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Cost and benefit

14 September 09

President's message: lack of resources to pay for traditional legal representation in lower value disputes places an obligation on the profession to devise alternative methods of resolution

by Ian Smart

At the end of this month, the Council of the Society will discuss access to justice.

It was famously commented that, in a free society, everyone is free to dine at the Ritz. In that spirit, given the ability to pay, Scotland offers a legal profession whose abilities stand comparison with anywhere in the world. The flaw lies in the predicate, “given the ability to pay”.

It’s now fact that fewer and fewer lawyers are prepared to provide civil legal aid, except perhaps in the field of urban family law, where accepting the wholly inadequate fees available is the only real alternative to giving up altogether. It is easy to understand why.

Qualifying as a lawyer now routinely takes at least seven years, five unremunerated and the remaining two undertaken at no better than cost. Inevitably, during that time, debts and obligations are acquired and, of course, require to be paid off during a career – we would hope in legal practice, with a ready flow of fee payers.

We accept that delivery of legal services comes with additional costs to that of the time of the lawyer him or herself: receptionists, secretaries, cashiers and juniors require to be paid, as do landlords, insurers and (dare I say it) regulators. Legal advice does not come cheap.

If the financial stakes or resources are high enough, solutions can be found: in the private business sector, legal advice becomes simply another on-cost to be added to the ultimate product price; in the public sector to the burden of taxation. In lucrative enough private client work, conveyancing fees become, alongside removers and redecoration, merely another factor in the cost of moving house, while executry fees are no more than an additional deduction from the benefit of inheritance. Even in affluent matrimonial work or personal injury, the funds at stake can bear the cost involved, through contingency funding or ultimate recovery.

The problem is that not all justiciable issues have the money at stake to assure the reward of the lawyer necessary to secure their successful resolution. But that does not mean they are unimportant, either to the individual client or to wider society.

It is important to remember that one of the most important reasons for the creation of the Society in 1949, was to create a framework through which those financially eligible were able to secure public funding if it was required to assert or defend their legal rights. That principle remains valid to this day. However it is not only the cost of legal services that has risen since then, it is also the demand. In the current economic environment, it is naive to think that a solution can be found simply in more resource. And in an ever more complex legal environment, solutions must be sought beyond the traditional methods of delivery.

It is easy to dismiss the suggestion that not every legal problem requires a lawyer as proposing “poor lawyers for poor people”. In reality much valuable, indeed often complex, legal advice is already provided by advice workers, welfare rights officers and not-for-profit agencies. They operate however only in sectors where the involvement of fully qualified lawyers is not required by law. If, however, we are content that benefit issues, sometimes involving tens of thousands of pounds of potential entitlement, can be resolved between presenting officers and welfare rights officers in the context of a tribunal, why does a consumer or debt dispute over £1,500 have to be litigated with the full panoply of the law; or indeed a minor personal injury claim or boundary dispute where the only real issue is the facts?

The profession has always had a self interest in defending the status quo in these areas, but if the profession itself cannot afford to become involved in (financially) low level disputes of this nature, because the client can’t and the state won’t pay appropriate reward, do we not have a professional, indeed moral, obligation to ensure that a mechanism exists whereby they can be resolved?

And might we not also even have a financial interest in such an outcome? Instead of fewer and fewer lawyers struggling to provide a civil legal aid system within the fees available, might not such a system involve an effective triage whereby cases that really needed a lawyer by reason of their complexity in fact or law then paid the lawyer a proper fee for his or her involvement?

In my lifetime, the relative cost of domestic conveyancing has been slashed through a combination of a simplified system of land tenure and the consequent ability to delegate much of the routine process to paralegals. This has not either impoverished or eliminated the need for lawyers in this area. Their expertise is simply saved for the real legal work: adjusting missives, resolving disputes and ensuring overall competence in delivery. Until the recession at least, these were developments which served us well. Is it not perhaps time for us to consider whether other traditional areas of our activities might benefit similarly?

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