The Legal Profession

1. The Legal Profession Evaluation

2. Lesson Objectives • I will be able to evaluate the legal profession • I will be able to evaluate legal funding • I will be able to evaluate sources of advice

3. The essential principles relating to the provision of legal services has not changed since they were stated in the 1979 Royal Commission on Legal Services as: • There should be equal access to the courts • Equal access demands adequate legal services • Financial assistance out of public funds should be available for every individual who, without it, would suffer an undue financial burden in properly pursuing or defending his rights • The standard of legal services should be the same irrespective of whether or not provided at the public expense • A free choice of lawyer should be available to each individual

4. These principles need to take into account the fact that there is an unmet need for legal services, arising from a number of factors: • There has been the creation of new categories of legal rights without the funding to enforce them: this relates in particular to social welfare law • People do not realise their problem is a legal one that can be dealt with by a lawyer, e.g. debt • There is still poverty in the UK, and poorer people often have a fear of fees and bills • There is general ignorance of funding methods available, despite the increase in advertising by the legal profession and other organisations such as accident help lines • There may be fear of authority and unfamiliarity with the surroundings: lawyers are equated by many with the courts and the police and generally give a feeling of unease to many • Unfamiliar language is used, that is, legal jargon and technical terms • Lawyers may be inaccessible: this includes office hours usually matching times when people are at work • Lawyers in the area may be unavailable (high population in one area and not in another) • Solicitors’ training emphasises on the business side of being a solicitor, so the emphasis is on the most lucrative business, not the most unprofitable These points need to borne in mind when looking at the next points.

5. Legal Profession • Lawyers’ work: • More solicitors means more work • High competition, not just from solicitors, but from accountants, conveyancers, will makers, banks etc • Some work more profitable than others (commercial contracts, probate, wills and trusts are considered profitable, whereas welfare can sometimes be loss-making) • Solicitors don’t follow cab-rank rule so can cherry pick work – leaving some people without access to a lawyer • This situation is resolved by law centres

6. Pay • Public perception is that lawyers are well paid • There are million pound earners but average wage of solicitors in 2005 was £48,000 – in North East England it was £22,000 – LESS THAN A TEACHER! • Barristers are self-employed which can mean no earnings • Legal aid rates are very low but Balbir Singh was paid over £1.1m from legal aid • A proposed fee structure for legal aid cases was neglected after it was decided it breached EU rules in 2007 • This leads to uncertainty • High cost of lawyers is seen as a deterrent to using the law

7. Getting Started • High cost to train as a lawyer followed by the potential need to take out further loans when working • Two thirds of BVC students don’t get a pupillage • No guarantee of work after qualification

8. Control of the legal profession • Barristers used to be immune from liability for poor work done in court and limited protection out of court – immunity removed by Hall v Simons (2000) • Moy v Pettman Smith (2005) took a more lenient view of this • Barristers have always been subject to discipline for their actions by the Bar Council • The Council has now removed itself from direct involvement in complaints apart from giving general advice to its member barristers • It has set up the Bar Standards Board as the independent regulatory body of the Council • Responsible for regulating barristers independently and in the public interest • Professional negligence is outside the Bar Standards Board remit, although there are some areas of overlap

9. When complaining about a solicitor, the first step is to approach the solicitor themselves • Legal Complaints Service is the next step – independent complaints handling body, part of the Law Society but operating independently • Services are confidential and free to use • Usually tries to resolves problems through conciliation • Solicitors are not immune from claims of professional negligence – may have some protection from courtroom work – Moy v Pettman Smith (2005) • Where solicitors have not acted in the manner required, the Solicitors Regulation Authority may become involved – part of the law society but operating independently • Its purpose is to protect the public by ensuring that solicitors meet high standards and by acting when risks are identified – standards are set out by the Solicitors’ Code of Conduct 2007

10. ILEX can take disciplinary action against members who breach the Code of Conduct or its rules, or whose behaviour is unfitting • ILEX has the power to exclude a person from membership, or can issue a reprimand or fine • First point of contact for poor work by an ILEX member is the firm or organisation he works for • Can be a daunting task to take action against a member of the legal profession • There is no immunity, but it is sometimes suggested that the standard required for the legal profession is on occasions lower than other professions

11. Legal Funding • Cost • Legal aid in England and Wales currently costs more than £2 billion a year • Nearly 50% more than what was spent on culture, media and sport • Successive Governments have been trying to reduce legal aid spending – have only managed to contain it by reducing availability

12. Availability • Select Committee on Constitutional Affairs Third Report in 2007 noted that legal aid suppliers had declined in numbers significantly • Legal aid contracts declined by a third between 2000 and 2007 • Represents a huge decline in access to justice for people with family problems – as firms gave up legal aid work because of the poor rates of pay, bureaucracy and costs of administering legal aid contracts and recruiting suitably qualified staff • The Mental Health Lawyers Association stated to the Select Committee that the number of specialists in their association has fallen by 25% since 2000, whilst the number of unwell clients had risen by over 10% in the same period • These examples show that there remains an unmet need for legal services and the principles relating to access to justice are not being achieved

13. Conditional fee agreements • A mix of legal and financial matters that are not always clearly understood by the non-lawyer • Customers sometimes induced inappropriately • CAB evidence is that the withdrawal of legal aid and the advent of conditional fee agreements has lead to a system that involves high costs and delays, and in some cases, consumers that are subjected to high-pressure sales tactics by unqualified people • Inappropriate marketing and sales tactics means that some solicitors are known as ‘ambulance chasers’

14. Risk of these agreements are not always clearly explained • Hidden costs that aren’t ‘no win no fee’ • The alternative of representing oneself in court is seen by many as impossible, so valid claims go unmade through fear and inertia • So-called compensation culture is focussing more people on the hope of money for nothing, rather than getting back to work after injury • Victims are not being helped to resume a normal life in both society and the workplace • Create incentives for some solicitors to cherry-pick high value cases with a high chance of success • Cab-rank principle would be better • No effective regulation of conditional fee arrangements to provide protection on quality of advice and costs • Activities of claims management companies seem to fall outside the system of regulation, but are increasingly the starting point in the claims process

15. Other sources of advice and funding • The cost to the individual of funding legal advice varies • Much available advice is apparently free – but what about the subscription or insurance premium • The cost is however, minimum – the reason why so many people have some form of legal expenses insurance attached to their car or house insurance • The disadvantage of this is that there is often a restricted choice of legal provider, and some policies limit the maximum amount payable