An Examination of the Challenges , Successes and Setbacks for Clinical Legal Education in Eastern Europe

The authors first met in 2000, and have collaborated in conferences, workshops, and other projects since then� We also represent two sides of an international exchange that has frequently occurred in the past 15 years: a European law teacher who attends training sessions, networks with colleagues from other European universities, learns about American models of clinical education, and possibly receives some outside funding; and an American law teacher who is graciously hosted by Europeans, promotes American models of clinical education, and, one hopes, observes, listens and learns about the European system� We are also experienced teachers within our own universities and teach both clinics and more doctrinal courses� Finally we are friends and can be honest with each other�


International Yournal of Clinical Legal Education
their own models?
In the following sections we first discuss the history of clinical legal education in Central and Eastern Europe. We then focus on Croatia and Olomouc, Czech Republic, two examples of the ambitious but uneven development of clinical programs in Central and Eastern Europe. We next examine the experiences of clinical programs in countries of CEE and some of the challenges these programs have faced in achieving sustainability. We then use a comparison between the European and U.S. clinical program models as a lens for analyzing the experiences of the European programs and assessing the value of collaboration between European and U.S. clinical teachers. Finally, we offer some thoughts about the future of clinical legal education in Central and Eastern Europe.

II. History and Overview of Clinical Legal Education (CLE) in Central and Eastern European (CEE) Countries
Clinical legal education in Central and Eastern European countries emerged in the second half of 1990's. It first started on an experimental basis but in time it became an integral part of higher education programs in a number of these countries. 3 According to different sources, in only a few years, from 1990 until 1995, more than 100 clinical programs were established in the countries of CEE, including many in Russia 4 . Clinical legal education was recognized by law schools in the region as a teaching and learning method that actually prepared students to practice law. Further, the clinical method of learninglearning by doingwas a "breath of fresh air" in the otherwise typical atmosphere of the "classical" classroom lecture methods applied in most law schools in Eastern and Western Europe 5.
As discussed below, however, the development of CLE in Europe has been far from uniform. There are significant differences between CEE and Western Europe, as well as among the countries of CEE.

A. East v. West: CLE's Growth in CEE Countries and Its Failure to Take Hold in Western Europe
While Central and Eastern European countries accepted CLE with lots of enthusiasm, Western European countries were resistant to innovations involving the implementation of CLE 6 . Only a few clinical law programs have been established so far in Western European countries, notably in Id. at 828.

International "ournal of Clinical Legal Education
Second, all Central and Eastern European markets went through transition. So there was a strong demand from market forces for reforms and legal reforms in particular.
Third, the transformation, from a non-market to a market economy model, led to an increased need for free legal aid. A number of Central and Eastern European countries faced massive bankruptcies, lots of people were jobless, and some countries, like Croatia, were struck by war. Due to all of these factors, there was an increased demand to help the people in need, but the inherited model of free legal aid could not satisfy all of these needs. Civil societies institutions, who are currently also important free legal aid providers in CEE countries only started to develop at the time.
And finally, there was a whole new generation of law students who wanted change. They demanded more from legal education than faculties had previously provided for them.

B. Different Models of CLE in CEE countries
In addition to the different developments of CLE in CEE and Western Europe, there have been significant variations among the countries of CEE. Despite the fact that CLE appeared at the about same time throughout CEE, it did not follow the same pattern. What we notice, while exploring developments in CLE in different Central and Eastern European countries are peculiarities of CLE. Each country, and even the law schools within one country, have developed different models of CLE. While some countries and law schools unanimously chose the model of live client clinics, others accepted simulation clinics or the placement model ("externships"). This was surprising if we have in mind the fact that CLE in CEE was shaped and modeled with the help or assistance of no more than three U.S. partners, PILnet (formerly PILL), the Soros Foundation, and ABA CEELI 13 , and all of these funders specifically promoted the live client model.
The same phenomenon occurred in the context of clinical subject matter. Different types of clinics were established: constitutional law clinics, criminal law clinics, environmental clinics, business law etc. However, this is perhaps less surprising because the U.S. funders did not focus on any particular subject matter in the models they introduced.
This leads to several questions: given that these clinical programs were all based on similar U.S. models and benefitted from the same training and capacity-building efforts, why was a uniform model of CLE not accepted or developed in CEE? Is this diversity of models good or bad for CLE in CEE countries? What are the reasons for this diversity of CLE models?
There are several possible answers: a) The design of clinical programs often reflected the particular persons who conceived and developed a particular program. It was usually a particular person within the law school, not the law school as an institution, who created the clinical program.
b) Clinical design was often regionally or geographically related. Different Central and Eastern European countries were burdened with different problems, and these were reflected in clinical activities. For example, while some countries had an increased need for labor law clinics, others had a need for refugee clinics.

Issue 20 An Examination of the Challenges, Successes and Setbacks for Clinical Legal Education in Eastern Europe
c) There was also a lack of systematic approaches and strategies towards a more uniform concept of CLE in CEE. Even clinics within a single country did not cooperate on curricular development or clinical pedagogy or other aspects of clinic design. So the clinical movement in CEE in the 1990's can be, to some extent, characterized as an ad hoc approach. As discussed below, this might be the reason why a number of clinical programs failed within a short time.

II. Specific Examples: Croatia and Olomouc, Czech Republic
To provide illustrations of some of the general descriptions and conclusions presented above, we offer examples from Croatia and the Czech Republic. These are two countries with which we have experience, the European as a direct faculty participant and the American as an visitor and observer.

A. The Croatian Example: Four Schools, Four Different Experiences
CLE in Croatia has a short tradition. It started later than in other parts of CEE due to the fact that the country was at war. Therefore transition came somewhat later. Clinical programs in Croatia were, from the very beginning, recognized and well accepted by legal academics as a new teaching methodology which can enchance legal education. In a short time clinical programs became a part of the mandatory curricula at all four law schools, although clinical programs are carried out in each of the law schools in different ways.
The legal clinic established at the Faculty of Law in Zagreb is the country's only live client clinic. Other law schools apply the models of either simulation or placements.
Despite intensive clinical activitiy and affirmation of clinical programs as an accepted teaching methodology, clinical development in Croatia has not been without problems, some examples of which are particularly visible in the smaller law schools which are not located in the capital city. These problems are similar to those mentioned above.
They can be summarized as follows:

a) Staffing problems
Smaller law schools have a small staffing capacity. The situation is much better in the capital city.

International Yournal of Clinical Legal Education
In many CEE countries, including Croatia, clinics must hire private lawyers to supervise law students in the legal work they perform, because law professors are often not permitted to be practing lawyers. Finding and keeping involved a practicing lawyer on a stable basis is quite hard in smaller and poorer environments. Besides that, lawyers have poor or no knowledge of clinical pedagogy and methodology, which creates additional problems.
c) Ad hoc approach to organizing CLE Clinical activity in Croatian law faculties depends too much on one person. Faculties are not involved enough to take over the responsibility and incentive for clinical development.

d) Lack of teaching credit for clinical faculty
Since clinical programs are new, clinical teachers often get no credit for performing CLE. It is purely voluntarily engagement, which must be performed in addition to all of the other demands (heavy teaching responsibilities, Ph.D. studies, administrative duties) placed upon the faculty members who teach clinics. B. Olomouc, Czech Republicthe Flight of the Phoenix

