1. The legal Profession & Other Sources of Advice and Funding
Funding and Other Sources
of Legal Advice

2. Lesson Objectives
I will be able to describe different methods an individual can use to fund legal services
I will be able to describe the financial limits on each method of State funding
I will be able to describe the sources of legal advice apart from a solicitor or barrister

3. Law is open to everyone but legal services can be expensive
Litigation, the threat of and the process of taking legal action against another person or organisation in a dispute can be expensive
A person is primarily responsible for paying his lawyer’s costs resulting from the litigation
Losing party will usually pay the costs of the winning party and their expenses
However, the winner may still have fees to pay as well
Difficult to estimate the fees in advance as there are many variables
Simple cases can drag on for a considerable amount of time – Hall v Simons (2000) Cockbone v Atkinson, Dacre and Slack

4. Private Funding Paying bill with own resources – own money
Insurance company pay the bill – legal expenses insurance
Conditional fee agreement – personal injury claims

5. Own Resources
You would use your own money when instructing a solicitor to make a will or undertake the conveyancing when buying or selling a house
More complex legal work would probably be too expensive for personal funds
Businesses have more need to pay directly for legal work – more sense to seek advice sooner rather than later
Solicitor’s work is charged at an hourly rate plus expenses such as court fees
Rate will depend on location of solicitors – London will be more expensive – also expertise of lawyer will push price up
The Guide to Summary Assessment Costs used by the courts:
Up to £380 an hour – solicitors with over 8 years post-qualification experience, including at least 8 years litigation experience, working in Central London
From £95 an hour – trainee solicitor, paralegals and fee earners of equivalent experience – Teesside and Devon
Some work such as conveyancing or making a will may be done for a fixed cost.
In Hall v Simons (200) – the solicitors bill that was unpaid was for about £10,500 and related to a building dispute where the sums involved totalled a little over £20,000.

6. Insurance This is a form of risk-sharing using a legal expense insurer
There are two types of policy: ‘before the event policy’ and ‘after the event policy’
Before – a policy which can be taken out usually with an annual premium, to provide future cover for possible legal problems
Some policies are limited in what they cover and may include restrictions on choice of solicitor, hourly rates and other expenses

7. Conditional Fees This is effectively risk-sharing with lawyers
This is part of the change to the funding arrangements set up by the Courts and Legal Services Act 1990, to combat the huge cost of public legal funding
Before this, solicitors were not allowed to offer clients any risk-sharing arrangement
Around 2.5 million people in the UK suffer accidental injuries every year
Public legal funding through Legal Aid for these costs was withdrawn in 2000, leaving these people with the option of paying for legal action themselves or risk sharing in some way

8. Conditional Fee Agreement
This is often known, inaccurately, as a ‘no win, no fee’ arrangement
This is where the solicitor makes no charge if the case is lost
However, the disbursements (costs incurred by the solicitor on behalf of the client such as court fees, or fees for medical reports) and the opponent’s legal charges will still have to be paid
If the case succeeds, the solicitor charges a ‘success fee’ on top of the normal hourly rate
The loser may be ordered to pay at least part of these charges, including the success fee
Insurance is normally taken out at the client’s expense to cover this risk with an ‘after the event’ policy

9. Contingency Fee Arrangement
A person is not charged if he or she loses, but the fee, if he or she is successful, is a percentage of what is recovered
However, this arrangement cannot be used for cases which require court proceedings
There are also other possible arrangements such as a discount conditional fee where an hourly rate is agreed as being payable if the case is won, but reduced if the outcome is unsuccessful
Such an agreement could also provide for a success fee

10. State Funding Community Legal Service
People often need legal advice: relationships, asylum, immigration, community care
Sometimes it is enough to provide information leaflets or to direct people to other services, such as debt counselling or mediation
The first part is the information available in the leaflets and on the website –
They provide funds direct to solicitors and to other organisations such as the Citizens Advice Bureau
These organisations provide funds and promote civil legal services
This is provided in a number of categories from general information to advice and representation – these categories are collectively known as legal aid

11. The most usual starting point is Legal Help
Allows people with low income and little savings to get free legal advice or help from a solicitor or experienced legal adviser
Lawyer must have a contract with the Legal Services Commission
Designed to cover everything up to and including the preparation of a case to go to court
Can also cover costs of mediation in non-family cases
If money is won, then it must first be used to pay the solicitor – statutory charge

