Didn't see that one coming

Of all those big names brands claimed to have an interest in legal services identified in the run up to the so-called ‘Big Bang’ introduction of alternative business structures, no one spotted the legendary lorry magnate Eddie Stobart (with its distinctive green and yellow livery) creeping up in the fast lane.

The logistics business the Stobart Group last week launched a new service to ‘link members of the public and businesses direct to a barrister without needing to employ a solicitor’. ‘It is by some distance the most unexpected development so far in the post-Legal Services Act world,’ noted Legal Futures.

Quite; but it also makes wonderful sense.

Could there be a better way of assisting the Bar with its unfortunate image problem? Nothing cuts through all those old, tried and not entirely unfair clichés – you know, unapproachable, elitist, pompous etc - than the words ‘Eddie Stobart’.

In the context of the Legal Services Act 2007, ‘direct access’ to the Bar is a small but significant step in the direction of liberalization. It is only eight years since the Bar Council scrapped the centuries-old rule that litigants who wanted to instruct a barrister had to do so through a solicitor following pressure from the Office for Fair Trading. A year after Sir David Clementi began his review of regulation into legal services. 

By the way, Stobart Barristers (as they are known) have no ambitions to become an ABS. Instead, they will run under the 2004 public access regime. ‘We’ll give it to you straight,’ they promise. They are offering fixed-fees and a ‘pay-as-you-go’ model for litigation.

It is unsurprising - and welcome news for consumers - that new market entrants are ditching the hourly rate so beloved of lawyers, and so hated by clients. In a 2010 study (Shopping around: what consumers want from legal services, Jures) 2,000-plus consumers were asked for their preferred way to pay for legal services: fixed fee was the most popular option (48%), followed by no win no fee (where the lawyer takes the risk of losing the case) (38%). No surprises that only the tiniest minority (2%) wanted hourly rates.

The launch of Riverview Law earlier this year was called ‘the boldest-ever post-Legal Services Act move involving the Bar’. The idea behind Riverview is annual contracts for unlimited legal advice for every type of corporate client from SMEs to FTSE 100 companies (starting at just £200). At the forefront of the Riverview proposition is the Bar. Out of a team of some 75 lawyers, there are 43 barristers including 12 QCs. That heavy weight offering includes Richard Lissack QC, Riverview’s head of the business and international teams, and Jonathan Caplan QC.

Impressive but - for my money - the nation's favourite hauliers have pipped Riverview (backed by global law firm DLA Piper through the holding company LawVest). 
Trevor Howarth, legal director at Stobart Barristers, has said that because of the problems in legal aid and solicitors increasingly doing advocacy in-house, more barristers are ‘readily available’. ‘Consumers don’t know where to look or which barrister to pick, leaving many to still having to rely on the advice of their solicitor,’ he said. ‘But in doing so they are forced to pay significant fees. Our model cuts out waste and opens up access to a national panel of barristers that are selected for their ability to meet our clients’ needs.’

I wrote recently in this blog about the Co-op promising to bring affordable, fixed fees to divorcing couples. ‘Legal aid has provided a really important safety net for people over the last 50 years and that safety net is being pulled away,’ Christina Blacklaws, who joined the retailer from legal aid firm TV Edwards told me. As of April 2013 when the Legal Aid, Sentencing and Punishment of Offenders Act comes into force, people will only be eligible for legal aid if there is evidence of domestic violence. ‘What does that say about our legal aid scheme?’ said Blacklaws. ‘Hopefully we will help to bridge the gap.’

We launched www.thejusticegap.com, an online magazine aimed at the public about the law and justice on October 6th – the day ABSs came into force. As Michael Mansfield QC puts it on our site, the ‘justice gap’ refers to the increasing section of the public too poor to afford a lawyer and not poor enough to qualify for legal aid.

One of the first articles we ran on its launch date was by David Edmonds, chair of the Legal Services Board. Edmonds gently reminded lawyers that ‘for all the legions of column inches’ devoted to the liberalisation in the legal press these reforms were ‘less about lawyers and more about consumers’.

‘We expect ABS to widen access to justice,’ he says. ‘The new competitive pressures and impetus towards innovation should increase the availability and reach of legal services.’ 
The realities of LASPO restrict access to the justice in fairly brutal ways; but it remains to be seen whether newly competitive pressures will meaningfully close that gap and whether private practice lawyers - as well as the new market entrants - rise to the challenge.

Are legal aid clients really second class citizens?

