Waiting for Godot...or ABS?

October will pass without Alternative Business Structures and it looks likely it will be the end of the year before we see them, unless you are a licensed conveyancer that is. In part this is due to the way parliamentary business is done and also to the manner in which appeals against Solicitors Regulation Authority decisions will be conducted. There is also the vexed question of what criminal convictions have to be disclosed by potential investors in ABS.

I'm sure we'll get there in the end even if parts of the legal profession wish this would all go away.

I was struck by Dan Bindman's column on Legal Futures, "Are you an ABS optimist or pessimist?" It's worth reading for the views represented on the potential effects of ABS. Dan ultimately says,

One thing is certain: the new entrants will have little regard for broader notions of access to justice, or the social value of having an independent legal profession to police the three-way interface between the state, the market and the individual.

We don't know this of course. And Dave Edmonds, chair of the Legal Services Board, comments,

Dan Bindman’s article poses the right questions. But I quarrel strongly with his assertion that new entrants will “have little regard for broader notions of access to justice”. Why will they not? Many of the most ambitious and innovative lawyers operating in the present marketplace have a very high commitment to this fundamental cause. My belief is that extending the ability of citizens to secure affordable legal advice from new forms of law firms (which will be in the main run by lawyers and properly regulated by regulators for whom access to justice is an underlying principle) will enhance access to justice, not diminish it.

Read the other comments also--there's good stuff there.

When it comes to dynamic change the legal profession has always been in the vanguard of resistance. It's almost a reflex action. Legal aid was resisted when introduced in the 1940s. Then lawyers learned how it would benefit them. They love it now! But that's going.

Lawyers were opposed to neighbourhood law centres because they thought they would take away business. Instead they promoted it. Their funding is being cut now.

The legal profession has a good eye for resisting winners and on that basis I think they might be on to something with their opposition to ABS. Just don't leave too late...

Waiting for Godot...or ABS?

Why Do We Want Legal Aid?

(thanks to legalservices.gov.uk)

The financial crisis has put a tremendous burden on ordinary people as they tackle debt, housing foreclosures, and more. Finance has particularly difficult rules which makes it hard for anyone to deal with these problems. Expert help is usually needed, but it's not cheap.

This is where legal aid is supposed to step in and give assistance. Except on both sides of the Atlantic expenditures on legal aid are being reined in as part of government cutbacks. The result is a big rise in do-it-yourself representation (pro se or litigants in person), which is causing many problems for the justice system.

Two articles--one in the Guardian and another in the New York Times--speak to this issue and demonstrate to us the folly of cutting back legal aid/assistance to harshly.

Helen Grant, a 20 year veteran of legal aid practice, finds the combined effects of central government cuts, local government restrictions and falling charity contributions is forcing many lawyers to withdraw from publicly-funded practice. It leaves many people to fend on their own in a system which is not geared to help them. If these people decide to fight their own cases, the courts will be in an impossible position as they will have to offer some assistance while at the same time remaining impartial. We know the Citizens Advice Bureau in the Royal Courts of Justice is one of the busiest because it helps litigants in person.

Removing free advice in family, debt and housing will penalize the poor and most vulnerable. Ultimately, some other public service will have to step in at a later time to assist which will drive up costs more than if the matter had been dealt with at an earlier stage.

It's a sad legacy for a system that was introduced 60 years ago alongside free health services and education. Beveridge recommended in 1942 that government should "find ways of fighting the five 'Giant Evils' of 'Want, Disease, Ignorance, Squalor and Idleness'." We haven't yet eradicated them nor are we likely to.

Perhaps one answer will be the rise of self-help classes for people who find themselves under threat. Those whose homes are threatened with foreclosure are finding they must go to court as pro se defendants. Groups like the Fair Lending Center in New Mexico offer courses on how to handle foreclosure cases. The chances of success are slim but the odds are better than not turning up to court at all. Here homeowners are mainly trying to restructure loans because they are unemployed and are faced with intransigent banks and lenders.

Legal aid lawyers are overloaded and can't cope. So a combination of judicial activism and not for profit action is beginning to restore some balance to the system. Judges in New Mexico require conferences aimed at settlement but the strain on the courts is telling.

In some counties of New York state foreclosure cases take up almost half the civil caseload. Other states find similar demands mounting. Self-help is no panacea but it gives some hope to those under threat.

The question is the same in both countries: By cutting legal aid are we going to worsen the situation for the people affected by the cuts and are we going to create greater burdens for the rest of society as a result?

The answer is clear: YES.

Why Do We Want Legal Aid?

The Salvation Army Takes Over Your Law Firm

A recent correspondent from Australia told me about the Salvation Army's aim there to set up a commercial law firm.

The Salvation Army will open a commercial law firm in the Sydney CBD later this year which will charge market rates to do property and conveyancing law for corporate and government clients. Profits from the new firm, which will pay its lawyers proper salaries, will be funnelled back into the Salvation Army’s humanitarian work, including free legal advice for the poor and needy.

To receive moral salvation at the same time as a good salary might be a strong incentive for lawyers to take this up. From our students' perspectives it open ups possibilities about their legal careers. (See my comments in the age of the superlawyer.) But, of course, in the English context this is the kind of development we expect to see issuing out of the Legal Services Act 2007.

This also raises the issue of how we will in future fund legal services for the poor and disenfranchised. I've written earlier about how we might guarantee essential services for people for which there are no simple answers. What is clear that traditional models of funding law for the poor, welfare law, or legal aid are in the opinion of most governments unsustainable. They are desperately searching for alternatives, and the search is exacerbated by the recession.

My correspondent's fear is that governments will see the route taken by the Salvation Army as the solution for their scaling back of funding. David Cameron's view of the "Big Society" appears based on this kind of thinking. And, as part of the Third Sector, the Salvation Army and other charitable organizations are reacting to this rhetoric and at the same time driving it forward. But all of this is founded on partnership and complementarity, not the large-scale shifting of legal aid from the public to the private sector.

The Salvation Army Takes Over Your Law Firm