Face-to-face legal services: lessons from the digital revolution
A new report, available with this issue of Legal Action, argues that digital communication can help to maintain access to justice in a time of austerity.1Professor Roger Smith and Professor Alan Paterson, Face to face legal services and their alternatives: global lessons from the digital revolution, Centre for Professional Legal Studies, Strathclyde University, February 2014, available at: www.strath.ac.uk/media/faculties/hass/law/cpls/Face_to_Face.pdf. In this article, Roger Smith, co-author of the report, introduces its main findings.
This month, you will notice that you have received a bonus with your Legal Action – a free copy of a report by Professor Alan Paterson and myself on digital developments in legal services and their impact on access to justice. This was the result of a two-year project funded by the Nuffield Foundation. It very much follows a methodology supported by the foundation in a series of publications by LAG in the 1980s and 1990s – a survey of developments in a range of jurisdictions with a distillation of the lessons that can be learnt. So, when you read the report what will you find that we discovered about digital developments?
The inevitability of digital delivery
No domestic reader of this report will need to be reminded that the substitution of face-to-face legal advice by a telephone hotline has a political context. This is how Lord Chancellor Chris Grayling is hoping to make savings in legal advice even in the areas where scope has been preserved. More widely, the use of ‘digital only’ delivery is how the coalition government is hoping to make major savings to social security expenditure. But, as any practitioner knows, there are people for whom access to the internet or even use of a hotline is just not worth very much. To take a phrase from human rights case-law, access to justice needs to be ‘practical and effective’, not ‘theoretical and illusory’.2Airey v Ireland App No 6289/73, 9 October 1979 para 24.
Digital exclusion exists and it has, as we argue, three layers: physical exclusion from the technology; skills exclusion from being able to use it; and cultural exclusion even from using skills that may be obtainable and technology that may be accessible.
For all that, however, technology is changing all our lives and it would be odd if legal services turned out to be an exception. You can see commercial organisations like Co-operative Legal Services, QualitySolicitors or some of the other entrants in the ‘pile it high and sell it cheap’ field looking to what Professor Richard Susskind calls ‘the latent legal market’ – the sort of clients with a little money who might previously have got legal aid subject to a contribution. They are being offered ‘unbundled’ legal services (Co-op offers at least three distinct divorce packages) or fixed-fee, limited representation. They are going to make it very difficult for the small high street practitioner to survive without matching their price and transparency.
Reconceiving legal services
One of the frustrations of the coalition government is that it has focused on cuts without any consideration that these might be so fundamental that they require services to be reconsidered. Civil legal aid and legal advice are now a complete mess: they need to be reconceived. Other jurisdictions give a hint of what might be done. The Netherlands and New South Wales in Australia, as you will see from the report, are developing innovative ways of advancing a ‘digital first’ strategy. The Dutch have a website that is so interesting as a way of helping people through a divorce that I recommend you instantly visit it, fix up Google Translate, and explore what seems to me to be at the absolute cutting edge of assisted self-representation.3Visit: www.rechtwijzer.nl.
New South Wales provides an example of how delivery might be web-led but not web-exclusive. The US Legal Services Corporation has a strategic technology-focused grants fund. This is the kind of thing that we should argue for from any government of any complexion that genuinely believes, along with former Lord Chancellor Ken Clarke, that ‘access to justice’ is a requisite of a civilised state. Just don’t hold your breath.