‘It’s a myth that clients get the same level of service on legal aid rates as when they pay privately - that disappeared about 10 years ago.’ So said Ian Kelcey, a leading defence lawyer and a senior partner at Bristol firm Kelcey & Hall here.

If that was the case, then it was news for many defence lawyers living under the illusion that they owed an equality of service to both those rich enough to pay and those who depend on the state. ‘There is no excuse for not doing your very best for each and every client (which I am sure Ian’s firm does), or for reducing the levels of service you offer if you intend to carry on with criminal defence work that is state-funded,’ wrote defence lawyer John Storer yesterday on www.thejusticegap.com here. ‘No one is forced to take on a legal aid contract; it is a matter of choice for each firm.’

Quite. By the way, Kelcey was calling for criminal firms (in the words of the The Law Society Gazette) to ‘make it clear’ to legal aid clients how ‘their publicly funded status affects the service they get’. ‘We can’t supply a platinum level of service with base metal rates of pay,’ he warned.

Kelcey, a Law Society council member, argued that firms needed to take a look at the ability of the advocates. ‘It’s hard for young advocates to resist the senior partner who says they should go and be the junior on a murder,’ he said.

If lawyers start giving their legal aid clients a second-rate service, then maybe they stop doing publicly funded work. That’s not to diminish the pressures on defence firms. Professor Richard Moorhead has just been appointed the first chair in law and professional ethics at University College London. Unsurprisingly then, the academic has a more nuanced view.

‘Lawyers have to provide a competent service, whatever they are paid or they have to decline the work,’ Prof Moorhead says; adding that he has ‘great sympathy’ with Kelcey’s concerns about ‘economic pressure on quality’. ‘But telling clients to expect poorer quality service smacks of an attempt to shift practitioner anger at legal aid cuts to clients. It's a plan that will only backfire: more complaints, less business, weaker practices and an erosion of the belief in equal justice for all.’

Equally, Prof Moorhead argues that it ‘must be the case that legal aid clients get lower levels of service. Otherwise, why charge private clients more?’ Continuing that line of thinking, Prof Moorhead asks: ‘Do firms have to advise those clients there should be a more cut price option which they can better afford? Isn't that the logic of Mr Kelcey's position?’ he asks.

Kelcey’s case was hardly bolstered by seemingly supportive comments – anonymous obviously. ‘I am delighted our firm lost its legal aid contract for family matters,’ wrote ‘Richard’. ‘Our firm has now started to resemble normality and the waiting room no resembles the green room for the Jeremy Kyle show. They would phone up, making demands, and often eat the time of senior management who ended up being roped in because they got irate and complained. Often private clients would suffer as far too much energy was being expanded on these clients. Now we can focus on private clients, have some tranquility, and begin to make money.’

The charming ‘Richard’ later returned to clarify a few things (‘No, I am not ashamed of myself...’). The family legal aid contract ‘nearly brought our firm to its knees’, he said. Plus he had another anecdote to relate. ‘I will never forget the expression of discomfort on the face of a private client who was paying over £1000 for his will and IHT advice, when he had to sit in our waiting room next to a woman who had brought in her own supply of special brew and her brood of children.’

There should be a collective sigh of relief on the part of legal aid clients everywhere that Richard’s firm has abandoned publicly-funded law. It is shocking that someone with such an absence of empathy should have been let loose on vulnerable clients. Good riddance, I say.

Ian Kelcey rightly raises a critical issue: how the structural pressures on the criminal defence professional negatively impact upon the quality of defence. It was a theme of Wrongly Accused: Who is responsible for investigating Miscarriages ofJustice, part of the JusticeGap series which came out last month. ‘The financial pressures on solicitors’ practices nowadays are so great that turnover and profit rank far higher than actually doing a good job for the client and ethics come nowhere,’ wrote Maslen Merchant, a legal executive who specializes in miscarriages. It was a provocative article - not everyone agreed with Merchant (as you can see from the comments).

At the launch of Wrongly Accused, Gareth Peirce put her concerns in a characteristically strident fashion. She pointed out ‘an ever present danger’ in every case for a miscarriage. ‘Lawyers are at the heart of many cases of the wrongly accused and wrongly convicted: wrong, shoddy, lazy representation. It is a recurrent theme. It should haunt us.’ She pointed out that the Birmingham 6’s original lawyers who saw them first ‘when they were beaten up, got their legal aid forms signed but failed to note their injuries’.

Instant Law UK

Instant Law UK turns to experienced CABx and Law Centre Debt advisors to launch its free Debt and Money Advice Service, with the recruitment of the first of its home based experienced debt advisor Rebecca Lawrence.

