Questions and criticisms to the idea of a legal transplant through the

legal clinics by a reform of legal education in Colombia: improvement of

legal education or imposition of a model of American colonial
character?1

Gustavo Adolfo Higuita O2

Abstract
Colombian legal education model has a particularity when talking about methods
and practical training; it is characterized by an assistance sense of the legal
profession and in consequence, law schools provide free legal aid services as part of
the teaching/learning process. The model presents two different figures that pretend
to develop the objective: consultorios jurídicos and legal clinics, both have a
common original idea but they differ in the way they were settled in legal education.
The consultorios jurídicos were born in the 70’s by a legal regulation reforming legal
education, inspired by the American legal clinics and since, it has been the law the
one that establishes and controls their operation. In 2000, public interest legal
clinics appear in the scene, aiming to reform legal education and to produce
structural social changes; and as they seem to be an excellent way to impact society
and to train future lawyers, Colombian academy has been thinking about reforming
the ancient structure, consultorios, by merging them or replacing with legal clinics
or by regulating legal clinics as it’s have been done with consultorios. In this paper
we want to show why both solutions would be a mistake.

Key words: Legal clinics, Legal education in Colombia, Legal aid services.

Introduction
As an American law schools tradition, legal clinics are thought as an innovative
model of legal education, unfortunately, this vision pass over the existence and value

1
This paper was presented at the annual meeting of the law and society association, Toronto 2018.
2Associate Professor, Director of Public law at Legal Aid Public Service and Clinic (Consultorio
Jurídico Pio XII) at Universidad Pontificia Bolivariana, Medellín, Colombia. Contact,
gustavo.higuita@upb.edu.co
of other models that also tend to strengthen the development of competences by the
“learning by doing” method and the practical teaching of law, like for example, the
public legal aid service named Consultorio Jurídico, a mandatory practice for all law
students in Colombia, a figure that some precursors and promoters of legal clinics,
intend to replace by proposing a legal education reform, under the pretext of
improving legal education.

The story of legal clinics transplant in Colombia, as it will be explain in this paper,
has two mains moments but we can say that the second one, at the beginning of the
21st century, has a relevant importance because of the method that was used and the
reasons that were given to promote their establishment in legal education. Different
interactions between the Colombian and North American legal academics proposed
legal clinics as a reaction to the typical formalism, present on most of the
Consultorios Jurídicos that existed already in the country (Bonilla Maldonado,
Recalde, & Luna Blanco, 2017), and as a way to deal with the limits imposed to the
traditional assistance model of free legal aid services provided by law schools. Legal
clinics aims to contribute to the solution of structural social problems by applying a
new methodology of practical teaching of law, facilitating the acquisition of adequate
tools to defend human rights (Cavallaro & Elizondo García, 2011); bringing students
closer to their social reality and promoting in the students the social and ethical
responsibility in the exercise of the legal profession.

The consultorios jurídicos were created by law in 1971 establishing that law schools
would organize, with the students of the last two (2) academic years; this kind of
legal aid service would require approval of the respective Superior Court of the
Judicial District. They will work under the direction of designated professors or
popular lawyers and should act in coordination with them in the places where the
service were established. The students would be lawyers for the poor people,
condition that should be proved and the law determined the way the service should
be provided and the topics or matters where the students could act as lawyers.
In 2.000, as a result of law schools’ academic practices and the interactions between
the Colombian and North American legal academics, public interest legal clinics,
emerged. These were thought like spaces to improve legal education by transforming
the practices of law students, but they did not appear as a consequence of a legislative
or regulatory change, in fact, legal clinics are not expressly regulated in the same
laws that regulate consultorios jurídicos, they are not regulated at all.

This paper aims to question and criticize the idea of a legal transplant from the
United States of America to Latin America or “The new American legal colonialism”,
which consists in the increasing influence in the legal systems, justice administration
and legal education, as result of the Law and Development movement across the
region. In other words, we want to make a critical reflection about the legal
transplant of legal clinics by reforming the legal education in Colombia, trying to
figure if it is really an improvement in legal education or is just a requirement to fit
an American standard.

