The end of the world as we knew it?
Richard Miller, head of legal aid at the Law Society, describes the key challenges that firms face since 1 April 2013 and identifies some of the approaches they can take to continue to deliver legal services.1This article is based on ‘The end of the world as we know it?’ by Richard Miller available at: www.lawsociety.org.uk/advice/articles/the-end-of-the-world-as-we-know-it/. It is reproduced by kind permission of the Law Society. So, that is it then: on 1 April 2013, the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 came into force and legal aid as we knew it came to an end. Except, it is not quite as simple as that: on the government’s figures, there will still be over £1.5bn and perhaps as much as £1.8bn going into legal aid. Crime, public law, family, mental health and asylum are untouched by the scope cuts, as are some of the smaller categories. Most housing litigation (as opposed to advice) will still be in scope. For many firms, the impact of the LASPO Act is limited. But for firms doing private family and social welfare law work on legal aid, the changes will be revolutionary and, as with any revolution, there will be casualties. How can you avoid being one of them?
How not to be a legal aid casualty
On the family side, legal aid will still be available for help with mediation and for the victims of domestic abuse. But how will you get to the point at which you can establish a client’s eligibility for legal aid? Before 1 April, so long as the client was financially eligible – which could usually be determined pretty quickly – you knew from the outset that the work was in scope and you would be paid for the first interview.
But now, clients will not be eligible unless certain very specific criteria are met. Sometimes it will be obvious from the outset that they are: for example, when a client comes in with a black eye saying that s/he wants an injunction against his/her husband/wife, you know that the case is definitely in scope – at least for the injunction application. Even in this situation, however, you will have to be careful. Unless and until other criteria are met, a client seeking an injunction will be entitled to legal aid only for the injunction application. If the application results in an order or undertaking, you will then be able to assist the client with other aspects of the separation, but not until then if other trigger criteria do not apply.
So, there are minefields even for clients who obviously qualify immediately for legal aid. But in a lot of cases, it will not be so apparent. Sometimes it is only after talking for some time that clients mention abuse that they have suffered. How can you find out sensitively but quickly if this is the case?
For clients who have not suffered abuse, help with mediation will still be available. But this means that at the point when clients first call on you, before they have even considered mediation, legal aid is not available. It seems ironic indeed that the government has removed funding for the advice that steers a lot of clients to mediation, and believes that as a result more people will choose this option rather than going to the court as their next port of call. But that is what they have done. The first appointment is no longer funded by legal aid. You have to decide how you respond to this.
•Will you send clients to mediators instead of seeing them, and advise them to come back once they have a mediation appointment?
•Will you charge for first interviews?
•Will you do (potentially long) first interviews for free to establish eligibility?
•Will you have very junior staff conducting an initial interview with the client to try to establish whether they are likely to be eligible, only bringing in the lawyer for a relatively short part of the interview?
•Will you change your model entirely, and offer clients a mediation service in your firm (foregoing the potential help with mediation) and litigation should the mediation not work out?
•Will you stop doing family legal aid altogether?
How have you decided to respond to this challenge?
And what about those who are not eligible? If proceedings have already been issued; if the other side refuses to mediate; or if mediation breaks down, legal aid will no longer be available to assist these clients. If you carry on only offering a full cradle-to-grave service, these clients cannot afford to buy those services. There is a real challenge here to provide something that will be of use to these clients and which they can afford. But there is also an opportunity to open up a large market that solicitors have long neglected among those who are just too rich to get legal aid, but not rich enough to pay privately.
Affordable legal services?
So, how can you provide something affordable to these clients? One way is to have a menu of services at fixed prices, allowing clients to pick and choose which services they want. You could have separate fixed fees for drafting an application to court, preparing a witness statement and representing the client in court, with various package deals for multiple services. In order to make these services more affordable to those within the legal aid eligibility limits, you might be able to offer a reduced price for those whom you have assisted with help with mediation. For those clients, legal aid will already have paid for some of the initial information gathering, so you do not need to recover the cost of doing so within the fixed fee that you charge.
In the social welfare field, there may be fewer options. Many areas are now out of scope altogether. Clients who need these services are less likely to be able to afford to pay anything much to get these services privately. But if instead of thinking about the traditional one-to-one model of service delivery firms think about a oneto-many approach, perhaps some help can still be provided to some clients.
Better use of IT
The legal profession has only scratched the surface of what it can do with technology. For example, if you develop a webinar: ie, a web-based seminar, that walks clients through what they need to do to lodge an employment tribunal application or a housing disrepair claim, many people may be willing to pay a small fee to view it. Another option may be to develop a web-based guide to completing common legal forms, mixing written guidance, examples and short video clips explaining what is needed. Any topic where you have found yourself giving similar advice to many different clients might lend itself to this approach.
Such an approach serves a double purpose. If enough clients are willing to pay a small sum to use these products, they will more than pay for themselves. However, as well as becoming a small but steady stream of income in its own right, this approach could be a valuable means of attracting people to your website. Once there, some of them will become clients either for other IT-based services or for your core face-to-face services.
Of course, these potential clients could be anywhere in the country. If you are in Northampton, a client in Sidmouth is not going to drop by to see you in person. But you could communicate via Skype. If, before your Skype call, the client has filled in a form on the web giving all his/her personal information and the background to the problem, and has paid your fee by credit card, you can significantly reduce the amount of your time the client needs, and therefore lower the cost to him/her. You also minimise the risk of bad debts.
One particularly innovative firm has developed an app for the iPad. The Accident App enables someone who has been involved in a road traffic accident to photograph the scene, note insurance details and record the names of witnesses. At the press of a button, all this information goes to the solicitor to initiate a claim on the client’s behalf. How many dozens of new and innovative approaches does the world of apps open up to the profession?
In some areas, with the best will in the world, clients will not even be able to pay a relatively small fee to access services. Many services in the fields of welfare benefits and debt might come into this category. In these areas, there might be opportunities to develop a model for how you could make web-based services available to the public free at the point of delivery, and seek charitable or philanthropic grants to develop and maintain the service.
There are different approaches you can consider that do not depend on new technology. You may want to consider the Law Shop model, under which a firm makes its library available to the public for free, has self-help books and products on sale and sells lawyers’ time to clients in small units, with no continuing obligations on either side. While legal aid was widely available, this approach was something of a niche enterprise, but it may prove particularly suited to the world into which we have now moved.
The brave new world of legal aid
The common theme here is that the key to operating in this new world will be to focus on the elements where your expertise is most vital, and to find ways of being paid a reasonable amount for this, stripping out as much of the extraneous cost as possible and delegating what still has to be done to the lowest level possible, consistent with meeting your professional obligations and delivering a service at a quality commensurate with the price. A Nissan Micra is of lower quality than a Rolls Royce, but both are perfectly acceptable within their own price ranges. Other solicitors, and new entrants to the market via the alternative business structure model, have been undertaking precisely this analysis in order to gauge how they can deliver a service clients want at a price they can afford within the regulatory rules in place. How will you compete? You are perfectly free to continue supplying the Rolls Royce service. But you will have to accept that the market for it is smaller than the market for the Nissan Micra service, and develop your business plan accordingly.
Conclusion
I will not pretend that the situation is anything other than bad. I know that these measures, or the many others that firms have been thinking about, will not be anything like a complete answer. I do not think that even the government would dispute that the system we have after implementation of these cuts will be worse than the one we had. But there are ways to develop new streams of income while also helping the clients we came into the profession to serve. And the more we do as a profession to try to plug the justice gap, the stronger will be our arguments to government that it must restore legal aid for those areas which the alternatives cannot cover.