Friday, January 29, 2010

How Is Access to Essential Services Guaranteed?

(Thanks to Daily Telegraph)

Since my visit to CES in Coimbra, Portugal recently I've been thinking about the changing landscape of access to justice. For me the formal state system of courts has assumed a much less dominant role in the last 10 to 15 years. And even though legal aid in the UK has just enjoyed its 60th birthday, it only applies to criminal cases and a few types of civil matters. And government is seeking to reduce legal aid expenditure in the future.

So what has happened to the landscape? How has it changed? And has it improved or deteriorated?

Two events have developed my thinking. One is encountering the research project on civil justice systems and access to justice at Oxford run by my colleague Dr Magdalena Tulibacka. The other is attending a recent seminar on the delivery of essential services held by the Centre for Consumers and Essential Services (CCES) at Leicester.

The Oxford group has been mapping non-judicial dispute resolution systems. Their list has over 100 institutions involved in this activity, from large organizations such as the Financial Services Ombudsman to small ones like the Double Glazing and Conservatory Ombudsman. I recommend their paper Civil Justice in England and Wales--Beyond the Courts. This clearly shows that courts are minority institutions in access to justice today.

The CCES seminar was on the delivery of essential services and human rights. The lead discussion paper What are the effects of changes in the delivery of essential services--how do providers relate to consumers? argued that we are living in a radically altered landscape. Communication between consumers and providers had moved away from face to face interaction to electronic communication, either through the internet or with call centres in places like India.

Tony Herbert, social policy officer for the Citizens Advice Bureaux (CABs), demonstrated that much of the work done by CABs was navigating the complexities of life which mainly mean communicating with these remote centres with all the accompanying problems of miscommunication that inevitably arise. Language difficulties, hearing impairments, limited or no access to the internet or no understanding of it, even being able to express a problem cause difficulties for many people. This is especially so when providers work off inflexible scripts.

Andrew Kaye of the Royal National Institute for the Blind put forward the idea that there are gradations of essentialism, that essential services aren't just the basic utilities but can include all forms of communication such as computers and television or radio.

Some of the providers explained that it wasn't always easy to discern if there was a problem with a customer--blind, hard of hearing don't necessarily come across the phone line.

The result is that access to justice has come to mean something more than its original purpose. It now incorporates the difficulties of coping with modern life some of which are included within our human rights.

The question is what role does the state now have in access to justice? The courts still exist and are busy, lawyers are earning fees, but the vast majority of "trouble cases" are not resolved within the court system. It is too remote, slow and expensive. The informal modes of dispute resolution now predominate.

To an extent the state is content with this. Instead of having to play a direct role it can assume the guise of regulator of these different institutions. It has not yet done so with many of them and it may not. But we are going to have to teach our students how to find their way around these new systems. And that's presuming we know our way around.

Friday, January 22, 2010

Lawyering in India

(lawyers in India: thanks to BBC)

An interesting blog post on lawyering in India came my way from exploring india:a blog about law, culture, and travel in india. The writer contrasts India and the US with the US having over a million lawyers (1 lawyer:300 persons) and India having 700,000 lawyers (1:1,125).

Access to justice is difficult and there is little or no institutional support for it. On top of this is the endemic corruption in government which means cases are lost in the system. For example, a case involving government officials charged with sexual assault and money laundering has been "pending" for 19 years.

The BBC news website also carries an informative piece on outsourcing to India, where the picture above comes from. It shows Indian advocates plying their business in their offices near the courts. It's not atypical.


Wednesday, January 20, 2010

I Hate Jeremy Till

First thing--I don't hate Jeremy Till. He is a very nice guy. It's just that I read his book during the final stages of writing an article and it changed the way I thought about my topic which I didn't want to happen. It's not his fault: it was mine for reading it.

The reason I bring his name up in vain again is that I gave a talk today to Part 3 students in Architecture. This is where budding architects are exposed to legal, professional and managerial aspects of their future careers. After this they are independent architects. As part of the course I am asked to give the "client's perspective" especially as I have a television programme to back it up.

