Transcript The legal Profession & Other Sources of Advice and Funding

The legal Profession & Other
Sources of Advice and Funding
Funding and Other Sources
of Legal Advice
Lesson Objectives
• I will be able to describe different methods an
individual can use to fund legal services
• I will be able to describe the financial limits on
each method of State funding
• I will be able to describe the sources of legal
advice apart from a solicitor or barrister
• Law is open to everyone but legal services can be
expensive
• Litigation, the threat of and the process of taking
legal action against another person or organisation in
a dispute can be expensive
• A person is primarily responsible for paying his
lawyer’s costs resulting from the litigation
• Losing party will usually pay the costs of the winning
party and their expenses
• However, the winner may still have fees to pay as
well
• Difficult to estimate the fees in advance as there are
many variables
• Simple cases can drag on for a considerable amount
of time – Hall v Simons (2000) Cockbone v Atkinson,
Dacre and Slack
Private Funding
• Paying bill with own resources – own money
• Insurance company pay the bill – legal
expenses insurance
• Conditional fee agreement – personal injury
claims
Own Resources
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You would use your own money when instructing a solicitor to make a will or
undertake the conveyancing when buying or selling a house
More complex legal work would probably be too expensive for personal funds
Businesses have more need to pay directly for legal work – more sense to seek
advice sooner rather than later
Solicitor’s work is charged at an hourly rate plus expenses such as court fees
Rate will depend on location of solicitors – London will be more expensive – also
expertise of lawyer will push price up
The Guide to Summary Assessment Costs used by the courts:
– Up to £380 an hour – solicitors with over 8 years post-qualification experience, including
at least 8 years litigation experience, working in Central London
– From £95 an hour – trainee solicitor, paralegals and fee earners of equivalent experience
– Teesside and Devon
Some work such as conveyancing or making a will may be done for a fixed cost.
In Hall v Simons (200) – the solicitors bill that was unpaid was for about £10,500 and related
to a building dispute where the sums involved totalled a little over £20,000.
Insurance
• This is a form of risk-sharing using a legal
expense insurer
• There are two types of policy: ‘before the
event policy’ and ‘after the event policy’
• Before – a policy which can be taken out
usually with an annual premium, to provide
future cover for possible legal problems
• Some policies are limited in what they cover
and may include restrictions on choice of
solicitor, hourly rates and other expenses
Conditional Fees
• This is effectively risk-sharing with lawyers
• This is part of the change to the funding arrangements set up
by the Courts and Legal Services Act 1990, to combat the huge
cost of public legal funding
• Before this, solicitors were not allowed to offer clients any
risk-sharing arrangement
• Around 2.5 million people in the UK suffer accidental injuries
every year
• Public legal funding through Legal Aid for these costs was
withdrawn in 2000, leaving these people with the option of
paying for legal action themselves or risk sharing in some way
• Conditional Fee Agreement
• This is often known, inaccurately, as a ‘no win, no fee’
arrangement
• This is where the solicitor makes no charge if the case is lost
• However, the disbursements (costs incurred by the solicitor
on behalf of the client such as court fees, or fees for medical
reports) and the opponent’s legal charges will still have to be
paid
• If the case succeeds, the solicitor charges a ‘success fee’ on
top of the normal hourly rate
• The loser may be ordered to pay at least part of these
charges, including the success fee
• Insurance is normally taken out at the client’s expense to
cover this risk with an ‘after the event’ policy
• Contingency Fee Arrangement
• A person is not charged if he or she loses, but the
fee, if he or she is successful, is a percentage of what
is recovered
• However, this arrangement cannot be used for cases
which require court proceedings
• There are also other possible arrangements such as a
discount conditional fee where an hourly rate is
agreed as being payable if the case is won, but
reduced if the outcome is unsuccessful
• Such an agreement could also provide for a success
fee
State Funding
• Community Legal Service
• People often need legal advice: relationships, asylum, immigration,
community care
• Sometimes it is enough to provide information leaflets or to direct people
to other services, such as debt counselling or mediation
• The first part is the information available in the leaflets and on the website
– www.clsdirect.org.uk
• They provide funds direct to solicitors and to other organisations such as
the Citizens Advice Bureau
• These organisations provide funds and promote civil legal services
• This is provided in a number of categories from general information to
