An access to justice problem that needs a solution
This week we launched our major report on legal services in 2020 and how regulators should prepare for the future. In many ways this hasn’t been a forecasting exercise; it’s been about better understanding current trends within legal services, other markets and consumer behaviour more widely. And the Panel is really well placed to do this because 5 years in we have a bank of evidence about what has and hasn’t changed for consumers; about their attitudes and assumptions about law and the impact this has on their behaviour – we have evidence to replace anecdote with and that’s precisely what we’ve done.
We’ve started with the consumer. Not as a secondary or after thought or as ‘one of the equally important stakeholders’. And I suspect it’s the real and worked through consequences of putting the consumer at the centre that has provoked much of the debate and response to the report. For too long, a lawyer-centric viewpoint has dominated whereas the user should be placed at the heart of the justice system.
In the report we highlight four broad and interrelated developments under the headings of self-lawyering, the influence of technology, consumer behaviour and market changes.
Our predictions of self-lawyering have met with incredulity among some, but it’s already happening to a wide degree. Litigants in person appear in three-quarters of civil and family cases. Our research suggests 1 in 5 of all legal transactions already involve some degree of unbundling. 15,000 people registered a power of attorney online last year. The Money Claim Online service issues more claims than any other county court. 60 million disputes involving Amazon and PayPal customers have been resolved through online dispute resolution technologies. 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 far smaller role.
The core challenge is extending access to justice to those currently excluded from the market because they cannot afford legal services. Research shows that the cost of legal services has created large unmet needs in households, small businesses and charities. Isn’t this at the heart of self-lawyering – an opportunity to meet an unmet need? And how should regulators be responding? This needs to work for lawyers and consumers alike so how can the regulatory framework give lawyers the confidence to unbundle their services whilst meeting their professional obligations? How can we help consumers to make informed decisions about when to use these services and when to seek professional advice?
Once you get past the headlines and delve deeper into our report, you’ll find us call for a debate on where to draw the line on self-lawyering. We worry that vulnerable consumers who lack confidence or who aren’t online will get left behind. And we make clear that computers can’t 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 unregulated providers such as McKenzie Friends – that offer more affordable ways for people to resolve their legal issues. This will involve making difficult choices in imperfect circumstances, but this cannot be avoided or ignored. Nor can it be dismissed.
In an excellent presentation at the recent Legal Futures conference, Canadian academic Jordan Furlong, identified self-lawyering as one of nine future trends and made a persuasive case that self-lawyering is actually good for lawyers. As one solicitor wrote to me this week, “good lawyers encourage people to understand the law that applies to them and to be self-sufficient”. He’s right. It means lawyers can focus on the more demanding work that their training was designed for. Indeed, experience of unbundling in the US, where such services are increasingly common, shows that rather than taking business away from lawyers, this has actually opened up new markets. That’s because consumers previously faced an all or nothing choice, which excluded many from justice altogether, whereas people can afford to buy some legal help.
This isn’t about being anti-lawyer just as it isn’t about being pro-McKenzie Friend. It’s about an access to justice problem that needs solving. And just as the problem is nuanced and complicated, so is the solution