So I entitled my talk, "Why I hate Jeremy Till": reasons being:
  1. He trained the architects who designed my house.
  2. Somehow or other he got people interested in a fiendishly complex heating and hot water system made by Viessman which only one set of plumbers in Kent know how to fix. Moreover, the bloody thing could probably supply the entire neighbourhood.
  3. His own house made an early appearance on Grand Designs.
  4. And of course he wrote that bloody (but very good) book.
This is his house

After I explained the reasons to the audience they began to understand what I was trying to do. I claimed and still hold that the emotional labour involved in these types of projects is huge and usually ignored. It's ignored in particular by architects, lawyers, contractors and anyone else involved except for the poor, bloody client who doesn't realize what he's let himself in for.

The client is about to engage in the dirtiest type of psychological, urban guerilla warfare. And escape is impossible and if attempted is catastrophic. The client is gulled into a false sense of security told that all will be fine, don't worry.

I remember when first discussing the project with my architect, I had proposed a simple extension to the house.

He said, "You know, John, for a little more money you could do the entire house."

I believed him because I heard little whereas he was really saying MONEY. Fool!

I wanted my audience to know that communicating with the client helps and is necessary. Was it really my role to stand in between the architect and builder because they were about to punch each others' teeth out? At the end of the project my first reaction was: if someone comes along and offers me some money, I'll sell.

I got over that and learned to love and live in my house but it was in spite of and not because of what those people did.

Friday, January 15, 2010

The Law: Business or Profession?

Julius Henry Cohen

At a recent seminar on the professions a participant reminded me of a book I had referred to in passing that was written nearly a hundred years ago. I decided to hunt it out.

New York City, 1916, a book with the provocative title, The Law: Business or Profession?, was published. It's author, Julius Henry Cohen, was born in the 1870s, educated at the night division of New York University Law School, practiced law and wrote extensively (on, eg. commercial arbitration preparing the handbook for the Chamber of Commerce).

To get a flavour of the man, there is a 1913 New York Times interview with him on his role as "controversy minimizer" in the garment workers strike.

I first encountered Cohen many years ago when I was struck by his book title which seemed remarkably prescient as I was studying large law firms. When I was doing my PhD dissertation in Chicago the law firm I was studying was mostly Jewish. Discrimination still existed and flourished even.

In the early part of the 20th century the Bar had moved to keep out all minorities: only white Anglo-Saxon Protestants were invited. One of the prime movers was Henry S. Drinker of Philadelphia.1 Drinker believed Russian immigrants hadn't been able to absorb American ideals of fair play and therefore didn't know when they had gone astray. Cohen argued that the Russian legal system and the profession itself fostered these dishonorable mores and this was the background the immigrant drew on.

Cohen's purpose in writing the book was to reinvigorate a sense of professionalism in a bar that was riven by racism, class hatred, and duplicity. He analysed the Bar from a perspective that discounted these prejudices. If lawyers were bad then it didn't matter if they were Russian, Jewish or WASP; they were to be denigrated. Conversely, their professionalism did not depend on their ethnicity or other characteristic. For Cohen ethics had to be unitary and apply to all.

He distinguished between the commerce of business and the higher calling of law. Lawyers were not merely hired guns but "are independent officers of the court, owing a duty as well to the public as to private interests." (See Levine's paper.) Cohen was not against corporate law per se, but he opposed the crass commercialization of legal practice that would denude it of moral culpability for its actions both within the bar and outside.

Cohen's ideas had resonance in the 1930s when Karl Llewellyn wrote of the "law factory" that appealed to the ablest minds and concentrated on business to the exclusion of the wider public interest.2

There were further resonances. Some of the problem lay in the immense variability of legal education. Law schools themselves had become businesses devoted to the pursuit of profit emphasizing the commercialization of law. Charon QC points us to the modern day equivalent with English for profit law schools such as BPP.

And, of course, Cohen objected to advertising by lawyers. What, then, would Cohen make of today's legal topology? He would see mega-law firms, endless advertising of lawyers' services, immense competition among law schools and their graduates, and a fumbling over the appropriate level of regulation/ethical commitments.

In the UK we have, I think, the perfect laboratory for Cohen's analytical powers. On one side we have the Law Society telling students not to come to law school because there are "too many" lawyers; on the other we have law schools--not for profit and for profit--selling themselves in the market place not only to domestic students but also to those throughout the world. We have law firms saying they adhere to values that empower and applaud their employees who then lay them off in the financial crisis under the rubric of restructuring and refocusing their practices. (And preserving their partners' PEPs.)

And we have the advent of external investment and ownership of law firms and legal practices. Already extant in Australia and set to start in 2011 in England, Cohen's ideal of the professional lawyer will become a thing of memory for many. There will be an elite who may embody some of those values dear to Cohen. But what is unfortunate for Cohen is that commercialism is driving out professionalism and concerns of public interest and even persuading the state to lessen its role in welfare and rights.

