Keeping it in the family

Now that the concept of a Public Defender Service (PDS) has been established - if not yet accepted - in the field of criminal law, could a salaried scheme be established for publicly funded family law work?

The suggestion was put forward in a government-commissioned report by Newcastle University's family studies centre, which will be used to inform the Department for Constitutional Affairs' family law policy (see [2004] Gazette, 16 April, 1).

It is also thought to be a move the Legal Services Commission (LSC) is considering.

The idea comes against a backdrop of the finding that one in five divorce clients surveyed by researchers was either 'very' or 'fairly' dissatisfied with the service from their solicitor.

The report pointed to the Family Law Office (FLO) pilot project running in Alberta, Canada, which aims to improve access to justice for family law litigants of limited financial means in a cost-effective manner.

The FLO was begun as a reaction to a falling number of lawyers prepared to take on publicly funded family work, a story that rings true in England and Wales.

The LSC let 4,286 family law contracts in 2000; this fell 16% to 3,595 by 2003, although the number of matter starts in that period rose 6% to 339,757.

The FLO is run by the Legal Aid Society of Alberta, a body funded in the main by the Alberta provincial government, with some of the expenditure reimbursed by central government.

It also receives money from the Alberta Law Foundation, which allocates 25% of the funds it receives each year from the interest earned on lawyers' client accounts.

There are FLOs in Calgary and Edmonton, and the idea was that all legally aided cases in those cities would be referred to it, unless there was a conflict or the client had a long-standing relationship with a private lawyer.

However, in practice, demand has outstripped capacity and both offices have had to refer some clients to the private bar.

The office aims to provide a 'team approach' to client services, offering social as well as legal advice.

It places an emphasis on alternative dispute resolution and mediation where possible.

The 29 FLO lawyers work in small teams along with three 'family resource facilitators' - two social workers and one psychologist - who work with the client and lawyer on ancillary concerns, such as financial assistance, shelter and housing, counselling, parenting and life skills.

A database tracks clients as they are referred to other services, allowing the lawyer to case-manage the whole process.

The four-year pilot began in 2001 and has an estimated cost of C$2.7 million (1.1 million).

It follows a similar initiative begun in Alberta in 1993, which proved a successful fusion of legal and social services skills for young offenders.

The Newcastle report found: 'Initial outcomes [from the FLO] are positive: the family lawyers are committed to the team approach and believe that they are able to provide a better-quality service to their clients; and settlements appear to be more durable.'

Nancy Brown Medwid, chief executive of the Legal Aid Society of Alberta, says: 'There is a significant benefit to be had in establishing offices comprised of staff lawyers who practise exclusively in one area of practice, assisted by other professionals, which approach clients' issues in a holistic manner.

Both these aspects - of exclusive practice and of a holistic approach - combine to present a level of service which is perceived as being quite high in quality.'

The FLO pilot is currently being evaluated to see whether it should be put on a formal footing, and Ms Medwid said this will investigate whether the offices have actually proven cost-effective.

For Kim Beatson, chairwoman of the Solicitors Family Law Association, a salaried service offers nothing that the private practice model does not already - she says many firms have embraced a more holistic service, employing counsellors, encouraging mediation and offering a 'collaborative' approach aimed at avoiding unnecessary acrimony.

'I doubt whether the [salaried] scheme has any economies,' Ms Beatson adds, pointing out that public and voluntary service salaries are already higher than private practice can match in several areas, such as housing law.

Criminal law solicitors have complained throughout the PDS pilot that it has been put on an unrealistic economic footing - one that no law firm could hope to match.

From the start, the relatively high salaries on offer were a bone of contention, with solicitors paid 34,000 and office heads 50,000.

Richard Miller, director of the Legal Aid Practitioners Group, says 'different ways of delivering legal services should always be explored', but warns that the PDS experience is that set-up costs for salaried services are too great.

The underlying principle of the PDS has also been the subject of much debate, given that it is lawyers employed by the state advising clients facing action by the state.

A family scheme would not face the same conflict, he acknowledges.

Ms Beatson says there is no evidence that a salaried service would provide better quality, arguing that it offers no solution to the shortage of family law solicitors in rural areas and outer London.

But in criminal law, the LSC sees the PDS as part of a mixed economy of provision, with private lawyers still playing a key role.

The same could happen in family law.

Family lawyer Hilary Siddle, who chairs the Law Society's law reform board, is also unconvinced that a salaried service offers anything superior to what is currently on offer.

'Many people who contemplate divorce have unrealistic expectations,' she explains.

'What we need is to ensure that solicitors keep their clients fully informed and help them to understand what is a realistic outcome.

I do not believe that a salaried legal service will be any better at satisfying clients' expectations.'

But in an era when there is a strong emphasis in the legal world on innovation and alternative methods of practice, the argument for at least piloting a salaried family law service could yet gain ground.