Time to shape up to the CLS challenge
15 December 1998
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5 November 2013
A Community Legal Service will lead to a growing demand that solicitors serve the needs of the poor, and should be embraced, writes Anna Barlow. Anna Barlow is chief executive of Law For All, which is interested in assisting in the development of not-for-profit solicitor services. Telephone 0181 876 1237 for more information.
Plans for a Community Legal Service (CLS) are firming up. For civil lawyers, legal aid as we know it is coming to an end. We must continue as we are but funded by conditional fee arrangements and other fee-paying work, or be part of the CLS.
This should lead to lawyers clamouring for inclusion in the CLS and defending their position as primary providers of assistance and advice on social welfare law. Lawyers should work actively to ensure we can and do survive in order to provide a high class service to our clients.
Instead, it seems demoralisation in the profession and lack of leadership from the Law Society is resulting in dangerous inactivity and inertia.
A sense of doom prevails and in the vacuum left by our lack of enthusiasm, much of the money still available is being handed to the unqualified advice sector with little resistance from the profession.
Part of the difficulty is that resistance from solicitors is often seen as purely self-motivated, but there are, I believe, several objectively good reasons for questioning this transfer of legal aid funds.
It is a basic principle that equality under the law requires at least relative equality of access to legal assistance. Against a local authority, for example, with a team of in-house solicitors and money to pay counsel, a tenant facing eviction must, in any civilised society, have the services of lawyers acting on his behalf.
Furthermore, all solicitors have at least the generalist legal training required by the Law Society behind them. This background does not mean all lawyers are skilled in the appropriate areas of law, but their training should at least have conferred useful skills and should also act as a general safeguard that they are reasonably capable and competent.
A further argument in favour of qualified legal advice in this field is that solicitors are governed by professional rules intended to protect clients which can be enforced. The most basic of these is, of course, the duty to act in the best interests of the client, which may sometimes mean accepting limitations in one's own knowledge and skills and seeking help from others. Of course, any good adviser will do this, but there are no overall sanctions available against those unqualified advisers who do not follow this approach, as advice workers are not a regulated profession.
There is no good reason why lawyers should not be doing the work. There is no evidence that lawyers are more expensive than advice workers.
It is also hard to overcome the logic that a person with little money, given the choice, would be likely to choose a lawyer over an unqualified adviser, all other things being equal. Those who pay for their legal help almost all choose lawyers - why would the poor not do likewise?
In October 1998, a limited research exercise was carried out at Law For All (covering our three not-for-profit solicitors' offices) in which 58 per cent of clients said they would always prefer a lawyer to an advice worker, 13 per cent would prefer an advice worker and 29 per cent would not mind. The figures changed when the client was asked to assume that the opponent had a lawyer. In that scenario, 70 per cent would prefer a solicitor, 6 per cent an advice worker and 24 per cent would not have a preference. This study was very minor but serves to illustrate the point as one for reflection and discussion.
The limited research that is available suggests that although the hourly cost of a solicitor may be marginally higher than the cost of an advice worker, solicitors work considerably faster, suggesting that they offer much better value for money than advice workers.
Of course, there are a number of ways in which lawyers can be involved in the provision of social welfare law services. They can work for Citizens Advice Bureaux as volunteers or paid staff. They can work in law centres or in private practices. We need to find ways in which solicitors can use imagination to provide a service that can comfortably operate in the new funding environment.
If there is any truth in the public perception that lawyers are trained to wheedle their way out of difficult situations for clients, surely they can be inventive on their own behalf. Why not set up not-for-profit arms of private practices, to enable bids for blocks in the not-for-profit sector?
Organisations staffed by solicitors and trainees should be established in areas where provision is poor and the CLS is likely to be looking for block grant receivers. Lawyers could retrain and specialise in areas of law where provision is known to be inadequate.
Time is short and we need to start thinking and acting now in the interests of our clients and ourselves to be ready for the new millennium.