Affordable justice: a pragmatic path to greater flexibility and access in the private legal services market

28 Nov 2013

The law, and the system that is structured around it, are designed to protect the interests of ordinary people. Yet the conventions and expense associated with this system mean that the majority of the population feel shut out from its redress – sandwiched between eligibility for public assistance and a realistic capacity to meet the costs of the private legal market.

This is despite ongoing government efforts to address and understand acute legal need in the community; and despite the fact that the majority of private practitioners work outside the environment of the larger corporate firms, many putting considerable time and energy into increasing access to the law. Equally, some practitioners have developed new and innovative ways of facilitating this access, from conditional fee arrangements and representative class proceedings, to the increased use of technology and more strategic provision of pro bono services.

Overall, however, these innovations have not reached a full range of consumer legal matters, nor have they been developed by the profession in any co-ordinated way – with the basis on which most legal fees and associated expenses are charged continuing to drive consumers away. As such, legal practice is falling behind other professions in terms of its readiness to adapt, and to dismantle the unsustainable division between public or pro bono assistance on the one hand, and prohibitive expense on the other.

This Report, commissioned from the Centre for Innovative Justice (‘the CIJ’) by the Commonwealth Attorney-General’s Department, aims to break down this division – highlighting existing and emerging innovations and proposing their adoption on a more widespread basis; supported, in turn, by government and regulators.

In doing so, the Report argues that legal practice needs to be structured in a way that makes it a more realistic prospect for a larger proportion of the population – shaped around the delivery of what is, in effect, an essential and very ordinary service, rather than as an overblown luxury that is beyond most people’s reach.

Categorised into broad themes of certainty and choice for consumers; competition in the market; and common sense in conceptions of the law, the Report addresses such issues as:
—    The lack of transparency and predictability about what lawyers actually do charge, rather than just what they can charge
—    The need for a greater consumer focus on the legal services market through the potential establishment of a Legal Consumer Advocate
—    The need for greater analysis of areas that would adapt to forms of price certainty, as well as for governments to lead the way in purchasing legal services on this basis
—    The benefits of reducing overheads and passing efficiencies on to clients
—    The benefits of offering limited scope representation, or discrete task assistance, to consumers who may only have enough funds to ‘opt in’ to legal advice at certain points in proceedings
—    The need to increase the provision of pro bono services to individual, rather than just organisational, clients through a combination of incentives
—    The potential for subsidised private and public legal services
—    The need for co-ordinated business model development and a focus on entrepreneurship, including linking the continuing excess of law graduates to an increase in sole or small legal practices
—    The need for greater consideration of regulation as it relates to risk
—    The need for greater consideration of legal expenses funding sources, from co-contribution and loans schemes, to Legal Expenses Insurance
—    The need for more targeted use of legal skills – both through direct briefing to barristers so that consumers may make strategic decisions about how they spend their limited means and through more considered engagement of mediators and non-legal professionals in certain fields.

Rather than turning huge profits, therefore, the CIJ believes that an affordable justice system means turning equations on their head – targeting lawyers’ time more efficiently; reducing overheads; reducing unnecessary regulation; dispensing with time-based billing models; increasing client intake; and, most importantly, improving consumer confidence in the market.

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