Dial '1' for Justice

One of the most controversial ideas at the heart of the proposed legal aid reforms is a helpline whereby people who qualify for publicly funded advice can actually talk to a lawyer on the telephone as opposed to having to go through all the hassle of seeing them face-to-face. So far, so uncontroversial, it might seem – unless that is you have been following the Legal Aid, Punishment and Sentencing of Offenders Bill (LASPO).

What ministers are actually proposing is a helpline that acts as a ‘single gateway’ to what survives of an emaciated, post-cuts legal aid scheme. By ‘gateway’, they mean a ‘mandatory’ single point of entry into the publicly funded legal advice scheme. The idea is less about enabling people to secure access to justice and more about restricting the ways in which they can get their hands on public funds.

The proposals will build on the Community Legal Advice helpline set up by the Legal Services Commission in 2004. Legal aid lawyers have long been suspicious of the motives for extending telephone advice at the expense of face-to-face advice. The government spent £20 million on the advice line last year and some 397,191 callers were helped last year - of that number 272,372 enquiries were closed ‘at the triage stage’. A 2011 customer satisfaction survey found 95% of the callers were ‘satisfied’.

The fact that the humble telephone is greeted in legal aid circles as either ‘a great new technology or the harbinger of the apocalypse’ (to quote Crispin Passmore, strategy director at the Legal Services Board and formerly of the LSC) tells its own story.

No doubt many lawyers will feel their suspicions have been confirmed by the legal aid Bill. The fear that the LASPO ‘gateway’ proposal becomes another hurdle excluding even more people from a diminished scheme is well placed. Earlier this month peers backed an amendment to the Bill to remove the provisions for both ‘a mandatory telephone gateway and the delivery of legally aided services exclusively by telephone’. Paralympic gold medallist Baroness Grey-Thompson, and independent crossbench peer, tabled the amendment. She sought a duty to promote ‘the plurality of provision’. ‘A telephone-only service may work for a large number of people,’ she said. ‘However, it may adversely impact the most vulnerable clients, who may struggle to explain complex problems over the phone.’

A ‘plurality of provision’ is what all clients of legal services want and need (even publicly-funded ones). One of the promises of this brave new world of deregulated legal services is greater accessibility for clients and, in particular, the ability to communicate with your lawyer in the way that suits you best.

For new market entrants coming into the legal services market under the Legal Services Act 2007’s alternative business structure regime (i.e., retailers, banks, insurers etc) telephone help-lines and online advice aren’t innovations, they are just the basics.

Roger Smith, director of JUSTICE, wrote an interesting paper last week to ‘kick off a project looking at whether, and to what extent, the internet and telephone ‘hotlines’ might replace face to face legal services’. ‘The instinct of most practitioners is to say “never”: that of ministers and civil servants anxious to save money “not soon enough”,’ he wrote. The title of the paper (Internet legal advice: interesting but dull?) offered an insight into his own experience trawling the Internet.

I feel for him. I have written elsewhere about the shocking dearth of decent online information. Of course, there are exceptions (Citizens Advice's Advice Guide and Advice Now's Living Together) but – generally speaking – it is an information desert out there. But it’s worse than that. The internet, rather then being a useful resource for those in need of legal help, has become overcrowded, difficult for consumers to navigate and unreliable. I wrote in my Guardian blog that the Internet ‘can be a treacherous place for those seeking legal help when law firms and claims companies regard it as a marketing opportunity to trade prospective clients for referral fees’.

Will the forces of deregulation close assist? It might be worth watching the progress of San Francisco-based legal services innovator Rocket Lawyer launching in the UK later this year. The US online legal document service only launched in 2008 but reckons to have had some 20m American customers last year. In recent months it raised $29m including backing from Google Ventures. The site styles itself as ‘the free legal document service’ and gives away hundreds of model letters, forms, agreements and templates. I spoke to its founder Charley Moore recently. He was mindful of setting up in ‘an environment of austerity where legal aid is being squeezed’. ‘What we are actually doing is satisfying a latent demand for legal services,’ he told me. ‘We are making the law accessible for people who would otherwise go without justice. No one can argue with that.’

Back to telephone advice, a 2010 report (Shopping Around, Jures) reflected the view that people do actually want face-to-face advice for legal services. It was unsurprising perhaps, that seven out of 10 consumers (72%) wanted to sit across the desk from our lawyer when seeking advice on a serious legal matter (divorce, for example). It was more of a surprise to see considerable reluctance to even draft a will or undertake a house move without seeing a lawyer. Almost three-quarters of those surveyed decided that was either important or fairly important (74%) to come into the office.

Plus those people eligible for legal aid include, by definition, some of the most disenfranchised: those who don't have a phone in their homes or a mobile (or can't afford the bills); the elderly and hard of hearing; those who don't speak English as a first language; plus those who simply want the reassurance of human contact. Plus, of course, not everyone is online. As of the end of last year, according to the Office for National Statistics, some 8.2m adults had never used the Internet.

