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Should law firms be responsible for means testing clients to establish what they can afford to pay for legal advice? Toby Hales weighs up the cost of cuts to publicly funded family law
Issue:
Vol 157 no 13 02-04-13
Latest Issue:
Vol 157 no 12 26-03-13
Article Author:
Toby Hales is head of the family law team at Hodge Jones & Allen (www.hja.net)
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It’s family law, but not how we knew it Toby Hales is head of the family law team at Hodge Jones & Allen (www.hja.net)
Should law firms be responsible for means testing clients to establish what they can afford to pay for legal advice? Toby Hales weighs up the cost of cuts to publicly funded family law
From April 1, Legal Aid for the vast majority of family disputes will come to an end. Public funding will still be available in a small minority of cases and while no exhaustive figures appear to be available, based on an estimation of my specific caseload, approximately 75 per cent of current applicants will be adversely affected.
What will the family justice system and the legal profession look like as a result, and what responsibility do solicitors have to ensure that litigants still have equal and fair access to justice?
Those clients affected are essentially going to face a three-way choice:
1.Find the money somehow
2.Represent themselves
3.Do not litigate at all
It does not require much imagination to conclude that the government would very much like a substantial number of people to choose the third option, which may in itself be of great concern. But what of those who still feel they have no option other than to litigate and what of the respondents - those who have not instigated court action but find themselves on the receiving end?
These cases often involve the most important elements of one's private life: arrangements for children, the future of one's home, pension and retirement provision. They are not matters to be taken lightly, and unlike many forms of litigation, for those affected inactivity is unlikely to be an option. That is why these particular reforms are so invidious.
As solicitors, we are going to be faced with tough decisions. Most of those working in the legal profession have chosen to commit themselves to publicly funded practice because they also have a commitment to social justice and equal access to the courts. We know, despite what successive governments have claimed, that firms that specialise in publicly funded work operate with a ridiculously small profit margin, and that solicitors in this area are not well remunerated; there are no family legal aid fat cats. There is not, therefore, ostensibly much 'slack' in the system for these firms to become pro bono operations for anyone who cannot afford their services and still hope to remain in business.
Firms are consequently going to have to offer creative funding solutions; one can expect a proliferation of fixed-fee arrangements and it may well be that firms will be willing to means test clients before determining what rate to charge. But is it right that solicitors should be put in the position of scrutinising the finances of their potential clients?
Another alternative is the face-to-face scheme in which solicitors act as advisers behind the scenes, offering a guiding hand rather than representing clients in the traditional sense. These have clear advantages in allowing clients to budget carefully for their legal fees, but clearly represent a compromise in the quality of legal representation that the client will receive. If such alternatives turn out too be insufficient, what else remains? The voluntary sector is an unlikely solution. law centres face enormous challenges themselves: our local law centre has just given all staff notification of redundancy and has cancelled its family clinic. Those that remain are unlikely to be able to cope with the potential flood of people seeking family law advice.
Will it fall, then, to the big commercial firms and niche private practices to fill the gap with pro bono advice? At first glance, such an option appears attractive: get your trainees and junior assistants to cut their teeth by taking on some interesting family work. But how many firms in today's climate will truly be able to commit to such a process, particularly since family law usually accounts for a disproportionately large slice of any firm's complaints? Family clients very often need to be dealt with very carefully and sensitively, because they are going through times of acute distress. Are these firms really going to want to take on the burden of the kind of cases where expert legal advice is necessary?
More particularly, is it right that it should be so? Should people who require - and deserve - access to the courts have to rely on a form of charity? Should we just accept that they will routinely receive a lesser form of legal advice and representation?
Whatever the range of outcomes, it is clear that the role of the solicitor and the relationship between solicitor and client is going to change, and it will not be a change for the better. Every alternative is a compromise to the principle - hitherto acknowledged as inviolate - that a litigant was entitled to approach the court with equality of arms regardless of his or her financial means so long as the case had merit. This principle was underpinned by the availability of public funding.
Every part of the family justice system will lose: clients, judges, solicitors and, perhaps most importantly, the image of the system in the eyes of the public, who will rightly perceive that the court system is becoming the exclusive province of the wealthy. There will also be a real and tangible human cost. Clients are inevitably going to experience a greater degree of stress as they struggle to deal with litigation without full access to specialist legal advice.
Most worryingly, however, there is clearly a risk of serious miscarriages of justice leading to potentially disastrous outcomes for children who, let us not forget, are the only ones affected who can always be said to be blameless.
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