e) Legislative restrictions
The first live client legal clinic in Central Europe was at PalackV University, Olomouc, Czech Republic. It was funded by the Ford Foundation in 1995-199716. However, this clinic was also one of the early failures, ending as soon as the outside funding stopped. Edwin Rekosh explains some of the reasons for this: "Arguably, those instances of failure were caused by some of the phenomena implicit in the pure export model; they were not sufficiently adapted to local conditions by locallybased champions working (when helpful) in long-term collaborative relationships with foreign partners."' 17 Rekosh goes on to discuss the demise of the Olomouc clinic: Certainly, this was the case with the initial experiment at Palacky University in the Czech Republic supported by the Ford Foundation. The initial local champion of the project, who had been dean of the law school at the time, passed away. The clinic director that his successor had appointed to run the project, a local bar advocate, treated her position supervising the students in the "live-client" clinic as an ordinary job and had no vision for or interest in what the clinic might become .... The foreign partner in the project interpreted the deficiencies of the start-up initiative as stemming from a lack of commitment by the local partner to core public interest values. 18 Rekosh concludes that these problems were not limited to Olomouc: "No doubt many of

Issue 20 An Examination of the Challenges, Successes and Setbacks for Clinical Legal Education in Eastern Europe
the initial clinical projects supported by foreign donors were seen even more cynically by local actors as vehicles for bringing in much needed financing to resource-strapped state universities."

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And yet, after this initial failure, the Olomouc clinic has since come back to life stronger than ever, with several different clinics, many of which are live client models, as well as an introductory lawyering skills simulation course, classes on legal ethics, and an energetic and innovative teaching staff who participate actively in international conferences.

IV. Evaluating the Experiences of Clinical Programs in CEE: Common Problems Which Different Clinical Programs in CEE Countries Have Faced
The experiences in Croatia and the Czech Republic provide examples of some of the challenges facing CLE in CEE, as well as the possibilities for overcoming these to develop strong and sustainable programs. Evaluated in general, and from a distance in time of some 15 years, the CLE programs that started in CEE in the 1990's were a great success. This is especially true in Poland, which is the "gold standard" for European clinical education programs. Law clinics exist in law faculties throughout Poland, and clinical faculty meet in national and regional conferences.
In addition, clinical educators in Poland have developed an extensive set of materials to support CLE.

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But the success has been uneven. The authors have attended many clinical teaching conferences in CEE and have observed that after a successful beginning, a number of clinics faced failure within a short period of time. On the other hand, a number of other clinics, established at the same time and in similar circumstances, experienced great success. This situation again raised the question: why do some clinics tend to be very successful and other clinics fail?
The exact reasons are unknown because there is no study which tracks the various clinics that were started in the 1990's and shows how many of these clinics have been closed. But most of the available information suggests the following problems which are common to many clinics which faced failure: poland-buildine-institutional-will-for.html. See also, Rekosh, supra note 3, at 90-92.

a) Funding
Loss of outside funding frequently resulted in decreased clinical activities. Many law faculties were not prepared to take over funding responsibilities once foreign funders withdrew.

b) Staffing problems
It is very typical for CEE law schools to have too many students compared to the number of teaching staff. This also caused problems in the context of clinical education. There were often too few university teachers who could participate in student supervision and assessment.

c) Legislative barriers
Within the universites of CEE there is a wide lack of support and incentives to make the necessary legislative changes to the educational process that would create a system in which CLE is a presumed component of the law curriculum.

V. Comparisons Between the European and U.S. Experiences
In examining this uneven history of CLE in Europe, it is useful to compare the European programs with those in the U.S. 22 As noted above, start-up funding for the European programs was provided by U.S. donor organizations, and much of the technical support and training was provided by U.S. educators. The U.S. has a 40 year history of CLE, and many of the European programs were based on successful U.S. models. Why, then, have the results been so mixed?
This question prompted an engaging and enlightening dialogue between the authors. We have observed that although the Bologna Process is moving the European system of law and legal education closer to that in the U.S. 2 3 , the fundamental historical and cultural differences between the civil and common law systems continue to have an effect. 24 In Europe, CLE -and interactive education more generally -has to be incorporated into the prevailing, traditional, lecture-based doctrinal model of education.
The challenge is not in adding clinics formally to this traditional curriculum. In most CEE countries, clinics are, in fact, part of the curriculum, because the relevant governing educational body would not otherwise allow them to be taught. In Croatia, for example, if a faculty wants to teach a legal clinic, the faculty must write a detailed proposal for the clinical course and seek formal approval from the governing body. This is true of other CEE countries as well, because public universities are the prevailing model.

