Improving Legal Profession in Private Practice - Essay Example

LEGAL SERVICES BILL AND ACCESS TO THE COURTS: Improving Legal Profession in Private Practice and Democratizing the Field “…it is critically also an issue about access for those who are disadvantaged and in particular, those who cannot afford to pursue their legal rights.” Report of the Review of the Regulatory Framework for Legal Services in England and Wales, Sir David Clementi The question this paper seeks to answer is to what extent does the legal profession in private practice provide the general public with an adequate and effective service and what could be the impact of the Legal Services Bill of 2006. In particular, it will focus on its impact on cause-lawyering or non-profit lawyering. The Legal Services Bill aims to improve the state of country’s legal profession in private practice. By “legal profession in private practice” it is meant the provision of legal services to private clients outside the realm of a government structure. It covers the broad spectrum of cases filed by and against private individuals and/or private corporations ranging from issues dealing with claims, family, probate, and the like. According to Smith (1990): The greater part of the Bill implements the Government’s decision on two major policy initiatives on which it carried out some form of earlier consultation. Part I is the culmination of the civil justice review process; Part II follows the publication of the Green and White Papers in, respectively, January and July 1989. If such private practice is unregulated and left to the vagaries of the market, it leaves it susceptible to abuse. Unlike other commodities and services where the harmful effects of deregulation are minimal, and in some cases deregulation is actually better, the legal profession has to contend with the fact that ultimately, its aim is the dispensation of justice. It seeks to correct redresses committed against individuals and seek accountability from the wrongdoers. It plays an integral and important part in our justice system, and the justice system in turn plays an important part in the maintenance of social order and the promotion of human rights. Hence, the legal profession can in no wise be treated as simply a commodity or a service to be provided to those who can pay, without regulation or State intervention. In July 2003, Sir David Clementi was tasked to carry out a review of the regulatory framework of the legal services in England and Wales. The terms of reference were: To consider what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector. To recommend a framework which will be independent in representing the public and consumer interest, comprehensive, accountable, consistent, flexible, transparent, and no more restrictive or burdensome than is clearly justified. Among his recommendations were the setting up of a Legal Services Board that has oversight powers to regulate front-line bodies like the Law Society and the Bar Council, the creation of an Office for Legal Complaints that will be tasked to handle all forms of complaints lodged by the public against members of the front-line bodies, and opening up the system to alternative structures that will allow lawyers and non-lawyers to work together and provide legal internvention. The summary of all this is that the underlying reason behind the initiatives of Parliament is to introduce a Legal Services Bill that aims, in essence, to provide an oversight of the legal profession so that the greater public could best be served with legal services that are effective and accessible. To quote from the Written Ministerial Statement of Lord Falconer of Thoroton: The draft Bill sets out our detailed plans for the creation of a strong independent oversight regulator the Legal Services Board which will ensure that front line regulators discharge their duties effectively. In addition, legislation will provide the LSB with a wide range of powers including those to authorise and de-authorise front line regulators and to quickly bring unregulated legal services under its remit through secondary legislation to best protect consumers interests. Our proposals also provide for the creation of an independent Office for Legal Complaints, which for the first time will remove the handling of legal complaints from the legal professions. The OLC will help to foster greater consumer confidence and result in quick and fair redress. More than that, the Bill also seeks to make the legal profession adapt to existing realities and to make it relevant to the needs of the time. Given the changes in business structures and given the new challenges presented both in the national and the international arena, and the changing complexion of the legal landscape and its players and stakeholders, there is a great imperative to reinvigorate the profession by discarding antiquated notions of the law and how it should be practiced. To quote once more from Lord Falconer: The draft Legal Services Bill also sets out arrangements to facilitate alternative business structures, which would enable different kinds of lawyers, and lawyers and non-lawyers, to work together on an equal footing. These structures will allow legal services to be delivered in new ways, promoting greater competition and innovation and enabling providers to better respond to the demands of consumers. A range of safeguards will be put in place to protect consumers and demand high standards. The Department for Constitutional Affairs has summarized the essential changes that the bill would introduce as follows: “Make provision for the establishment of the Legal Services Board and in respect of its functions; to make provision for, and in connection with, the regulation of persons who carry on certain legal activities; to make provision for the establishment of the Office for Legal Complaints and for a scheme to consider and determine legal complaints; to make provision about claims management services and about immigration advice and immigration services; to make provision in respect of legal representation provided free of charge; to make