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  • By Sara Sánchez

Legal Clinics and Transactional Lawyering in Spain


1. The awakening of clinical legal education in Spain

As it is well-known, Jerome Frank’s article “Why not a clinical-lawyer school?” revolutionized the way law was taught at law school in the US from then on. [1] The author challenged the traditional education purely based on the “law on the books” and claimed that, as in medical schools, future lawyers need to learn by having hands on experience. Any theoretical approach must be complemented with practice.

Clinical education soon expanded in US. Currently, almost all law schools have more than one legal clinic. [2] In fact, the teaching of law is not anymore conceivable without legal clinics. The phenomenon rapidly crossed borders and clinical methodology was also adopted by law schools in other Anglo-Saxon jurisdictions, in Asia, Latino America and Eastern Europe. The exception has been for many decades Western Europe (the “last holdout”, in the words of Professor Wilson). [3]

In the last few years, however, the situation has apparently changed in many –albeit not all- [4] Western European countries, among which Spain. Over 17 legal clinics are at present operating at Spanish law schools. The awakening of the phenomenon seems to be related to the so-called Bologna Process, [5] which has deeply impacted teaching methodologies in Europe. As a result, many institutions have incorporated clinical legal education as part of their curriculum, yet following different models which depend on the particularities of each law school. The focus is however on transactional lawyering.

Moreover, the parallel expansion of pro bono practice in Spain in the last years has also contributed to the rise of many legal clinics. [6] The synergies between both are confirmed by practice, as further explained below.

2. Transactional legal clinics: models and goals

As elsewhere in Western Europe, legal clinics in Spain have developed closely intertwined with the features of each institution, in terms of expertise of the law school and students profile. [7] This ad hoc approach is in principle positive for all players involved: the scope of the work is better designed, students are more engaged, and, as a result, the social impact attained is greater.

The IE Legal Clinic case, in which I am involved, clearly illustrates the point. In spite of being born as a business school, IE has transformed into a multidisciplinary institution while retaining its entrepreneurial spirit. In this context, undergraduate programs follow a comparative law methodology and, accordingly, law students have an international profile. The approach followed in clinical legal education is consistent with these elements: a transactional legal clinic focused on social entrepreneurs and non-profits, mainly involved in multi-jurisdictional cases. The students are supervised by professors and/or by practicing lawyers at law firms, which partially channel their pro bono practice through legal clinics, among which IE’s.

Transactional legal clinics seek to achieve two main types of goals. On the one hand, they have a pedagogical objective in the broadest sense. Indeed, as mentioned above, the initial introduction of legal clinics in Spain is linked to such pedagogical dimension as experimental learning methodology.

Firstly, clinical legal education is of course deployed to teach substantive law. The students learn to apply their theoretical knowledge to a real case. In IE Legal Clinic case, students often deal with cross-border cases, where they have the opportunity to put into practice the comparative approach followed in their program. Nevertheless this is not the main value of legal clinics but rather to expose students to different situations, which teach them a whole set of soft skills, essential to any lawyer. In our experience, one of the most relevant lessons refers to the relationship with the client. As a starting point, the students work together with their supervisors in translating the client’s needs into legal terms. Particularly, when the client is not a sophisticated player, this requires the ability to define the scope of the work and frame the question from the legal perspective.

In addition, the proximity with the client, typically an entrepreneur with a disruptive approach to its area of activity, helps opening students’ minds. [8] Where innovation plays a relevant role, the students learn how to do things in a different way and get familiar with a whole different world of possibilities for future jobs –and not just becoming practitioner at a big law firm-.

Finally, students learn the importance of pro bono. Only a decade ago, pro bono practice was still emerging at law firms in Spain and rather absent among the interests and concerns of law students. The rise of pro bono practice has contributed to the widespread of legal clinics in Spain, which in turn has enhanced the law students’ awareness in this regard.

On the other hand, transactional legal clinics seek to have a social impact. This is an objective that has recently been questioned by certain clinicians involved in transactional legal clinics. [9] However, in our opinion, social entrepreneurs as well as non-profits are also drivers of social change both for the way in which they do things and because of the kind of activities in which they engage. Thus the activity of a legal clinic supporting their needs have a positive social impact.

3. From the general to the specific

Any discussion regarding legal clinics is benefited by specific examples. The following two serve to illustrate the above issues.

One of IE Legal Clinic’s clients last year was an innovative start-up, whose main goal is fighting against fake news. Their main activity consists of verifying the information and disclosing the existence of fake news, if any. In this context, the client was interested in understanding the legal framework for fake news in Spain, in terms of liability arising thereof, and the differences in the regulation in the US, UK and France. Once again this illustrates how a legal clinic and the cases covered by it match the profile of the institution and students, here by benefiting from a comparative approach.

Another example, in which the students’ task was different, is the case of a social entrepreneur which runs an on-line incubation software for entrepreneurs to develop their business together with a mentor. Based on the information that entrepreneurs provide in their application, they are matched -taking into account language, interests, and expertise- with one of their mentors who provides insight and feedback throughout the business development process.

According to the client, geography is the largest barrier for entrepreneurs not located in major innovation hubs. The client bridges such gap by providing an online incubator that connects early-stage start-ups with training and mentors at an affordable price. Therefore the driving force under the project was to democratize access to entrepreneurial resources. Ultimately this would impact each of the entrepreneur’s communities.

In this case, the students were involved in contract review, in particular of the mentorship agreement. Given the international reach of the Internet, the client’s project had of course many cross-border implications. The students drafted a report on dispute resolution, data protection and applicable law aspects, considering a number of jurisdictions to which the activity is most closely connected.

Notes:

[1] Frank Jerome, ‘Why not a clinical-lawyer school?’,[1933] 81 University of Pennsylvania Law Review, 907.

[2] Richard J. Wilson, ‘ Legal Aid and Clinical Legal Education in Europe and the USA: Are they Compatible?’ in O. Halvorsen Ronning and O. Hammerslev (eds.), Outsourcing Legal Aid in the Nordic Welfare States, (Palgrave McMillan, 2018), 280.

[3] Richard J. Wilson, ‘Western Europe: Last holdout in the worldwide acceptance of clinical legal education’, [2009] German Law Review, 10, 823.

[4] See the example of Nordic States where clinical education does not seem to be integrated, Olaf Halvorsen Ronning and Olev Hammerslev, ‘ Outsourcing Legal Aid in the Nordic Welfare States’ in O. Halvorsen Ronning and O. Hammerslev (eds.), Outsourcing Legal Aid in the Nordic Welfare States (Palgrave McMillan, 2018), 321

[5] Maria Marquès i Banqué, ‘Spain: The Environmental Law Clinic’ in A. Alemanno and L. Khadar (eds.) in Reinventing Legal Education. How Clinical Education is Reforming the Teaching and Practice of Law in Europe (Cambridge University Press, 2018), 96 et seq.

[6] Maria Marquès i Banqué (n. 5), 98

[7] Wilson (n. 2), 282.

[8] See in the same vein Janet Thompson Jackson and Susan R. Jones, ‘Law & Entrepreneurship in Global Legal Education’, [2018] 25 International Journal of Clinical Legal Education Nº 3, 85, 92-93.

[9] See Thompson Jackson and. Jones (n. 8), 107, with further references.

About the Author:

Sara Sánchez is Assistant Professor at IE University and Co-director of the IE Legal Clinic at IE Law School. Her fields of expertise are corporate law, capital markets and insolvency law from a conflict of laws perspective.

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