12. Help at Court then provides funding for a solicitor or adviser to represent a person in court
This might be used in representing someone who is being sued for a debt or who is defending eviction proceedings
There are financial criteria to meet and it must be cost-effective
Family cases have always taken up a large part of public legal funding – 3 types of funding available all of which have financial criteria:
General Family Help
Family Mediation
Help with Mediation

13. General Family Help covers preparation of a case to go to court and general advice on any legal problems related to a family matter
It also covers the costs of starting legal action and legal representation to get a court order and sort out arrangements following the order
This help can cover negotiations in family disputes if there is no mediation happening
Legal aid for mediation in a family dispute is called Family Mediation and is used to help pay for the costs of the mediator

14. The final part of legal aid for family matters is Help with Mediation – this would be used to help pay for drawing up the agreement reached between the parties or following up the arrangement that has been made
For other cases that a person might need to bring to court, there is Legal Representation – this is again subject to financial criteria, and the case must be one that the Legal Services Commission considers it reasonable to fund – it is also subject to the statutory charge
Funding can also be stopped if the solicitor feels that the case is not strong enough
Types of cases that can be funded include consumer cases such as claiming against the seller of faulty goods, or an appeal to the Employment Appeal Tribunal
Legal Representation will not usually pay for the costs of taking a personal injury case to court, as this is covered by conditional fee agreements

15. There is also Controlled Legal Representation, which is only representation before a Mental Health Review Tribunal or an Asylum and Immigration Tribunal
In many cases there are no qualifying criteria, financial or other
The only other legal aid relates to criminal cases and is dealt with by the Criminal Defence Service

16. Criminal Defence Service
Legal aid in criminal cases is organised by the Criminal Defence Service
3 different types of help: free legal advice at the police station, advice and assistance before charge, help with representation at court
At the police station is the right to free independent legal advice from a duty solicitor – this has no financial or other criteria attached
However, this advice is not necessarily face-to-face and could well be over the telephone
A person can choose his own solicitor and the advice will be free if they have a contract with the Criminal Defence Service
On arrest, a person is given an information sheet explaining how to get legal help
Even where a person has not been charged with an offence, he may need advice and assistance – this is however subject to financial criteria

17. Help with representation in court comes in three forms:
The first is a Representation Order – this applies in the Magistrates’ Court and is subject to complex financial criteria, except for those under 16 or claiming most benefits, as well as a merits test; it must be in the interests of justice for the accused to be represented
The interests of justice test is a requirement of Art. 6 of the ECHR, which states that everyone charged with a criminal offence has the right, ‘if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’.

18. The criteria used for the test are:
Whether it is likely that the court will impose either a custodial sentence or one which will lead to a loss of livelihood
Whether the case involves substantial questions of law or evidence of a complex or difficult nature
Whether the accused is unable to understand the proceedings or state their own case because of, for example, age, inadequate knowledge of English, or illness
Whether it is in the interests of someone other than the accused that the accused be legally represented
Whether the defence to be put forward is frivolous
Whether the accused has been remanded in custody pending the trial
The recently introduced means test has not been well received by many, as it is seen to be in conflict with the right to a fair trial.
there are no financial conditions to getting a Representation Order in the Crown Court. However, the interests of justice test must be passed. This is unlikely for very minor offences.

19. The second type of legal aid is Advocacy Assistance - This covers the costs of a solicitor preparing a case and initial representation in certain cases such as anti-social behaviour orders or non-payment of council tax
There are no financial criteria to be met
Finally there is free advice and representation at the Magistrates’ Court from the duty solicitor, although not for very minor cases
However, one can only use the services of the Duty Solicitor at one hearing – usually the first – and not at a contested trial, so a Representation Order would then be needed

20. Other Sources of Legal Advice

21. Citizens Advice Bureau
Provides legal advice as part of its service
A charity, but gains a substantial amount of income from its contracts with the Legal Services Commission to provide legal advice to people with debt, welfare benefits, housing, employment and immigration issues
Advice is free and where further action is required, appropriate agencies or solicitors are contacted
May bureaux work with local solicitors firms, giving access to over 1,000 specialist solicitors pro bono (free)

