Legal Clinics and Transactional Lawyering in Spain

Author: Sara Sánchez, IE Law School Professor and Co-Director of IE Law Schools Legal Clinic

As 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 traditional education purely based on the “law on the books” and claimed that, as in medical schools, future lawyers need to learn through hands-on experience. Any theoretical approach must be complemented by practice.

Clinical education soon expanded in the US. Currently, almost all law schools have more than one legal clinic. ^[2] In fact, the teaching of law is no longer 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, Latin America and Eastern Europe. But for many decades Western Europe has been the exception (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, including 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 according to the particularities of each law school. However, the focus is on transactional lawyering.

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

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 law school expertise and student profiles. ^[7] In principle, this ad hoc approach is 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, in which I am involved, clearly illustrates the point. In spite of being launched 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 clinical legal education approach adopted 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, who partially channel their pro bono practice through legal clinics, including the IE facility.

Transactional legal clinics seek to achieve two primary 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 an experimental learning methodology.

Clinical legal education is, of course, primarily deployed to teach substantive law. Students learn to apply their theoretical knowledge to real cases. In the IE Legal Clinic, students often deal with cross-border cases, where they have an opportunity to put into practice the comparative approach followed in their program. Nevertheless, this is not the main value of legal clinics, which are designed to expose students to different situations and thus 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, students work collaboratively 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, this proximity with the client, typically an entrepreneur with a disruptive approach to their sector, helps to open student minds. ^[8] Where innovation plays a relevant role, students learn how to do things in a different way and become familiar with a whole different world of future job possibilities – thus looking beyond just becoming a 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 from the interests and concerns of law students. The rise of pro bono practice has contributed to the widespread appearance of legal clinics in Spain, which in turn has enhanced law students’ awareness in this regard.

On the other hand, transactional legal clinics seek to have a social impact. This is an objective which 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 because of the way they do things, and because of the kind of activities in which they engage. Thus the work of a legal clinic supporting their needs also has a positive social impact.

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 involved verifying 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 regulations applicable in the US, UK and France. Once again this illustrates how a legal clinic and the cases it covers matches the profile of the institution as well as the students, who here were able to benefit from a comparative approach.

Another example, in which the students’ task was different, is the case of a social entrepreneur running on-line incubation software for entrepreneurs to develop their business in collaboration with a mentor. According to the information entrepreneurs provide in their initial application, they are matched with one of the company’s mentors – taking into account language, interests, and expertise – who will then provide insight and feedback throughout the business development process.

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

Here, students were involved in contract review, and mentorship agreements in particular. And given the international reach of the Internet, the client’s project of course had many cross-border implications. Students drafted a report on dispute resolution, data protection and aspects of applicable law, taking into account a number of jurisdictions to which the activity was most closely connected.

Article published in Legal Business World

Professor Sara Sánchez has been teaching and researching at Universidad Rey Juan Carlos and Universidad Autónoma of Madrid from 2008 to 2013. From 2014 and until 2016, she has been in practice as a lawyer at the law firm Uría Menéndez, specialised in IPOs. Together with this, she worked as corporate governance and company law counsel to Spanish listed companies.

Note: The views expressed by the author of this paper are completely personal and do not represent the position of any affiliated institution.

[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.