The world hasn’t ended, it’s just changed

So that’s it, then. LASPO has received royal assent, and legal aid as we know it has come to an end, writes Richard Miller.

Except, it’s not quite as simple as that. On the Government’s figures, there will still be over £1.5 billion going into legal aid. Crime, public law family, mental health and asylum are untouched by the scope cuts, as are some of the smaller categories. Most housing litigation (as opposed to advice) will still be in scope. For many firms the impact of the Act is limited.

But for firms doing private family and social welfare law work on legal aid, the changes will be revolutionary, and as with any revolution, there will be casualties. How can you avoid being one of them?

Legal aid will still be available for help with mediation, and for the victims of domestic abuse. But how will you get to the point at which you can establish their eligibility for legal aid? Will you send clients to mediators as the first port of call? Will you charge for first interviews? Will you do (potentially long) first interviews for free to establish eligibility? Will you have very junior staff conducting an initial interview with the client to try to establish whether they are likely to be eligible, only bringing in the lawyer for a relatively short part of the interview? Or will you stop doing family legal aid altogether? You need to be thinking now about how you will respond to this challenge.

And what about those who are not eligible? You could carry on only offering a full cradle to grave service. But these clients, like those who are just above legal aid eligibility limits at the moment, cannot afford to buy those services.

So how can you provide something affordable to these clients? One way is to have a menu of services at fixed prices, allowing clients to pick and choose which services they want. You could have separate fixed fees for drafting an application to Court, preparing a witness statement, and representing the client in Court, with various package deals for multiple services. There could also be reductions if the firm has already helped the client with mediation, given that legal aid would then have funded some of the information-gathering.

In the social welfare field, there may be fewer options. Many areas are coming out of scope altogether. Clients who need these services are less likely to be able to afford to pay anything much to get these services privately. But if instead of thinking about the traditional one to one model of service delivery, firms think about a one to many approach, perhaps some help can still be provided to some clients. For example, if you develop a webinar that walks clients through what they need to do to lodge an employment tribunal application, many may be willing to pay to view it. If enough do so, it will more than pay for itself, as well as being a useful marketing tool for your firm.

Alternatively, there might be opportunities to develop a model for how you could make such webinars available to the public free at the point of delivery, and seek charitable or philanthropic grants to develop and maintain the service.  Any topic where you have found yourself giving similar advice to many different clients might lend itself to this approach.

You may want to consider the Law Shop model, under which, a firm makes its library available to the public for free, has self-help books and products on sale, and sells lawyers’ time to clients in small units with no continuing obligations on either side. While legal aid was widely available, this approach was something of a niche enterprise, but it may prove particularly suited to the world we are now moving into.

Justice Gap
The common theme here is that the key to operating in this new world will be to focus on the elements where your expertise is most vital, and to find ways of being paid a reasonable amount for that, while stripping out everything else. Other solicitors, and new entrants to the market via the ABS model, will be doing exactly that. How will you compete?

I won’t pretend that these measures, or the many others that firms are starting to think about, are anything like a complete answer. I don’t think even the Government would dispute that the system we have after implementation of these cuts will be worse than the one we have now.

But there are ways to develop new streams of income while also helping the clients we came into the profession to serve. And the more we do as a profession to plug the justice gap, the stronger will be our arguments to Government that they must restore legal aid for those areas that the alternatives can’t cover.

About Richard Miller

Richard is head of legal aid at the Law Society. He was previously director of the Legal Aid Practitioners Group

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