Issue 20 An Examination of the Challenges, Successes and Setbacks for Clinical Legal Education in Eastern Europe
Therefore incorporating clinics within the CEE curriculum is not the primary obstacle to be overcome; rather the challenge to successful implementation of CLE in the region is that clinics lack respect from the majority of law professors, who are traditional in their views and resistant to change. They generally oppose curricular reform, particularly with respect to educational content and teaching styles.
A related challenge in Europe is an underdeveloped clinical pedagogy and the lack of a clear curricular design. Students often do not receive academic credit for their work, and clinical seminars frequently operate without a set curriculum, syllabus, or teaching materials specifically designed for clinical courses. It will take time to develop clinical pedagogy in Europe. It appears that only Poland has managed to do that to some extent.
One area in which the U.S. has a clear advantage over most European countries is that the U.S. curriculum is more flexible. Because the courses in the U.S. common law system are not typically compulsory after the first year, course offerings and teaching methods tend to be fluid and varied. Thus, there is room in the curriculum for clinical courses, offered for many credits ('/2 of a student's total semester credits is common), with an extensive syllabus, ambitious curriculum, and well-developed materials, sometimes including textbooks specifically designed for these programs. The American clinical course is therefore a complete "package" of substance, skills, values, and experiences. This is not generally true of European clinics, because the time and space for clinics needs to be "borrowed" from other parts of a set, formal curriculum. European students therefore get only part of this educational "package" in the clinics they are able to take.
There are at least six, less fundamental, differences between the European and U.S. experiences with CLE. First, there are still relatively few live client clinics in European universities 25 . Is it important that clinics have live clients, or are interactive simulations and project-based clinics equally valuable in the European educational context? Much of this is a function of sheer numbers of students. Even in universities with live client clinics, demand tends to exceed available opportunities even more than in the U.S. because of larger class sizes. For example, in Osijek, Croatia, a small school, three instructors in one academic department are responsible for giving lectures, examinations, etc. to 1,200 4th year students.
Second, the legal assistance provided to clients in European clinics tends to be shorter term than in the U.S., with a focus on the one-time giving of advice or drafting of legal pleadings or other documents. In this way European clinics resemble some limited scope "unbundled" pro bono programs in the U.S. One practical reason for this is the length of court proceedings. Even the simplest cases usually last longer than an academic year, and students do not want to continue their involvement beyond the academic year.
Third, among the most interesting differences we examined is the focus of the clinics in the two systems. European clinics tend to focus less than U.S. clinics on the dynamics of the attorneyclient relationship, including interviewing and counseling skills and developing a relationship of empathy with the client. The focus in European clinics might be described as being more on "solving the case" than "understanding the client." 25 There are no reliable data about the number of legal clinics in Europe in general, and in particular about the breakdown among types of clinics, e.g. the number of live client clinics. Perhaps this situation will improve with the establishment of ENCLE ( European Network for Clinical Legal Education). See: http://www.uc3m.es/ nortal/tiase/tortal/instituto derechos humanos/sala prensa/comunicados de prensalencle.pdf.

