Reflections on our 2020 report
The Panel’s 2020 report was published back in November 2014. Since this time it feels like many of the themes in the report have come up time and time again and I’ve found myself asking the same questions.
Question one: Is access to justice the same as access to a solicitor?
We’re all agreed that the core challenge ahead is to extend access to justice to those currently excluded because they cannot afford legal services. That’s a fundamental need. And combined with a number of broader forces, including technology and the effects of liberalisation, it is already resulting in less involvement by lawyers in many of the tasks that previously made up their staple diet.
Consumers are seeking and will continue to seek alternatives to lawyers or use them in different ways. Our research suggests 1 in 5 of legal transactions already involve some degree of unbundling, a reflection of the 2020 report’s coverage on ‘self-lawyering’. Our predictions of self-lawyering have met with incredulity among some – the big comparison that’s often made is that we’ll be suggesting patients don’t need doctors next, or that they should operate on themselves! No – we don’t foresee patients operating on themselves, but self-management is well established as part of the care programme for those with long term conditions. So the parallels aren’t as far-fetched as some might think.
The bottom line? Self-lawyering is already happening to a large degree. The Money Claim Online service issues more claims than any other county court. One automated document provider has 300 templates covering family, wills and probate, landlord and tenant, and much more. These are all situations where lawyers used to provide an end-to-end service but are now absent or playing a smaller role.
Question two: How do we ensure the right consumers self-lawyer?
Where do you draw the line on self-lawyering? The experience of our research into online tools, focusing on divorce, demonstrates that there appears to be a high degree of self-selection among consumers making rational choices about choosing the online route. For example, people consciously make the online choice thinking it’s the best option for them, and most online divorces are amicable, follow a period of separation – it’s not for everyone but it is for some.
The consumer interest here lies in resolving the tension between cost and quality; determining when a lawyer is needed and when alternatives can safely suffice. How can we help consumers to make informed decisions about when to use these services and when to seek professional advice? And for providers already offering unbundled services, how are they making the ‘diagnosis’ and working out when to offer and when not to offer unbundled services?
We worry that vulnerable consumers who lack confidence or who aren’t online will get left behind. Computers cannot replace the human touch in every situation. But the scale of the access to justice deficit mustn’t be underestimated and now is the time to be open to solutions – whether online tools, unbundled services or, dare I say, unregulated providers.
Question three: How can the role of the unregulated sector improve access to justice?
And that’s deliberately ‘how’ – not ‘can it’ or ‘should it’ but how. Regulated lawyers are part of an increasingly diverse ecosystem of legal services delivery; improving access will require looking at how the whole system will work in future around consumer need.
And this includes the unregulated sector.
Everyone has something to say about McKenzie Friends. But this pattern of unregulated providers emerging to fill a gap in demand which lawyers cannot serve – offering a more affordable way for people to resolve their legal issues – may repeat itself in other sections of the market. So what’s the response? It might involve making difficult choices in imperfect circumstances, but this cannot be avoided or ignored. Nor should it be dismissed.
Question four: Should you get the same quality if you don’t pay?
The ‘pro bono protocol’ has at its heart that you get the same quality of service as you would if you were paying. But as reliance on voluntary or cost-effective services increases, this issue has prompted more questions than answers.
- McKenzie Friends – is there a difference between fee-paid and non-fee paid?
- Is bad practice prevented or reduced by the removal of a fee?
- Is the quality obligation lessened if it’s free or if there’s no payment?
- Can legal needs be met by paid lawyers, pro bono lawyers and the voluntary sector/ free advice providers alone – will that be enough?
I leave you with these questions just to get the discussions started.