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Wednesday, 8 May 2013

The Demise of Legal Aid - is anyone decomposing??



As you know the government has removed whole areas of law from the scope of Legal Aid. 

This means that clients requiring advice in relation to most Family Disputes, Welfare Rights and Employment will either have to represent themselves or find the money to pay for legal assistance.

At the same time a number of businesses are realising that a lot of the work traditionally done by their lawyers does not actually require legal expertise. The gathering of information and documents is something that they can do themselves. This is all leading to a new concept known as ‘unbundling’ or ‘decomposing’ of legal services.

The leading advocate is Richard Susskind in his recent book – Tomorrow’s Lawyers (Oxford Press 2013). He uses a litigation claim as an example and breaks it down into 9 tasks – Document Review, Legal Research, Project Management, Litigation Support, Disclosure of Documents, Strategy, Tactics, Negotiation and Advocacy. He asks which of these are lawyers ‘uniquely’, qualified to undertake. He suggests that there are just 2 – strategy and tactics. 

The other tasks can be done by the clients themselves thus avoiding the expense of legal fees. Interestingly Legal Research is not a task uniquely for lawyers!

This concept is now being suggested as a way to help those affected by the Legal Aid cuts, especially in family cases. People will look to lawyers for assistance, at certain key stages. So we will move away from the traditional retainer whereby a solicitor handles the case from start to finish. Interestingly,  the Law Society has just published guidance to firms who are considering this in Family Cases –


Earlier this year the website Legal Futures reported on similar moves in the USA with the American Bar Association (ABA) saying – ‘As well as improving access to justice for a rising number of self-represented litigants, it said unbundling services into more affordable chunks would help lawyers expand their client base.’


So is this the way forwards? Will we soon see a radical change in the way lawyers work? Are we seeing the day when insurers will contest claimants’ legal costs saying that they could have done certain tasks themselves? On the other hand the extension of fixed fees and inevitable reduction in costs will make this idea attractive to all.

Any measures which increase access to justice are to be welcomed. I can certainly see this being of great help to litigants who are forced, for various reasons, to bring or defend actions in person. I can also see it being well received by the courts as parties to a case will have professional assistance along the way. I think there are some dangers. If the lawyer is dipping in and out of a case at key stages then something might be missed. Cases do not always follow a predictable path and I can foresee arguments between solicitors and clients as to what exactly has been agreed. These problems can be addressed but I think that there will need to be careful preparation of retained agreements. This is presumably why the Law Society has published its guidelines.

The world is changing by the day! This is certainly something that we all need to consider if we are not to be left behind.



11 comments:

  1. Great article Steve. I had a client who dealt with almost the whole of the disclosure process and saved thousands of pounds. If a client is switched on and has time then there is no reason why they can't do tasks such as disclosure. Alternatively firms should offer discounted rates for different stages of the litigation to meet the complexity.

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  2. Thanks Thom.

    I suppose we will eventually see fixed fee arrangements linked to particular tasks - most businesses seem to be saying that they prefer that to the uncertainly of hourly rates.

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  3. Interesting concept and one which could work well for certain clients. My concern is that 'dipping in and out' of cases could result in important issues being overlooked leading to inevitable arguments as to who is liable for any oversight - hence, as you rightly point out Steve, the need for very detailed retainers. Will we see lawyers being held liable for failing to 'properly supervise' the work done by the client or others?

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  4. Donna - I think that is a real concern. As Thom says a business client who is switched on can do much of the leg work and there can be a clear agreement about who does what. How it might work in contested ancillary relief proceedings is less straightforard - not that i've done a family case for 20
    years!

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  5. In principle it's fine and I've worked small claims in this way for some years but the risks you and Donna identify are real. There is also huge risk of lost opportunities in adversarial exchanges where the skill is in reacting to what happens during the encounters and building profiles.
    You don't call in the special forces, tell them you want to deal with the situation yourself and ask them to tell you what to do when you get in the thick of it, do you?

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  6. That whole area of consistency and continuity will always be a headache. I suppose a sophisticated commercial cleint will say that they want to drive those matters and our role will be limited to giving technical advice and support. It's life - but not as we know it...!

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  7. thanks for share..

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  8. Removal of areas of law from the scope of Legal Aid implies that client need to do it alone or need to pay for the legal assistance. I don't think that lawyer is not needed but through the long process we need a professional.

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    Litigation Support

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  10. Thanks for this very useful info you have provided us. I will bookmark this for future reference and refer it to my friends. More power to your blog.

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  11. Legal Aid and advice is much easier to attain in the age of the internet. Online resources are available for anyone who is looking to learn more about the legal system, there is also a site called avvo that you can ask lawyer any kind of law questions you may have. I've had the majority of mine answered by Marshall Davis Brown JR which is helpful because he is a local attorney, I think the majority of attorneys on here try to answer questions in their local area.

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