advice and representation – these categories are collectively known as
legal aid
• The most usual starting point is Legal Help
• Allows people with low income and little savings to
get free legal advice or help from a solicitor or
experienced legal adviser
• Lawyer must have a contract with the Legal Services
Commission
• Designed to cover everything up to and including the
preparation of a case to go to court
• Can also cover costs of mediation in non-family cases
• If money is won, then it must first be used to pay the
solicitor – statutory charge
• Help at Court then provides funding for a solicitor or
adviser to represent a person in court
• This might be used in representing someone who is
being sued for a debt or who is defending eviction
proceedings
• There are financial criteria to meet and it must be
cost-effective
• Family cases have always taken up a large part of
public legal funding – 3 types of funding available all
of which have financial criteria:
• General Family Help
• Family Mediation
• Help with Mediation
• General Family Help covers preparation of a
case to go to court and general advice on any
legal problems related to a family matter
• It also covers the costs of starting legal action
and legal representation to get a court order
and sort out arrangements following the order
• This help can cover negotiations in family
disputes if there is no mediation happening
• Legal aid for mediation in a family dispute is
called Family Mediation and is used to help
pay for the costs of the mediator
• The final part of legal aid for family matters is Help with
Mediation – this would be used to help pay for drawing up the
agreement reached between the parties or following up the
arrangement that has been made
• For other cases that a person might need to bring to court,
there is Legal Representation – this is again subject to
financial criteria, and the case must be one that the Legal
Services Commission considers it reasonable to fund – it is
also subject to the statutory charge
• Funding can also be stopped if the solicitor feels that the case
is not strong enough
• Types of cases that can be funded include consumer cases
such as claiming against the seller of faulty goods, or an
appeal to the Employment Appeal Tribunal
• Legal Representation will not usually pay for the costs of
taking a personal injury case to court, as this is covered by
conditional fee agreements
• There is also Controlled Legal Representation,
which is only representation before a Mental
Health Review Tribunal or an Asylum and
Immigration Tribunal
• In many cases there are no qualifying criteria,
financial or other
• The only other legal aid relates to criminal
cases and is dealt with by the Criminal
Defence Service
Criminal Defence Service
• Legal aid in criminal cases is organised by the Criminal Defence
Service
• 3 different types of help: free legal advice at the police station,
advice and assistance before charge, help with representation at
court
• At the police station is the right to free independent legal advice
from a duty solicitor – this has no financial or other criteria
attached
• However, this advice is not necessarily face-to-face and could well
be over the telephone
• A person can choose his own solicitor and the advice will be free if
they have a contract with the Criminal Defence Service
• On arrest, a person is given an information sheet explaining how
to get legal help
• Even where a person has not been charged with an offence, he
may need advice and assistance – this is however subject to
financial criteria
• Help with representation in court comes in three
forms:
• The first is a Representation Order – this applies in
the Magistrates’ Court and is subject to complex
financial criteria, except for those under 16 or
claiming most benefits, as well as a merits test; it
must be in the interests of justice for the accused to
be represented
• The interests of justice test is a requirement of Art. 6
of the ECHR, which states that everyone charged
with a criminal offence has the right, ‘if he has not
sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require’.
• The criteria used for the test are:
– Whether it is likely that the court will impose either a custodial
sentence or one which will lead to a loss of livelihood
– Whether the case involves substantial questions of law or evidence of
a complex or difficult nature
– Whether the accused is unable to understand the proceedings or state
their own case because of, for example, age, inadequate knowledge of
English, or illness
– Whether it is in the interests of someone other than the accused that
the accused be legally represented
– Whether the defence to be put forward is frivolous
– Whether the accused has been remanded in custody pending the trial
The recently introduced means test has not been well received by
many, as it is seen to be in conflict with the right to a fair trial.
there are no financial conditions to getting a Representation Order in
the Crown Court. However, the interests of justice test must be
passed. This is unlikely for very minor offences.