Rebecca is an experienced LSC DEBT/HOUSING SUPERVISOR/WELFARE BENEFITS ADVISER, with experience of working both in a CABx setting as a supervisor but also with private practice as a specialist family lawyer.

Working in partnership with local authority service the service will go live Monday 14th May 2012 allowing library users to access the service both within a library setting and from home.

The Library users will be able to get free legal advice directly from specialist lawyers via secure video-conferencing software. The dedicated computer screen will display an easy to use menu to help customers select the area of advice they need which will offer a range of subjects including Immigration, Employment, Landlord & Tenant and Family matters. This initial consultation is free to visitors to the library, who will be using unique, easy-to-use software and video conference call facilities developed by Instant Law UK.

A bad day for justice

So that’s that then.  The Legal Aid, Sentencing and Punishment of Offenders Bill has completed its way through parliament and about an hour ago received Royal Assent after months of fierce debate and a savaging by the peers.

I was in the House of Lords as it completed its passage last week. The Bill received a deserved kicking in the Lords; but, frankly, the legislation remains substantively as it was when the green paper was published in autumn 2010.

‘I genuinely believe access to justice is the hallmark of a civilised society,’ said Ken Clarke back then. The justice secretary was introducing the most radical reforms to the legal aid scheme since it was introduced as a building block in the architecture of the postwar welfare state.

‘So large a volume of defeats occurred because the Government adopted inflexible attitudes and lost the arguments on their merits,’ Lord David Pannick argued on LASPO’s last day in the Lords. The Bill had been made ‘marginally better’ by the forced changes, reflected the barrister fairly; adding that it would have been ‘marginally better’ still had his own amendment been accepted. Pannick sought to remedy the perceived ‘defect’ in Clause 1 of the Bill, which omitted to reflect that the objective of the justice secretary and his legislation was to secure ‘access to justice’.

Pannick argued that the ‘unsatisfactory manner’ in which the Government treated that amendment was ‘typical of the unsatisfactory manner in which the Government have proceeded on this Bill generally’. ‘The Government were defeated on this Bill on 11 occasions on report and three times again last Monday,’ he added.  

According to the silk, the Government's ‘general inflexibility’ involved ‘a failure adequately to assess the impact of the provisions’; ‘a refusal to take on board the fact that many of the financial savings are illusory’; as well as ‘a refusal to recognise that the limits on the scope of legal aid imposed by Part 1 will hit hardest the weakest and most impoverished sections of our society.’ It remained ‘a bad Bill’, he said.

So what has been achieved by access to justice lobby? Quite a lot. As the campaigning group Justice For All point out, in the wake of the green paper, legal aid was saved for special educational needs and international child abduction cases; the hugely controversial mandatory telephone gateway was limited to a pilot involving four, and later restricted to three, areas of law; and the plan to force those with more than £1,000 of disposable capital to make a £100 contribution to their legal costs was dropped.

Thanks to the Lords there were three major concessions (reported in this blog last week), ministers gave significant ground in a number of areas of their plans relating to domestic violence; public funding will now remain for welfare benefit appeals to the second tier tribunal and higher courts and for the first tier tribunal on 'points of law'; and the Director of Legal Aid Casework will be independent from Government. Plus, ministers will be able to add, as well as remove areas of law, from the scope of legal aid without primary legislation. Victims of trafficking will still be entitled to legal aid, and funds will remain for clinical negligence cases where the negligence occurred during the first eight weeks of life. Legal aid will still be available in police stations.

All important changes. Nonetheless the Act represents a filleting of our legal aid system - removing £350m from the £2.2bn scheme by cutting entire areas of law from scope. It is the end for funding for much of what is known as 'social welfare law' - that’s advice on debt, benefits, employment, family (unless it involves domestic violence) and housing advice (unless someone is left homeless). 

Talking to Lord Bach after last week’s debate, the peer repeated his damning assessment of the Bill as ‘wicked’. ‘It is an attack on poor people, the vulnerable and disabled: the people who cannot answer back,’ Bach, who led the opposition attack on LASPO in the House of Lords, said.

Lord Pannick, a member of the House of Lords' constitutional committee, identified a vacuum at the heart of LASPO: its failure to recognise ‘access to justice as a vital constitutional principle’. The QC’s amendment to clause 1 stated that the Lord Chancellor ‘must secure, within the resources made available, that individuals have access to legal services that effectively meet the needs’. Some 18 months down the line, Ken Clarke’s stated belief in ‘access to justice’ being the ‘hallmark of a civilised society’ rings particularly hollow.