This blog could have been sub-headed: “Can and should law students help address society’s unmet legal need?”, but I feared that might not have been as catchy as my chosen heading. Do please read on, as I will get to what law students might be able to do, but not before some rather important scene-setting.
“Is there a lawyer in the house?” No, I have never heard that shouted in anything other than jest either. When someone suddenly collapses, nearby professionals of a medical persuasion tend to be more in demand than legal advisers. Whilst lawyers might not be needed with quite the same instantaneity as other professionals, legal advice is needed at times of distress and upheaval. Although criminal law is not the focus of this note, they will be especially needed when the apparatus of the state turns to proving your involvement in a criminal activity. Assuming (as I already have) that law’s place as a profession is accepted and further assuming that access to justice for all is a good that must be facilitated by the provision of legal advice, assistance and representation to those that cannot otherwise afford it (neither of which are small assumptions to make), there is no giant deductive leap necessary to ascertain that there is a gap that needs to be filled where people who need help cannot afford the rates set by the profession. How should that gap be filled?
Three answers tend to be put forward in the context of seeking help: the state; the legal profession; or the clients themselves. By state funding, legal aid of a post-World War II style might spring to mind. Essentially, this model involves the state allocating funds to pay for the services of private solicitors or for the direct, full-time employment of solicitors. The model has an attractive simplicity, but it has come under strain of late. A timely analysis of matters north and south of the Anglo-Scottish border has recently been undertaken by Professor Alan Paterson of the University of Strathclyde (in the shape of his recently published Hamlyn lectures). Timely or not, time has already marched on for England with the embodiment of the Jackson reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. I have no intention of stoking Anglo-Scottish rivalry, but it seems fair to say Scotland has escaped some of the more stringent English reforms relating to (for example) employment and family provision. Whether this will remain so cannot be predicted, but indications from the Scottish Justice Minister Kenny MacAskill MSP suggest any cosy status quo cannot be relied upon as reforms may be in the pipeline.
What about the legal profession? Essentially, the profession could be asked to help through either or both of the provision of finance to fund others with the time to assist (through some sort of a contribution, over and above the costs of a practising certificate, as has been mooted before) or the provision of free advice if they can spare time. Many solicitors do just that and are to be applauded for doing so, but while straitened times might free up time to assist, those same straitened times mean solicitors need to utilise the earning opportunities that do come their way to earn a living, with or without an extra levy.
The last category, comprising money-strapped clients, might seem a little paradoxical, given that in this supposition these are the very people who are struggling to instruct an adviser. Clients cannot be expected to provide something they do not have, but there are other ways to address a lack of ability to pay fees up-front, or indeed at the end. Conditional and contingent fees or legal expenses insurance might do just that, but then again many people are sceptical of such arrangements.
I mention all of the above for completeness, rather than to praise or critique any of them. A layered approach might optimise the outcome, but even then it is unlikely to produce the optimal outcome. As such, there needs to be a consideration of and engagement with alternative players and ideas. What about law students? Understandably, you may be loath to allow a student doctor to perform a complex surgical procedure on you, but as already demonstrated the medical analogy only goes so far. Law clinics, as they tend to be known, have something of a pedigree in the UK and overseas in offering legal services fronted by students. They offer a chance for students to get hands-on experience of managing a case, giving an educational insight that tends not to be reflected in the more stayed approach to undergraduate education in UK law schools, coupled with a social justice insight that is difficult to teach in any other way.
Students advising at a law clinic have the chance to solve real problems for real people, but what assurances do those real people have? First, “clients” (if that is the correct term) and indeed lawyers seeking to earn a living should note that law clinics will ordinarily never act for someone who can afford a lawyer or who is eligible for legal aid. Poaching “business” from qualified advisers will not help law clinics to win friends, or indeed cases. Getting the best result possible anyone with a legal problem is always the paramount concern. Another point to note is that many (but not all) clinics steer clear of emotive practice areas like family law, which are often more sensitively handled by those more experienced in both legal practice and life in general.
There is an implicit acknowledgement here that students are not always the best, but they might be the best available. It should also be noted that all law clinics have some kind of supervisory system, with practitioners or university staff being on hand to advise the student advisers where necessary. Expertise and insight can also be brought to bear very quickly in areas of concern to young people and students, with housing and consumer law being key practice areas. Beyond that, and with due credit to Churchill, the further assurances students can offer are blood, toil, tears and sweat; that might even be viewed as a challenge to some paid advisers.
If that was a slight on the legal profession, it was but a passing one. As noted above, lawyers should not feel threatened by student law clinics, in fact I would rather hope they might be moved to help the law clinic movement. Granted, there are not many professions that can be relied on to devote time or money to projects that will not serve as a shrewd investment, but the educational benefit to the future members of the legal profession (and the happy social justice by-product for society as a whole) provides an alternative badge as a cause worth supporting.
These points, and more, were discussed at a conference organised at the University of the West of Scotland in Paisley (with the support of the Higher Education Authority) in June, which conference also provided the platform to launch the Scottish University Law Clinic Network. This network, drawing together the law clinics that operate out of the universities of Aberdeen, Dundee, Edinburgh, Strathclyde and University of the West of Scotland , gives the opportunity to publicise our respective activities, share good practices and (it is hoped) inspire others to start up similar projects in other areas.
Aspirational as this may be, I do not think anyone has the impression that this network or law clinics generally somehow arm students with rounds of magic bullets that will address society’s unmet legal need. There is every chance this blog will wind-up certain of its readers. Commoditisers might think law is simply a product and the market should simply be allowed to operate, although many others would take issue with that view. Those in need of advice may think of law clinics as some kind of pacifying sop. Certain law students might do likewise, or may prefer to volunteer at a local charity or Citizens’ Advice Bureau. Even campaigners who have dedicated their lives to social justice might not be uncritical fans of everything law clinics do, or they may feel law clinics should not be required to take up the slack from a neglectful state. Wind-up blogs may have their place, but that was not necessarily my intention. Rather, it was to highlight that there may be a safety valve to help those who feel no-one else can help them. Many people already aware of that safety valve have benefited from a free, local service conducted by enthusiastic agents on their behalf. Although there might not be a lawyer in the house, there are people in the neighbourhood who will do all they can to help.
[UPDATE: I have a book review of Alan Paterson’s “Lawyers and the Public Good: Democracy in Action?” in the 2012 edition of the Edinburgh Law Review, which is accessible (to some with suitable privileges) here or in hard copy at (2012) EdinLR 16 466-468. I might add the book itself is very reasonably priced for a law book and not particularly long either. I would commend it to you.]