provision about the application of the Legal Profession and Legal Aid (Scotland) Act 2006; to make provision about the Scottish legal services ombudsman; and for connected purposes.” Taking into account the broad changes to be introduced by the Bill, and given the far-ranging impact of it in virtually every aspect of the legal profession, this paper will focus on the impact of the Bill on advocacy and cause-lawyering, and in particular, how the Bill has the potential to introduce felt changes in providing legal services to the underprivileged and the marginalized. Given the increase of social sectors and the resultant widening of the competition of divergent interests, the legal system has to reposition itself to meet the needs of an emerging clientele. The many gaps in the law that have failed to take into account these newly-emergent and marginalized interests demand that the legal system view itself as a mechanism to address iniquity and to take on a more responsive – and responsible – social function. To quote from Hershkoff and McCutcheon (2000): Law affects society in many complicated ways: social and economic practices likewise affect legal possibilities. In the global transition toward human rights and rule-of-law values, litigation can be instrumental in achieving shared goals. Despite broad variations across countries in terms of legal, cultural, political, social and economic conditions, one can nevertheless point to several key variables that seem to shape litigation and are in turn altered as litigation goes forward. These variables include the system of government and scope of existing laws, the independence of the judiciary and the operation of the court system, and public attitudes towards law. Such vision of the law – as a mechanism through which shared goals and higher aspirations are achieved – can only be achieved when the law is as accommodating as possible to the many shades and grays of dispute, and the issues of social justice that usually fall by the wayside because of the avalanche of shareholder cases, corporate litigation, and the like that flood the courts. Such cases that involve social justice also aid in reshaping policy and as importantly, triggers self-interrogation. as stated by Andrew Altman in the article Legal Realism, Critical Studies and Dworkin, the operative claim in Critical Legal Studies analysis is that the law is infused with irresolvably opposed principles and ideals, and this legal indeterminacy, as it is called, compels the judge to make a choice that is not dictated by law. Under the glare of CLS scrutiny, once-sacrosanct legal precepts are being dismantled, stare decisis as a doctrine is being reexamined, and the infallibility of the courts as repository of truth and justice is being questioned. The law is no longer a fabric of clearly-defined spectrums, but is rather a patchwork quilt of various shades of gray. It does away with the all-too-convenient givens of a legal system – that there is but one set of “correct” rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable. It aspires to expose the ideological content of the law obscured by layers upon layers of social conditioning by demonstrating how the large areas of legal indeterminacy provide fertile ground for the cooptation of the legal system to reinforce existing power arrangements. Having said that, it is imperative that the legal system democratize itself in order to make it more accessible to those individuals whose social and economic conditions prove to be an indictment of the society they are in. Indeed, access to courts has been an age-old dilemma. Says Hirte (1991): Equal access to the courts is a worldwide problem. Indigent, disabled or foreign persons everywhere have difficulties in obtaining adequate legal advice and representation… Since access to the courts has always been expensive, the question always has to be asked: who has to bear the costs of providing equal access to legal institutions? The answer to the question will vary between different jurisdictions according to the importance they attach to the social welfare of their society as a whole on the one hand and to the freedom of the individual on the other, to the extent that the latter may be restricted by the tax burden. There cannot be a single correct answer to the question. Cost, however, is not the only problem. There are a whole gamut of problems that need to be addressed. And this was discussed in the Report of the Review of the Regulatory Framework for Legal Services in England and Wales which “(seeks) to explore the possible objectives of a regulatory regime for legal services and to consider some of the principles which lie behind the provision of those services by lawyers.” According to the paper, it is essential for the legal system to be consistent with the rule of law that enshrines the principles of equal protection, fairness and human rights. This is particularly in light of the current political climate in the United Kingdom, as well as in the European Union, that values human rights. This is evident in the Human Rights Act of 1998 and the European Convention on Human Rights. The bill seeks to address a plethora of problems that clients have to deal with they contract legal services. At the present time, the front-line agencies deal with their members according to their own rules. For example, the Law Society is responsible for handling consumer complaints against solicitors. The complaints are split into three categories: first of all, inadequate professional service, which includes unacceptable delays or failure to carry out the instructions of the client. Second is professional misconduct, which includes violating the Attorney-Client privilege and divulging a client’s secrets when the law does not permit him to do so. Third and last is negligence, which includes inadequate service and misconduct that does not amount to professional misconduct. On the other hand, the Bar Council is in charge of handling cases filed against Barristers for the same three general areas of inadequate professional service, professional misconduct and