International Yournal of Clinical Legal Education
Solving cases rather than getting to know the client is not specific to the clinics, howeverit is the typical approach of practicing European lawyers. In other words the clinics are reflecting actual practice, which is arguably what they should be doing.
This observation has significant implications for cross-cultural work. Many of the clinical training sessions provided by PILnet, ABA-CEELI, and other U.S. organizations for European law teachers have focused extensively on teaching interviewing and counseling skills on the theory that these skills are essential to effective lawyering. However, it may be that these skills are relatively unimportant in European law practice and that a focus on these skills in clinical development work is therefore misplaced.. The European author's own experiences appear to support this conclusion; she noted that she had found this aspect of the training sessions she had attended relatively unhelpful.
Fourth, related to this lack of focus on the attorney-client relationship, education in ethical issues is not typically part of the European clinical curriculum (but it is not part of the non-clinical curriculum either). Where ethics courses exist, they tend to be taught in a code-centered lecture format, rather than the interactive problem-based model that is more common in the U.S. PalackV University in Olomouc, Czech Republic is an exception, because it offers an elective, interactive ethics course, which is taught by one of the clinical faculty members. This course is beginning to be replicated in other Czech universities.
Fifth, in some European countries, especially those in which professors are not allowed to practice law, clinics must contract with practitioners for court representation of clients. There may be an educational gap for the students if the practitioners are not trained in clinical pedagogy and included in faculty discussions of such pedagogy.
Sixth, European countries do not generally allow for student practice in courts and administrative proceedings. (The Republic of Georgia is one exception to this.) Related to this, it is not clear to what extent attorney-client confidentiality applies to law students who meet with clients in law school clinical programs.
All of these differences need to be taken into account in structuring effective collaboration between European and U.S. colleagues. As discussed below, future collaborations should focus more on supporting the new European models of clinical education rather than replicating U.S. models.

VI. Reflections About the Future of Clinical Legal Education in Central and Eastern Europe
After the first wave of funding and consultants ended, many European clinical programs did not survive, suggesting that clinical education might not be sustainable in the long-run without outside funding. However, the good news is that the support provided in the 1990's and 2000's by outside organizations (Ford Foundation, ABA, OSI, PILnet, etc.) planted seeds of "human capital" -the law teachers and students who attended the conferences and workshops have become an energetic new generation of clinical educators. In addition, Bologna and other European educational reforms have stimulated the introduction of graduate law programs. These graduate students -especially Ph.D. students -are often themselves products of the new clinical education programs, and they have taken on important teaching roles within the clinical programs. This "human capital" may ultimately be a more important factor than outside funding in achieving sustainability for clinical However, in thinking about the future it is important to distinguish among three main goals of CLE and tensions among them. Clinical scholars typically identify the following goals: creating social change by giving disadvantaged groups access to legal services; making experiential courses mandatory so that all students are better prepared for the profession they will be entering; and providing students with a "live client" experience.
It is hard, if not impossible, to do all three of these things in existing European systems, and it may not be realistic to think that all three goals can be achieved. Live client clinics require a lot of resources, so they will have to be limited to a small number of students. It is probably more realistic to offer simulation clinics, which can be provided to larger number of students. To the extent that live client opportunities are offered, the best way to give the largest number of students this opportunity is to give them short-term cases involving limited scope representation, e.g. advice-only or drafting of pleadings. But these cases will probably not do much to create social change, because social change cases require full representation over an extended period of time.
So it is important for law faculties to be realistic and honest about their goals. This may require them to choose among possible objectives.
Contrary to conventional wisdom, the major obstacles to sustainability of clinical programs may not be a lack of funding. It is, of course, easier when one has funding, and many schools failed to pick up responsibility for funding clinics when outside funding dried up. But since clinics must, for the reasons discussed above, be formally approved and integrated into the law school curriculum, they have space and equipment.
The bigger challenge is maintaining the necessary "human capital." In the European system of legal education, contrary to the U.S., clinical faculty are burdened by the pressure to achieve academic advancement in a short period of time -LL.M, Ph.D, all within 6 years. In addition, early in their careers, European law teachers have substantial departmental responsibilities. They carry significant substantive course teaching loads, administrative duties, and responsibilities for assisting and supporting senior colleagues. (In addition, these senior professors will influence the promotion prospects of their junior colleagues.) Finally, they usually do not receive any credit for teaching clinics. So, European law teachers who would otherwise like to teach clinics are often faced with the need to give up activitiessuch as clinical teachingwhich are not important for academic advancement. That is probably one of the reasons why a number of clinics failed in Central and Eastern Europe.