Universal access to justice is one of the hallmarks of a civilized society, yet, in practice, legal advice is difficult and expensive to obtain. This leaves millions without any practical remedy when they have been wronged, believe they have a claim, or when they are fearful of liability and potential litigation from someone more powerful – and wealthier – than themselves. Reforming the legal professions could give access to law for all, with potentially large economic benefits as well.

Members of the legal professions – solicitors and barristers – have a monopoly on law in the UK: barristers on acting as advocates in the higher courts, and solicitors in drawing up legal documents, providing advice as to a client’s legal position, and in direct representation in lower courts and outside of the legal system. Members of these professions are regulated by the Inns of Court (for barristers) and the Law Society (for solicitors), chambers and firms not admitting those who do not meet these bodies’ qualifications and conditions for entry.

So far, so similar to other regulated professions, such as accountants, teachers and architects: if anybody were allowed to set up shop as a solicitor there would be no guarantee of the quality of the advice proffered, demand for legal services (at present prices) would plummet, and the courts would be swamped with cases that were poorly argued, or just plain wrong. Stringent entry requirements to the professions avoid Akerlof’s famous ‘market for lemons‘.

But if going to a member of these professions is the first port of call when you need legal advice this can make things prohibitively expensive. Even initial consultations can cost large sums: add solicitors’ letters, petitions and other legal instruments and costs mount quickly. Moreover, the mere thought that cost will built almost immediately is offputting to many.

In many cases, though, those seeking access to the legal system do not require the full force of a lawyer’s services: they require clarification as to their legal position, a view on whether they have been a victim, or advice on whether they are liable or vulnerable to litigation or prosecution. Armed with this information – the basics of how the law fits the facts of one’s situation – many legalistic disputes can be resolved without further recourse to the courts. Without it many people on low or middle incomes routinely fail to pursue matters when they have a reasonable case, through fear of legal costs: or are forced to cave in in situations where their legal position may be relatively strong, because they are threatened by another party (an employer, for example) who uses their greater means to bully opponents out of legal fights.

There are thus many areas of the law where, because of the costs associated with litigation and the power differential between parties, minor injustices occur on an almost day-to-day basis. Employers routinely disregard employee protections in redundancy, discrimination and disciplinary proceedings – especially now that fewer workplaces are fully unionised – because they know that they can. Similarly, a number of consumer protections are increasingly honoured in the breach rather than in the observance by some businesses.

The economic consequences of these failings in the current system are non-trivial: if reality does not reflect the world as the law predicts then it is harder for individuals and firms to plan their economic activity effectively, leading to potential inefficiencies. Allowing the unscrupulous to become complacent and cavalier about their obligations can create negative externalities where others bear the cost: all of this can lead to a shortfall in economic activity that is not negligible.

Providing a new lowest tier to the legal professions could mitigate these effects, provide better and cheaper access for millions, and rebalance power in a legal system all too easily dominated by those with the greatest wealth. If you write a letter to a solicitor asking for help, chances are that the initial work – organising the facts, identifying relevant case law, and ascertaining whether there is a prima facie case – will be done by a clerk or other paralegal. Many large businesses and public sector bodies have non-lawyers employed in legal departments to provide precisely this support function, and anyone in the organisation will have to put enquiries through them before speaking to anyone qualified to practice law or appear in court.

Allowing members of the public to engage the services of these paralegals directly could vastly widen legal access. They could provide factual advice about the law on a given topic at a low and regulated price, the purpose of which would be to allow individuals to settle legal disputes without the need for court proceedings. They could provide a reference service for next steps where necessary, making it easier to find a solicitor whose specialism covers the legal area in question and perhaps leading formal mediation processes in some situations. There would, of course, have to be a new regulatory framework into which this new tier of legal professionals would fit: setting down the limits of the advice that they can legally provide, and providing for a minimum level of qualification (an undergraduate degree and a short on-the-job legal course should suffice).

The savings involved could be very large indeed; and although this would take some work currently undertaken by solicitors, there would in all likelihood be enough extra work coming into the legal system from those previously frozen out to make up for this shortfall. Cases that people previously dare not even submit for inspection for fear of the cost would then proceed through to solicitors and barristers to pursue. Plus, for every one case that proceeds which may not have proceeded before, two solicitors are employed, and two barristers, if the case goes to court. Now that wealth increasingly determines opportunity, equal access to law is one of the great levelling forces in society: making it a reality could be a great progressive cause of the future.

This is especially the case in the situation of the slashing of legal aid. The government has set to the legal aid industry with a delight unseen before, yet not moved to put anything in its place to mitigate the effects of its loss – namely, providing assistance to those unable to afford it.

Moreover, restructuring the legal profession in this way could work out cheaper for the government in the long run, as those who can afford these new means take them up rather than resort to community law centres. 

Photo: Steve Calcott