22. Law Centres Existed since early 1970s Usually in less affluent areas
There are just over 60 law centres in the UK not including Scotland
Designed to help people access the legal system
May take up a case where legal aid is not available and are often open outside normal office hours
Specialise in social welfare law
Welfare rights, immigration and asylum, housing and employment rights
Funded from a variety of sources
Hold contracts with Legal Services Commission to provide casework services and receive grant aid from local councils
Employ solicitors, barristers, legal advisers and community workers
Many lawyers volunteer to help in their nearest law centre as part of pro bono work

23. Other Sources
Legal advice can sometimes be obtained from solicitors offering a fixed fee or free interview at a special session after hours, or on a Saturday morning
Advice is usually available from a person’s trade union, not just on employment law matters
There is also legal expenses insurance either through a specialist policy, home insurance, car insurance or a motoring organisation
There is often free advice in the media; it often appears in newspapers printing articles on consumer affairs

24. Public funding system – Legal Services Commission
Community Legal Service
Criminal Defence Service
Public Defender Scheme
Solicitors’ firms
Solicitors’ firms
NfPs
Not for profit organisations (NfPs)

25. Providers of legal services
INFORMATION PROVIDERS: Libraries or community centres: leaflets, ref. material, access to CLS directory &/or website
Community Legal Service website
SPECIALIST HELP PROVIDERS Trade unions; RAC & AA; Shelter (450 NfPs) on their specialism
GENERAL HELP PROVIDERS advising on action, giving basic assistance, e.g. many CABx
Providers of legal
services
SPECIALIST HELP PROVIDERS CABx and Law Centres may also be given contracts to provide government-funded legal advice, especially to counteract advice deserts
SPECIALIST HELP PROVIDERS About 3,600 solicitors’ firms have contracts with Legal Services Commission (But this is less than 30% number of firms under previous scheme)

26. Problems with funding of civil cases
1.Advice deserts
Especially in rural areas
Not enough providers have contracts with LSC
Rates of pay too low
2.Eligibility levels
Only those with the very lowest levels of income qualify for help
Problems with funding of civil cases
4.Non-availability
Funding is not available for all civil claims
Conditional fees instead
3.Lack of funds
The budget is capped, so some cases will not be funded simply because there is no money left

27. Are Conditional Fees Working?
Yes!
Have been used in over 50,000 cases for personal injury claims
i.e. increased access to justice for many
The government is considering how to make the system simpler so that challenges are less likely
If a claims firm is used this also increases access to justice – for those who would not go to a lawyer
No!
Poorest clients cannot afford insurance or disbursements
Those with weaker/riskier cases find it difficult to get a solicitor
Difficult to estimate the cost of some personal injury cases which means that solicitors lose out eventually
Large number of challenges re enforcing the agreement
Challenges to front loading of costs on the basis of being out of proportion to the stage the case has reached
Two of the largest claims firms have gone out of business, suggesting that there is not sufficient profit in CFAs to keep a business going

28. Free/Cheap Advice Agencies CABx Began in 1938
About 1000 in the country
Free advice
450 NfPs – RAC, AA, Trade Unions, Shelter, etc - within their specialism
Law centres
First one in 1970
Free advice to those in their catchment area
Free/Cheap
Advice
Agencies
Criminal Defence Service
Duty Solicitors
Advice and assistance for 1 hr
Representation – but merits test
Cheap/free initial interviews offered by solicitors
ALAS (Law Society):
Accident Legal Advice Service
Free initial interview
Also Law Society’s Accident Line
- Freephone service to put accident victims in touch with solicitors
Free Representation Unit
Since 1992
Run by the Bar
Barristers will represent clients in court at no cost
2000+ cases / yr

29. duty solicitor schemes advice and assistance
Not for:
Non-imprisonable offence
Detention on a warrant
Detention in breach of bail
Drink/driving offences
Telephone advice now preferred rather than seen as a defect!
Not for:
Non-imprisonable offence whilst on bail
Trials in magistrates’ courts without representation order
One hour’s work only
duty solicitor schemes
advice and assistance
Means test:
Only those on low incomes will qualify
But duty solicitor at magistrates’ court can still see all in custody – no charge
At police station or other premises
Criminal Defence Service
representation
Covers cost of solicitor to prepare defence before going to court
Representation at court, including issues such as bail
Barrister if required
Financial eligibility – free for:
Those receiving income support, job-seeker’s allowance, state pension credit
U 16s, full-time students U18
Means test for others
Merits test –
Interests of Justice test
(see next slide)