negligence. They may impose disciplinary sanctions against erring Barristers. The problem with this kind of set-up is that it very rarely gets the job down. Analysts have noted that the reason why cases filed against Barristers and Solicitors are few and far between is because a Barrister would be hard put to impose disciplinary sanctions against a fellow Barrister. According to the Legal Action Group as quoted in Chapter C of the Report on Legal Services: “We believe that consumer confidence in lawyers ability to deal with complaints against their fellow professionals has been irreversibly undermined" Even the Legal Services Ombudsman himself noted: "It is clear from the contact that the Ombudsmans Office has had with many thousands of customers of legal services, that very many continue to feel disenfranchised by the legal process itself and disadvantaged in any attempt that they might make to pursue a complaint about a lawyer. In an age in which it is often claimed that consumers are more confident and better informed than ever, I suspect that (despite anecdotes to the contrary) this is much less the case in the area of legal services than in other service sectors. I therefore urge the development of new systems and structures that are characterised by a commitment to transparency, accessibility and inclusivity." From the above-quoted sentence, it is all too apparent that the present mechanism of filing complaints against lawyers does not help to empower the ordinary citizens, and on the contrary, disempowers them and intimidates them. What this results in is the creation of a culture of impunity where lawyers and their behavior do not get subjected to scrutiny. They have free rein in their activities. This has a huge effect on cause lawyering because it prejudices the interests of marginalized groups and the advocacy lawyers who represent them. The huge resources of lawyers who represent conglomerates and multi-national firms often lead them to commit unethical and unscrupulous acts to win the case for the clients, and this is their unfair advantage over lawyers who represent those who have no resources. In many cases, corporate lawyers resort to buying off witnesses, extorting, using lavish gifts to influence policy and make decisions turn in their favor. While the mechanisms are present to seek redress against opposing counsels, who resort to these techniques, with an arbitration system that is exclusive rather than inclusive, marginalized groups will find themselves as voiceless, or even more voiceless, as they were when they began. This prejudices not merely the sectors themselves, but also the lawyers that represent them. Sarat and Scheingold describe these lawyers as follows: While they may be forced by necessity to defend established rights, their real goal is to contribute to the kind of transformative politics that will redistribute political power and material benefits in a more egalitarian fashion. Their primary loyalty is not to clients, to constitutional rights, nor to legal process but to a vision of the good society and to political allies who share that vision. The new setup envisioned in the Bill is a one-stop shop of sorts, where private individuals may file cases against lawyers. According to Part 6: “This part provides for a scheme under which complaints which – (a) relate to an act or omission of a person (“the respondent”) in carrying on an activity and (b) are within the jurisdiction of the scheme, may be resolved quickly and with minimum formality by an independent person. Two components are of interest here: first, is the notion of “with minimum formality” which appears to address the problem of stodgy legalese language that is psychologically alienating and a process that is so tortuous and labyrinthine it excludes all but lawyers. Second is the notion of “independence” which appears to propose a solution to the problem of partisanship. Both are attempts to whittle down the “Old Boys Club” flavor that so dominates the legal system and the provision of legal services. Furthermore, the Bills envisages the creation of “Alternative Business Structures” that will allow lawyers and non-lawyers to work together for legal intervention. While what this contemplates is a corporate/company structure, it may also be used to benefit the paralegal system, wherein NGO’s make extensive use of paralegals to impart knowledge and legal information to marginalized individuals to better apprise them of their rights. This mechanism is yet another way of opening up the legal system and introducing reforms that will serve the public at large. In the end, what we aspire towards is a legal regime that serves the highest interests of justice and lives out democracy in its truest form: democracy that upholds the rights of those who have less in life and should therefore have more in law. References Altman, A. (1986) Legal Realism, Critical Legal Studies and Dworkin. Philosophy and Public Affairs, vol. 15, no. 2. 217-244. Clementi, Sir David. Report of the Review of the Regulatory Framework for Legal Services in England and Wales. December 2004. Available at www.legal-services-review.org Last accessed April 1, 2008. Hershkoff, H. & McCutcheon, A. Public Interest Litigation: An International Perspective. USA: Ford Foundation. 2000. Hirte, H. “Access to the Courts for Indigent Persons: A Comparative Analysis of the Legal Framework in the United Kingdom, United States and Germany.” The International and Comparative Law Quarterly, Vol. 40, No. 1 (Jan., 1991), pp. 91-123. Lord Falconer of Thoroton. The Regulation of Legal Services in England and Wales. Written Ministerial Statement by the Secretary of State for Constitutional Affairs and Lord Chancellor. 24 May 2006. Available at http://www.dca.gov.uk/pubs/statements/2006/st060524.htm Last accessed April 1, 2008. Sarat, A & Scheingold, Stuart. Cause Lawyering: Political Commitments and Professional Responsibilities. Oxford: Oxford University Press. 1998. Smith, R. The Courts and Legal Services Bill: A View at Half-Time. Journal of Law and Society, Vol. 17, No. 2 (Summer, 1990), pp. 242-253. Read More