In this order of ideas, it is important to explain, first, what consultorio jurídico is,
emphasizing on its dual role of helping and teaching. On one hand, it helps poor
people to have access to justice and to defend their rights, while on the other hand,
it tries to teach future lawyers through real practice. Second, it is necessary to
compare the two models, highlighting the advantages and disadvantages of each one,
to finally conclude that suppressing the Consultorios Jurídicos to legal clinics cannot
be considered as an improvement of legal education in Colombia but as an
imposition of an American model of colonial character.

I. Consultorio Jurídico vs Legal Clinics

A. Consultorio Jurídico, a short story (60’s)

Context, In the decade of the sixties in Colombia judges and lawyers have a bad
reputation, the people was thinking they are not very qualified from a moral, ethical,
and professional point of view. The rule of law and the justice administration was
very formalistic, the system in general was no working, not progressing and it was
constituted an obstacle for the defense of rights, finding of justice and the economic
development.

From the other side, the law and development movement comes to Latin America
through the USAID and the Ford Foundation, among others, they advocate for the
adoption or the transplant to the legal clinics in Latin America, as a way to improve
legal education, hoping to transform the legal system from its base.

In Colombia, in the seventies, the Consultorio Jurídico was born trough a legal
reform of legal education, inspired by the American legal clinics, as a result of an
agreement between the American and Colombian political and legal elites to
transplant the figure and settle the “legal practices that would allow them to face,
together with other legal products, the problems of social justice and economic
development that all liberal democracies have, including the Colombian one”
(Bonilla Maldonado, Recalde, & Luna Blanco, 2017, pág. 38).

In particular, the consultorios jurídicos would help to address the deficit in

the materialization of the right of justice to people with low socioeconomic
resources that Colombia has had and that the United States had previously
faced. In the same way, these academic institutions could attack the
weaknesses of an educational system that reproduces a formalistic concept of
law, which had become an obstacle both to economic prosperity and to the full
inclusion of all members of the political community (Bonilla Maldonado,
Recalde, & Luna Blanco, 2017, pág. 38).

From the moment the consultorios jurídicos were created through the law, they were
granted a formalistic character that was in opposition to the inspiration, motivation
and the context in which they were generated. The Law, mandatory for all law
schools, produced the figure of “poor people lawyers” and imposed the delegation of
some state’s obligations, such as the access to justice for poor people at legal aid
services, where law students were in charge of their representation.

The consequent implementation of the figure as a legal practice directed by

attorneys, without any research and academic knowledge, produced a fast loose of
memory of its origins and purposes, transforming them (consultorios jurídicos) into
a totally different figure than the legal clinic model from the United States. In the
best of scenarios, they become a legal aid service for poor people; thus becoming
"poor people lawyers", placed conceptually far from critical law processes and
establishing, in contrast, spaces that learn and reproduce formalities and rituals
from the judicial system, without generating any change.

Nevertheless, even if this was not the idea with the transplant, it appeared to be very
useful in a country like Colombia, with a deep deficient State, with one of the highest
rates of poverty concentration in Latin America and almost, eight million victims
from the arm conflict, legal aid services led by consultorios jurídicos seems to be the
way to access to justice and fight for their rights.

We want to stand out that the problem with the transplant was not the model itself
but its creation by the law (legal imposition) and the tendency to become
(assistentialist) an assistance program that instead of satisfy the legal
education/learning needs, it covers the State deficiencies, creating a model that looks
more like a state office than an academy unity.

