Technology can help maintain the provision of legal services for the poor – we cannot allow ministers to give up.
I have become a late, if enthusiastic, adopter of Apple products. In the course of a two-year project to write Face to Face Legal Services and Their Alternatives: Global Lessons from the Digital Revolution with Professor Alan Paterson, I bought no fewer than three. They are rapidly changing my personal and professional life. It would be very odd if technology revolutionised everything except legal services for the poor. That is the message of this report.
In raising the issue of changes to legal practice, let’s get some things clear. I have fought the good fight for legal aid, including 12 years at the Legal Action Group. It breaks my heart to see what was the best access to justice provision in the world being broken up. Nothing can replace the national network of face-to-face legal services, using private and not-for-profit providers, that we had before this government came into office. But let’s face it, nothing is going to bring it back either. So, there are two issues to consider. How do we understand what is happening? What, if anything, can we do about it?
Co-operative Legal Services may or may not succeed commercially, but it has already proved a game-changer. Its website links a national brand with a wide range of differently packaged services which use ‘unbundling’ to bring down the fixed costs about which it is transparent.
Traditional high street practice will have to work hard to beat what it represents; though, in places, it probably still can with the right presentation of the value of personal contact. But, behind Co-op come a whole army of nationally focused providers with similar packages: QualitySolicitors, and a band of foreign imports such as Slater & Gordon, Jacoby & Meyers, LegalZoom and RocketLawyer.
Personally, I was always against third-party ownership of law firms on ethical grounds, but the profession backed the legislation and now lives with the consequences. These include a wide diversity of new providers going for what Professor Richard Susskind calls ‘the latent legal market’, made up to a considerable extent of those who once would have received civil legal aid subject to a contribution but are now excluded.
New forms of practice are emerging. Roadtrafficrepresentation.com is a website that gives lots of free advice in exchange for winnowing out the more difficult, and lucrative, cases to handle in a traditional way. Slater & Gordon has collaborated with the Cycle Touring Club over an app for cyclists to use after an accident. This is particularly dear to my heart since I – a litigation lawyer at heart – coped appallingly the last time I got knocked off my bike. Integration of video communication with document assembly is providing a fertile field for ‘face to face’ services where the lawyer is not physically present – as deployed by firms such as Epoch in its packages for bulk providers.
Overseas, public funding has played a greater role at the cutting edge. The US Legal Services Corporation has played a strategic role in developing ground-breaking projects and is now investing heavily in experiments in how to use mobile phones. Places such as New South Wales have developed province-wide website-led delivery supplemented by telephone advice and then, if needed, traditional services.
One of the most exciting developments is in the Netherlands where the Dutch Legal Aid Board has invested in a programme (rechtwijzer.nl) that dynamically leads someone through a relationship breakdown towards a mediated solution using a website, and facilities such as online chat and back-up from local advice centres. It will not deal with the recalcitrant evaders of responsibility but it looks likely to help a lot of people through a difficult time.
In this context, our ministers are just not cutting the mustard. A rump telephone service for a restricted range of law is insufficient. They have to deliver a justice system that provides equal justice for all, not just Russian oligarchs, with less money.
So, what is to be done? We should certainly fund a digital-first strategy, but not a digital-only one. We have to reckon on an 80:20 principle. Many people can be helped by digital means but probably a fifth of the population cannot, though we should try.
But, something like 12 million people cannot just be discarded because they do not have the language, skills or confidence to use a website or have access to my beloved suite of Apple products. This is where the debate has to be. How can we use digital delivery mechanisms to maintain universal, coherent, independent provision with the money we are realistically going to get? We cannot allow ministers just to give up.
Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice