect
 Resolution influenced by staff, other students, and
seminar reading and discussion, and Clinic generally
 Faced with the option of using the ‘dirty trick’ in the sex
discrimination (autonomy dilemma 1) , Rebecca cites seminar
reading to justify using her morality to ‘filte r wha t Ifind to be
im m o ra l ins truc tio ns ’ a nd e ng a g ing c lie nt in ‘m o ra l d ia lo g ue ’
 Five weeks later, after discovering that the defenders had lied,
she methodically applied the contextual approach to ethics and
reversed her earlier decision, noting that her partner, who had
been taught ethics in the diploma ‘d id no t v ie w the m a tte r a s
inv o lv ing m o ra lity ’ and commenting that this was ‘a bla ta nt
e x a m p le o f the be ne fits o f the CLP/La w Clinic Ed uc a tio n ’.

29. Evidence of Clinic Effect
 Resolution influenced by staff, other students, seminars
and Clinic generally
 Fa c e d with c o nflic t o f inte re s t be twe e n he rs e lf a nd c lie nt (c o nflic t
d ile m m a 1 ), Re be c c a s ta te d : ‘The a ltruis tic e tho s he lp e d to
re info rc e m y be lie fs a nd a llo we d m e to fe e l c o m fo rta ble m a king a
s e lfle s s d e c is io n in a p ro fe s s io n s urro und e d by g re e d a nd s e lf-
im p o rta nc e . Witho ut the Clinic to s tre ng the n a nd no rm a lis e m y
be lie fs Id o no t kno w if Iwo uld ha v e ha d the c o ura g e a nd
c o nv ic tio n to a c t o uts id e the no rm . I the future , Iwill try to us e
n
the Clinic a s a n e x a m p le to jus tify a c ting a ltruis tic a lly ra the r tha n
s uc c um bing to p e e r p re s s ure . I this te s t o f c ha ra c te r. . . witho ut
n
the Clinic Iwo uld no t ha v e kno wn tha t whe n it c o m e s to it Ia m
a ble to p ut a s id e p e rs o na l g a in fo r the s a ke o f the rig ht thing ’
 N – this c a s e g a v e ris e to thre e e thic a l is s ue s (a uto no m y ,
B
ta c tic s , c o nflic ts )

30. Question based on diary
entry

31. What have you learned
from your case?

32. Evidence of the Clinic
Effect on Character
Development
 Eng e nd e ring fe e ling s o f s a tis fa c tio n o r re g re t a t the
c o nd uc t o f c a s e s
 After successfully completing an 18 month long case against all the odds,
Lindsay commented: To s a y the le a s t it wa s e x tre m e ly s a tis fy ing . . . Ino w
re a lly und e rs ta nd why p e o p le g e t s o m uc h fro m the Clinic o n a p e rs o na l
le ve l. I this c a s e Ig o t to he lp o ut s o m e o ne … who wo uld o the rwis e ha ve
n
be e n utte rly vulne ra ble to p e o p le fa r s tro ng e r tha n he rs e lf
 Moral exemplars
 Practitioner volunteer showed Isla that she ‘c a n wo rk in p riva te p ra c tic e
a nd s till a c hie ve he r ultim a te a im o f he lp ing o the rs ’ and for Seamus she
had acted as ‘a p o s itive ro le m o d e l to s tud e nts ’ a nd be e n ‘ins p ira tio na l
to m e fo r m y o wn c a re e r’.
 Patrick commented that one factor which helped overcome his distaste
for his client ‘was Donald’s “good nature” and commitment to social
justice...this motivated us to carry out research late into the night!

33. Evidence of the Clinic
Effect on Character
Development
 M nto ring a nd be ing m e nto re d by o the r
e
s tud e nts
 Sitting in o n a num be r o f inte rv ie ws Ifo und m y s e lf lo o king a t the
is s ue s in a m o re e thic a l m a nne r tha n Iim a g ine Iwo uld
o the rwis e . . . I a wa y , Iha v e fo und m y s e lf ha v ing a “m o ra l
n
a p p re ntic e s hip ”. (Vikram)
 See also comments by Patrick and Rebecca regarding
opportunities for moral influence and those of Isla:
 I believe that my entries show a change in my attitude towards
clients. For example in Week 3 I was adamant that it was above and
beyond the call of duty to show concern or compassion for my clients
however in week 8 I found that my new case partner shared the same
view which I used to possess. ... My partner’s view was very
pragmatic, ‘if the client doesn’t tell us all the information then that’s
their fault. .... When I explained to him that it wouldn’t be fair to judge
the client by our personal standards I realised that I no longer agreed

34. Evidence of Other Clinic
Effects
 Developing a Social Conscience
 Id id n’t s ta rt m y la w d e g re e to ‘m a ke a d iffe re nc e ’, m y g o a l wa s s im p ly to
e a rn e no ug h m o ne y s o Ic a n a ffo rd s o m e o f life ’s lux urie s a nd ha ve no
fina nc ia l tro uble s . Ho we ve r, ha ving s e e n the p o s itive e ffe c t m y tim e a nd
e ffo rt ha s ha d o n c lie nts o f the c linic ha s c ha ng e d m y p e rs p e c tive a nd no w,
m y ultim a te g o a l is to find a jo b tha t p ro v id e s bo th fina nc ia l s e c urity a nd a
c ha nc e to he lp c o m m unitie s o r le s s fo rtuna te ind ivid ua ls . (I la ).
s
 Be fo re m y e x p e rie nc e in the La w Clinic I im a g ine d a c a re e r in a la rg e la w
firm a nd ha d n’t re a lly c o ns id e re d the la rg e r id e a l o f s o c ia l jus tic e . . . . N w I
o
find it im p o s s ible no t to . (Ca llum )
 Influence on Career Choice
 Simply realise that want to devote career to helping others
 Give students tools to cope with moral difficulties of intended
career
 Realise moral difficulties too great to cope with

35. Evidence of Other Clinic
Effects
 Learning about justice
 ‘it appears...that the legal system is no longer fit for poor or
“average” people it appears more geared towards businesses
and the rich’. (Isla, whose client been turned down by 8
solicitors)

36. What did you most learn
from your clinic
experience?