B. A “new” idea (2.000) Public interest legal clinics

In the early 2000s, a “new” idea came to Colombia: the Public interest legal clinics,
that emerged as a result of new exchanges between the Colombian and American law
schools, sometimes promoted by the USAID. Public interest legal clinics arrived as
an innovative method of teaching/learning law, that aims to problematize reality,
using many research tools that allow to develop, on one side, an intense (reinforced)
academic activity with, on the other side, a strategic litigation, through the selection
of high impact cases, lobbying actions and teaching people about their rights; looking
to impact positively the system, hoping to achieve structural changes that will make
possible to transform the legal system and the institutions in order to get the desired
development.

Throughout these years, the Clinics have been gaining more and more place in law
schools, having an increasingly and better acceptation by teachers and students. The
constant promotion of the figure by USAID, in agreement with American universities
like University of Minnesota3, for our experience, spreading its benefits and profits
both for legal education and society, have pierced so much that we can say that a real
movement has been generated.

The legal clinics show in their publications, the results of the relevant cases on the
national context, for example, in Medellin, the case about a tree coting-down, known
as the “green tunnel”, where an environmental group set a class action, to avoid
(suspend for the moment) the construction the 2B section of Metroplús, a mass
transit system, action promoted by a legal clinic. Or the case of La Picacha, a gully
needed to be declared and treated as a Microbasin and because of local
administration ineffectiveness the neighboring community was suffering overflows
and health problems, so a legal clinic (University of Medellin), representing the
community, filed a class action seeking the administration to develop the projects
according to the microbasin plan (Por los Derechos Humanos, s.d.). As we find also
reference to others cases related to disability issues and human rights defense.

However, this important development has somehow entered into conflict with the
consultorios jurídicos, because, in some way, the legal clinics have begun to supply

3 The Colombia-US Human Rights Law School Partnership Program (hereinafter the Program) is a
three-year initiative aimed at improving education and training in human rights in law schools, and
promoting a culture of acceptance and respect for human rights in Colombia. Funded by the US
Agency for International Development Mission in Colombia (USAID/Colombia), it supports three
partnerships in Antioquia, Valle de Cauca and in the Caribbean Coast; in Antioquia, between the
University of Minnesota-Twin Cities (UMN) and a consortium of four universities (Universidad de
Antioquia –UDEAN-, Universidad de Medellín –UDEM-, Universidad Pontificia Bolivariana –UPB-,
and Universidad Católica del Oriente –UCO-). The Program has been managed, closely supported
and monitored by HED.
the historical deficiencies of the second ones; and with that we mean not to tackle
structural problems, leaving out the practice the research processes, not thinking law
problems, not having a clear methodology of intervention, and their real influence
on legal training.

This “new” figure has been so relevant and its promotion and influence so strong,
that it has been even thought, in eliminating the consultorios jurídicos or
transforming or merging them with the legal clinics, which leaves us with two
problems, on one hand, eliminating consultorios jurídicos would mean the loss of
the legal aid system and the direct help given to poor people, which has been fulfilled
for almost 50 years by the consultorios, and that clinics cannot supply by their very
nature; and on the other hand, this reform is intended to be done by law and that
would end up making the same mistake of establishing a regulation (law) that makes
legal clinics to lose their nature, tying down legal them to the same limits or borders
that were placed to the consultorios. It would end, in short, with both, consultorios
and legal clinics.

II. A new transplant

A. A perfect storm: the crisis of Justice administration

At this moment, Colombia is having a deep institutional crisis because of the lack of
public institutions’ morality and perhaps, the most severe crisis in justice
administration history. The most harmful case is the one concerning three of the
Supreme Court criminal judges, accused of “selling” judicial decisions, but the worst
is that they have done that in association with the highest prosecutor against State
corruption (Clavel, 2017).

These unfortunate events have seriously affected the public opinion credibility and
confidence on institutions, specifically on justice administration, the high courts,
judges and lawyers. Surprisingly, in the middle of this chaos, one of the quickly
solution given to this problematic was that, as they were all lawyers, the problem lies
in the education they must had received at law school, as if was not the government
or judicial practices that contain the poison of corruption, but the law schools. This
makes the perfect storm for a legal education reform.

