From my latest Solicitors Journal column “Family Business”, 10/04/2013.
Although many solicitors are prepared to do what they can to defend access to justice for the most vulnerable members of society, it will never be enough without legal aid, argues Marilyn Stowe
It is a rare solicitor who doesn’t get asked, at some point in his or her career, what it is like to represent someone whom you believe to be guilty, or to whom you have taken a passionate dislike. For family lawyers, the curiosity focuses on the bad eggs. What is it like to represent a bully? A bounder? A so-called gold-digger? When I am asked a question like this, my stock answer is straightforward. Although my day-to-day work brings challenges, it is never my function as a lawyer to make moral judgements. Rather, I help clients to arrange acceptable settlements. If I have a bad feeling about someone, I can simply refuse to represent them.
In truth, the biggest challenge for a solicitor is not representing somebody who is a bad egg, but somebody who is just the opposite: vulnerable, downtrodden and desperately in need of the security, reassurance and long-term financial stability that proper legal advice can provide. These are the clients whose cases are never far from your thoughts, and whose plights cause sleepless nights. It is one reason why I have always admired our country’s legal aid lawyers, so many of whom have defied the lure of more lucrative caseloads to ensure that everybody has access to justice, whatever their means or circumstances.
When most family law legal aid was abolished on 1 April, the timing couldn’t have been worse. April Fools’ Day – was this somebody’s idea of a bad joke? At the same time media headlines remind us that, with ministers making cuts like a troupe of mad axemen, the poorest members of society are the biggest losers.
Access to justice has been removed for all but a few of them – so who is having sleepless nights about their plight of the vulnerable now? The politicians? I doubt it. The journalists? Sadly, no: the Law Society has run a sustained campaign to raise awareness about the inevitable toll of the family law legal aid cuts, but many newspapers have preferred to stoke alarm about the – admittedly sizeable – legal aid bill.
Instead it is some lawyers who, together with a handful of campaigners, are doing their best to ensure that despite this miserable situation, all is not lost for those in need. The latest initiative is the Bar Council’s guide for litigants-in-person, which translates legal jargon into everyday language and provides advice on everything from what to wear to court, to what to expect while there.
But is this anywhere near enough? How can it be? It barely scratches the surface. For example the Bar Council’s advice is to avoid “speaking like lawyers speak on television”. How can its authors hope to impart adequately the expertise bestowed by years of legal practice, in just 72 pages? “Lots of lawyers come to court with a whole suitcase full of materials,” it states. “You may need to do the same.”
I expect that we shall also see a rise in alternative and unorthodox funding arrangements, such as ‘Sears Tooth’ agreements – designed by the law firm of the same name, under which a client assigns the proceeds of a settlement to their solicitor and out of which the solicitor will pay themselves, as well as charges against property. The latter can allow a client’s case to proceed even in the most penurious of circumstances. As I know from experience, however, they expose firms to no small amount of financial risk. Even a successful outcome cannot ensure that fees will be paid in full.
Meanwhile the government has contributed a basic web resource for those without legal representation, and is expected to push even more couples towards relatively cheap mediation, even though mediation is only suitable in certain cases.
As reluctant as I am to admit it, my concern is that that even our best efforts can be little more than sticking plasters. I hope I am wrong, but I fear that worse is yet to come.
This article was first published by Solicitors Journal, and is reproduced by kind permission