• The second type of legal aid is Advocacy Assistance - This
covers the costs of a solicitor preparing a case and initial
representation in certain cases such as anti-social behaviour
orders or non-payment of council tax
• There are no financial criteria to be met
• Finally there is free advice and representation at the
Magistrates’ Court from the duty solicitor, although not for
very minor cases
• However, one can only use the services of the Duty Solicitor at
one hearing – usually the first – and not at a contested trial,
so a Representation Order would then be needed
Other Sources of Legal Advice
Citizens Advice Bureau
• Provides legal advice as part of its service
• A charity, but gains a substantial amount of income
from its contracts with the Legal Services
Commission to provide legal advice to people with
debt, welfare benefits, housing, employment and
immigration issues
• Advice is free and where further action is required,
appropriate agencies or solicitors are contacted
• May bureaux work with local solicitors firms, giving
access to over 1,000 specialist solicitors pro bono
(free)
Law Centres
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Existed since early 1970s
Usually in less affluent areas
There are just over 60 law centres in the UK not including Scotland
Designed to help people access the legal system
May take up a case where legal aid is not available and are often
open outside normal office hours
Specialise in social welfare law
Welfare rights, immigration and asylum, housing and employment
rights
Funded from a variety of sources
Hold contracts with Legal Services Commission to provide casework
services and receive grant aid from local councils
Employ solicitors, barristers, legal advisers and community workers
Many lawyers volunteer to help in their nearest law centre as part of
pro bono work
Other Sources
• Legal advice can sometimes be obtained from
solicitors offering a fixed fee or free interview at a
special session after hours, or on a Saturday morning
• Advice is usually available from a person’s trade
union, not just on employment law matters
• There is also legal expenses insurance either through
a specialist policy, home insurance, car insurance or a
motoring organisation
• There is often free advice in the media; it often
appears in newspapers printing articles on consumer
affairs
Public funding system – Legal Services
Commission
Legal Services Commission
Community Legal Service
Solicitors’
firms
Criminal Defence Service
Solicitors’
Not for profit firms
organisations
(NfPs)
NfPs
Public
Defender
Scheme
INFORMATION PROVIDERS: Libraries or community centres:
leaflets, ref. material, access to CLS directory &/or website
SPECIALIST HELP
PROVIDERS Trade
unions; RAC & AA;
Shelter (450 NfPs)
on their specialism
Community Legal Service
website www.clsdirect.org.uk
Providers of legal
services
SPECIALIST HELP PROVIDERS
CABx and Law Centres may also be given
contracts to provide government-funded
legal advice, especially to counteract
advice deserts
GENERAL HELP
PROVIDERS advising
on action, giving
basic assistance,
e.g. many CABx
SPECIALIST HELP PROVIDERS
About 3,600 solicitors’ firms have contracts with
Legal Services Commission.
(But
this is less than 30% number of firms under
previous scheme)
1.Advice deserts
•Especially in rural areas
•Not enough providers have
contracts with LSC
•Rates of pay too low
2.Eligibility levels
•Only those with the
very lowest levels of
income qualify for help
Problems with
funding of civil
cases
3.Lack of funds
•The budget is capped, so
some cases will not be
funded simply because
there is no money left
4.Non-availability
•Funding is not
available for all civil
claims
• Conditional fees
instead
Are Conditional Fees Working?
Yes!
No!
• Have been used in over • Poorest clients cannot afford insurance
50,000 cases for
or disbursements
personal injury claims • Those with weaker/riskier cases find it
 i.e. increased access to
difficult to get a solicitor
justice for many
• Difficult to estimate the cost of some
• The government is
personal injury cases which means that
considering how to
solicitors lose out eventually
make the system
• Large number of challenges re enforcing
simpler so that
the agreement
challenges are less
• Challenges to front loading of costs on
likely
the basis of being out of proportion to
• If a claims firm is used
the stage the case has reached
this also increases
• Two of the largest claims firms have
access to justice – for
gone out of business, suggesting that
those who would not
there is not sufficient profit in CFAs to
go to a lawyer
keep a business going
CABx
450 NfPs – RAC, AA, Trade Unions,
•Began in 1938
Shelter, etc - within their specialism
•About 1000 in the country
•Free advice
Criminal Defence Service
•Duty Solicitors
•Advice and assistance
for 1 hr
•Representation – but
merits test
Free/Cheap
Advice
Agencies
Free Representation Unit
•Since 1992
•Run by the Bar
•Barristers will represent clients in court at
no cost
•2000+ cases / yr
Law centres
•First one in 1970
•Free advice to those in
their catchment area
Cheap/free initial
interviews offered
by solicitors
ALAS (Law Society):
•Accident Legal Advice Service
•Free initial interview
•Also Law Society’s Accident Line
- Freephone service to put accident victims in
touch with solicitors
Not for:
•Non-imprisonable offence
•Detention on a warrant
•Detention in breach of bail
•Drink/driving offences
duty solicitor schemes
At police
station or
other
premises
•Covers cost of solicitor
to prepare defence before
going to court
•Representation at court,
including issues such as
bail
•Barrister if required
Telephone
advice now
preferred
rather than
seen as a
defect!
One
hour’s
work
only
Not for:
•Non-imprisonable offence whilst
on bail
•Trials in magistrates’ courts
without representation order
advice and assistance
Criminal Defence
Service
representation
Merits test –
Interests of Justice test
(see next slide)
Means test:
•Only those on low incomes will
qualify
•But duty solicitor at magistrates’
court can still see all in custody –
no charge
Financial eligibility – free for:
Those receiving income support,
job-seeker’s allowance, state pension
credit
U 16s, full-time students U18
•Means test for others