As an example, Germán Navas Talero (2018), a Colombian Congressman, said "one

of the most serious problems in the country is, precisely, the weakness of its judicial
system, derived in large part by the terrible preparation by those who are graduating
from the law schools in the country. Do not forget that judges and prosecutors are
also lawyers, and the mistakes they make are caused by gaps in their training”. This
was the reason for a bill that aims to create another (new) exam to be approved by
law graduates to be able to be an attorney (Navas Talero , 2018).

All of these ideas are part of a new “aristocratic and elitist movement” promoted by
Professors Garcia Villegas and López Medina, that claims to return lawyers their
prestige and reputation through legal education reforms. In that sense, Professor
García Villegas affirms

Forty years ago, lawyers in Colombia enjoyed great social prestige, such as
doctors and priests. The law school were relatively few and all (public or private)
had a good reputation. Lawyers were seen as an educated people, who knew many
things, especially social, ethical and political issues; and since they were few and
well prepared, they formed a kind of legal aristocracy that protected itself with
ethical and social self-regulation.
All this began to change in the 70s, and especially in the 90s, with an accelerated
growth of law school, which brought, with an uncontrolled democratization, the
entrance to the profession, which in turn triggered a substantial loss of the quality
of the studies of law and a diminution of the legal culture and of the justice
(García Villegas, 2018 ).

In addition to this, an old discussion about reforming the consultorios jurídicos has
reappeared. The Colombian association of law schools -ACOFADE- has been
advocating for a legal reform that substantially expanded the purposes, functions,
activities and competencies of consultorios jurídicos, (Molina Betancur, 2013).

Based on a research done by ACOFADE, students had showed a generalized

unwillingness of being an interne in the consultorios jurídicos, wanting to opt for
other modalities such as working in companies, courts, notaries, etc. where they are
offered, among others, the possibility of a paid contract. Another fact, is that the
most important problems treated in consultorios jurídicos are not discussed in the
classrooms or studied in the research centers, which shows the distance between
them and the law schools, and the academy in general (Molina Betacur, 2016).

The main problem is that the reform proposed, pretends to regulate the public legal
clinics too, with the excuse to improve legal education; which in our opinion, would
be to repeat (once again) the same mistakes made by the previous transplant of the
legal clinics figure.

B. Improvement or Imposition of a model?

As we have shown, the legal regulation of the clinics could not be considered as an
improvement of legal education, because the experience with the implementation of
consultorios juridicos, has evidenced that such regulations do not really tent to
improve the legal education but to supply the interests of the State itself. In other
words, the worst thing that could happen to legal clinics is to fall under State
regulation because that will only restrict and make them to lose their nature.

The interesting thing about the second wave, is that it was not by imposition but by
promotion and support, which created a real movement of transformation; the
problem is that this movement ignored the background of the transplant and the
formalist context of reception. In addition to this, it also disregarded the value of
other existing figures like consultorios juridicos, that is why fostering the figure in a
country like Colombia, where it is considered that a law can solve any problem, had
a tendency to regulate legal clinics by the State.
In conclusion, why regulation of legal clinics is not it an improvement? Because it
would be, as it has been explained, to commit the same mistake than with
consultorios, it means, to leave it to the State’s interest and not the legal education
benefit. Why to eliminate the consultorios and replace them by legal clinics does not
improve legal education? Because it can be considered to ignore the background of
the transplant and disregarding the role that legal assistance has had in society and
the social function of the legal profession in lawyers’ training in Colombia.

Finally, the Law and Development movement should rethink the model of
intervention (expansion or diffusion) in Latin American countries, specifically in
Colombia, being more aware of the reception process, the environment, the context
the figures or institutions already established and the adaptations that take place in
the reception centers; because when ignoring all of this, it does not really looks like
the pursuit of the autonomous development of the countries, but the imposition of
an American standard.

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