Will the legal profession oppose this or is it an inexorable drift that no one wishes to halt?

More anon.

1. In the spirit of openness, I once clerked at Drinker, Biddle & Reath.
2. Karl Llewellyn (1933) "The Bar Specializes--With What Results?" Annals 167.


Tuesday, January 12, 2010

India Flies

(James Law's Cybertecture Egg for Mumbai)

India is traditionally protectionist towards its legal profession. Foreign law firms aren't permitted and have been rebuffed when they tried to enter the market. Moreover, government moves to liberalising the legal market have stalled.

Two areas in the Indian legal market are growing: law firms and LPOs.

Indian law firms are growing and spreading. reports of new firms starting as breakaways from more established firms and even setting up satellites in Singapore. For example, a new firm, Tatva Legal is being formed from 20 to 30 lawyers splitting from Dua Associates. It will have offices in Delhi, Bangalore, Hyderabad and Mumbai. It expects to grow to around 60 lawyers specialising in corporate and M&A. (By comparison Dua had about 300 lawyers.)

The other part of the Indian success story is in legal process outsourcing. For example, see Rainmaker, an Indian legal newsletter, for stories on LPOs and the UK and US law firms that are outsourcing their back office operations to them. What is also of interest is the personnel who are moving from the UK and US to work in LPOs. But LPOs are not exclusive to law firms. Companies are outsourcing their work too. Rio Tinto is outsourcing some of its inhouse legal work to CPA Global. CPA, interestingly, was originally set up by UK patent attorneys in 1969, and now combines intellectual property services and legal process outsourcing.

LPOs are becoming part of the multidisciplinary movement. reports an LPO joint venture between a Kolkata law firm, Khaitan & Partners, and a US health insurance and business process provider, Fox Insurance Company in New York. The LPO and BPO would work together specializing in US healthcare law. The BPO already has 150 people working in it and the LPO is expected to employ around 35 lawyers.

As restricted as it is, the Indian legal market already displays remarkable entrepreneurialism far ahead of the UK legal market. Just as it has in the IT market. It will be interesting to observe how the UK market responds when alternative business structures take off in 2011.

Monday, January 11, 2010

I Wonder if It Works?

Just occasionally something comes along and you wish it were true...


Saturday, January 09, 2010

Have Your Say on MPs' Expenses!

(Thanks to Phillie Casablanca)

If you want to have your say on MPs' expenses, you have your chance now. IPSA (Independent Parliamentary Standards Authority) has put its consultation online. It doesn't take long to complete and there is a downloadable version if you prefer.

The consultation is open until February 11, 2010.

Most of the questions are of the yes/no variety but there are comments boxes which you could have fun with in a creative, but, of course, facilitative way. This may be one of those situations where imagination can make a significant contribution to public life.

Do it!

[Hat tip to Charon QC]


Thursday, January 07, 2010

Do You Know What Lawyers Do?

(Thanks to rutty)

When I lived in the East End of London, I acted as a kind of bush lawyer for my neighbours. All sorts of problems came up: how to keep disability benefits going; how to get a new license for a pub; how to deal with a stolen credit card; and what to do when a decree nisi hadn't been converted into a decree absolute with the result no benefits could be claimed.

All of these people avoided going to lawyers. Lawyers were expensive, remote, and alien. I wasn't.

So when the Legal Services Board published research recently with the headline:

68% of Consumers Have "Little or No Knowledge" of What Lawyers Do

I wasn't surprised. (Hat tip to Charon QC.)

According to the LSB's research more than 60% of respondents had used legal services, and 53% of them within the past 5 years. Did they shop around for the right lawyer? No. Only 14% did that. The purchase of legal services appears to be crisis buying rather than pleasure-based purchasing.

Of course, the above applies mainly to individual consumers rather than business users. Having said that I should modify this statement because small and medium enterprises (SMEs) do have difficulty in finding appropriate and cheap legal services. This is why groups such as the Federation of Small Businesses run legal advice schemes for their members.

The basic problem with most research in this area is that our definitions of legal needs are fuzzy and imperfect. Early studies by the American Bar Foundation showed that the public only obtained legal services for a small proportion of their legal needs. Indeed, a widely-quoted paper on the life histories of disputes, for example, showed that the most common form of dispute resolution is "lumping it".