The high satisfaction rates of CLA might sound impressive but the happiness of a telephone client doesn’t reflect quality of advice. Back in 2006 I conducted an admittedly rough and ready ‘mystery shopper’ test of CLA. We had a panel of experts reviewing advice given in 10 scenarios – you can read about it in an article I wrote for the Observer. Out of those 10 calls, six prompted detailed responses and, in four of those cases, further advice was needed. The results scored by a panel of legal experts were reasonably impressive (scoring at least seven out of 10), however, in two cases callers were prevented from taking the right course of action (both scoring two out of 10). On this snapshot, the advice seemed ‘somewhat variable’, noted Roger Smith, who was one of the judges. His main concern was that advisers seemed reluctant to refer callers on for face-to-face help. The LSC has to make sure that the helpline was ‘not just a mechanism for deterring demand’, Smith said.

Unfortunately, the gateway idea seems to be just that.

What competition can offer Legal Aid

Does the introduction of competition under the Legal Service Act 2007 have anything to offer the legal aid sector? It has been six months since the ‘Big Bang’ start-date (October 6th 2011) under the legislation that allowed for the licensing of alternative business structures or ABSs. It introduced a new regime enabling both the external ownership of law firms and the floating of legal practices on the stock exchange.

This is the first in a series of articles looking at ‘access to justice’ in the context of the deregulation of legal and the biggest ever retrenchment of the legal aid since it was introduced. So far the Solicitors Regulation Authority has received more than 150 ABS applications and, meanwhile, peers contemplate the Legal Aid, Sentencing and Punishment of Offenders Bill which plans to take £350 million from a £2.1 billion scheme by removing social welfare law and large parts of the family scheme (except where there is domestic violence). Over the last two weeks, the government has suffered seven defeats on its legal aid proposals in the House of Lords, and made a series of concessions (allowing areas of law to be added to the legal aid scheme in future, adopting a wider definition of domestic violence and withdrawing the threat of means-testing police station advice).

The legal not-for-profit sector, without private practice income to lessen the impact of the reforms, is most exposed. The reforms would have ‘a devastating impact’ on the network of almost 400 Citizens Advice Bureaux across the country, predicted chief executive Gillian Guy this month. ‘Specialist advice has become a core part of the CAB service,’ she commented. ‘Our frontline caseworkers and managers have told us that the impact of the proposed changes to legal aid on specialist services will be devastating. The overwhelming majority say that it will be impossible to provide a specialist service, whilst over half say that it may be impossible to continue providing any advice service at all.’ The Law Centres Federation last year predicted that as many as 18 of its 56 law centres could shut their doors.

Whilst the legal press works itself into a froth of excitement about ABSs, lawyers in the small and troubled publicly funded sector of the legal profession are unlikely to be over-excited about its transformative powers. Legal aid lawyers have long feared that big business would indulge in an asset-stripping spree snatching lucrative work from high street practices and jettisoning legal aided. Lord Phillips of Sudbury, the solicitor and Lib Dem peer, once wished the Legal Services Bill to be ‘thrown into the deepest hole in hell’. ‘If this wretched Bill goes through,’ he told fellow peers in 2006, ‘you may get the likes of Tesco, Barclays and the Wal-Marts deciding that there is money to be made but they’ll only be interested in the profitable bits such as property, Wills and employment,’ he said.

The Law Society tried to argue that, through the ABS licensing regime, conditions could be imposed upon new market entrants compelling them to offer welfare law services or else provide financial supporters to assist legal aid firms ‘imperilled’ by the new entrants (similar to section 106 ‘planning gain’ arrangements).

I once asked Jonathan Gulliford, operations director of Co-Operative Legal Services, what he thought of the Chancery Lane’s proposal. ‘It’s trying to put the problems of legal aid funded work into the courts of ABSs. Nobody is asking Silverbeck Rymer or Clifford Chance to subsidise legal aid work? To say that the Co-op isn’t allowed a financial model to compete with the likes of Silverbeck Rymer in the personal injury sector because it has to fund social welfare and immigration work is completely ridiculous.’ If there was not enough money in legal aid to make a profit then that ‘needs to be addressed in a different forum than the Legal Services Act’, he argued.

The big retailers haven’t shown much enthusiasm at the prospect of moving into legal services – notably, Tesco whose name became shorthand for deregulation. There is one exception: the Co-Op. Eddie Ryan, managing director of the Co-operative Legal Services, has acknowledged that legal aid is a good fit with the store’s brand. He talked of the Co-op ‘wrapping our arms about people who need our help’. ‘Legal services are a distress purchase or a purchase of necessity,’ he says. ‘We are there when people need us or in times of distress.’

At the end of last year the Co-Op launched a family law service spearheaded by lawyers from leading London legal aid firm TV Edwards (managing partner Jenny Beck, head of business development, Chris May, and partner Christina Blacklaws). It will offer a full range of fixed-price family legal services and has indicated an intention to bid for a legal aid contract in the next tender round. Beck, who is co-chair of the Legal Aid Practitioners Group, has denied her decision was motivated by money. What swung it was the potential for the new venture to increase access to justice, she says. ‘If you were a legal aid lawyer 10 years ago you would have been helping infinitely more people than now.’