Transcript The Legal Profession - Teaching With Crump!

The Legal Profession
Evaluation
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
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
These principles need to take into account the fact that there is an unmet
need for legal services, arising from a number of factors:
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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.
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 lossmaking)
• 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
• 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
• 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
• 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
• 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
• 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
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
• 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
• 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’
• 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
• 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