Bert Kritzer looked at the studies on legal needs in a 2008 paper, Examining the Real Demand for Legal Services. He identified the main problem as a lack of clear baseline data. We need to survey the entire population. There are indications in the extant research (in the US) that cost is not the determinative factor in the use of legal services, but rather lack of knowledge.

Lack of knowledge comes in two forms. First, there is the lack of understanding that a problem might have a legal aspect, eg. stopping of welfare benefits. Second, there is a lack of knowing that a lawyer might be able to help in this situation.

It is these types of knowledge deficits that open opportunities for ambulance chasers, debt consolidators, and claims handling companies who are eager to prise money out of clients than solving their problems.

Lawyers are to blame if consumers don't understand what they do. Despite changes in legal procedure the abandonment of legal Latin (in the UK), the major growth is in the use of ombudsmen and other informal resolution procedures. Institutions that don't require the intercession of lawyers.

And this is where Tesco Law will make its impact. With simplicity, ease of use, friendly representatives, transparent costings, extended opening hours, ready communication, and a firm quality control.

At the moment most lawyers haven't a clue how to respond to that and that is assuming they are aware there is a problem.


Monday, January 04, 2010

The Future of Global Law...

All you need to know....

(Thanks to Peter D. Lederer)

Start the New Year Right with Charon QC's Blawg Review #245

Charon QC is one of our more esteemed legal commentators. He provokes, he stimulates, and he antagonises all the right people. What more could you ask for?

Go and read his Blawg Review #245 in which he tells us "You are unwise to lower your defences".

Last year in Blawg Review I took on the role of the Lord of Misrule. It appealed to me on this, my fifth Blawg Review, to start with a welcome from the Baron Mandelson of Foy, Prince of Darkness, First Secretary of State, Secretary of State for Business Innovation and Skills, Lord President of The Council and Witch Finder-General for H M Government….

”You are unwise to lower your defenses”

I have no theme – other than to look at as many good blog posts and bloggers as I can under various quasi-random headings. I can’t visit or cover every blog – caprice is my theme if any. I would also like to wish you a Happy and, being lawyers, a prosperous New Year – although I do appreciate that some criminal and family law practitioners in England & Wales may start crying or laugh in a maniacal way on the matter of prosperity, given the Ministry of Justice’s curious passion for reducing access to justice in our green, pleasant and sceptred land.


Sunday, January 03, 2010

Unto us a new regulator is born!

(Banksy "Barely Legal")

January 1 issued in a new decade and a new regulator for the legal profession. The Legal Services Board (LSB) came out of its shadowy limbo as a fully-fledged regulator.

The LSB was envisaged by the Clementi Review as a super-regulator that would control the front line regulators of the various occupations that make up the the English legal profession. The legal profession here has always been multi-faceted. Even in the 15th century there were around a dozen groups in the legal industry.

One of the key aspects of the reforms is the separation of the representative bodies from their supervisory/regulatory duties. This combined portfolio of tasks prompted scepticism from a jaded public and government. The regulatory bargain or professional bargain with the community (as espoused by the functionalists, say, Parsons) had collapsed, if it ever existed. Another less elegant way of putting it is: Get real!

Regulation is only one of the LSB's responsibilities. The other is promoting competition which is being handled by loosening the organizational ties around the legal profession. No longer will law firms necessarily be owned by lawyers alone. They can become corporate entities like any other occupational group. Although this has caused gasps of horror among many traditionalists, especially in the US where they are panicking, "modernists" hope this will be the new dawn for the legal profession.

New dawns often bring unwelcome things (remember the Day of the Triffids) as well as good.

Without help I don't think most lawyers will know what to do in this new era. From 2011 "Alternative Business Structures" will be permitted; that will be the opening foray for the corporatization of the legal profession.

Some lawyers have begun to think this through. Some even may see it in terms of "Law's Big Bang" redolent of the financial services Big Bang in the 1980s under Thatcher. The problem with the legal profession is that on the whole it isn't reflective. It has never needed to be since it has been protected for so long.

It may think that by importing a few consultants from business schools or other consulting firms, it will have the difficulties licked. Unfortunately, no. Unless it comes to terms with its own future and plots its own course there, it will lose its way and become captive to others' interests.

This is much a philosophical problem as an organizational one. And this is where the legal profession pulls up short. Time is running out.