Special delivery

Those solicitors who are still working in legal aid do not need reminding that it is going to continue to get more difficult to do so.

In recent years there has been a sense of unreality about overall funding for legal aid. The Legal Services Commission has made cuts but denied that they were doing so and maintained that it was just a restructuring process. When fixed fees were introduced and then reduced, solicitors were assured that if they worked creatively and imaginatively with even small fixed fees they could expect to be paid more under the new

system. This was accompanied by announcements from the LSC about the increasing number of people who were receiving help under the Legal Aid Scheme. The commission indicated that it was hoping to go on providing more advice and assistance to more people in the future. This has now stopped. The Advice Service Alliance produced a report on 'Updated Procurement Plans in Social Welfare Law' in March 2010 which has shown cuts in funding levels of around 11 per cent.

As a result of these cuts it is inevitable that more small legal aid firms and not-for-profit organisations are going to close. The government has made it clear that they consider this to be a good thing as it will enable them to save money by only having to deal with a reduced number of suppliers. Individual solicitors who wish to go on working in legal aid will have to face working for one of a small number of large organisations.

Time to adapt

Ever since fixed fees were introduced, solicitors have been advised to slim down their operations and to cut out any unnecessary overheads. Any firm that is still carrying out legal aid work must by now have slimmed down as much as they will ever be able to. We have now reached a stage where solicitors cannot expect to survive by simply modifying their old ways of working. Instead it seems that there is no choice but to change the whole service delivery model.

According to the traditional service delivery model, a new client is seen by a specialist solicitor when they first instruct the firm. A face-to-face meeting takes place during which the client is able to tell the solicitor about their problem in detail. The solicitor then tells the client about the law relating to that problem and what steps might be taken to resolve it. The solicitor then confirms the instructions and advice in writing. The case then progresses through further meetings, telephone conversations, letters and hearings. The client has a dedicated solicitor who is not just their advocate but also their guide and counsellor throughout the life of the case. This highly personalised specialist service cannot be provided for the rates of pay offered by the LSC. Anyone still tryingto use this model is likely to go out of business in the near future. The government is not prepared to provide the funding necessary to sustain it.

At present there seem to be two alternative models for service delivery: the pyramid model and the virtual model.

The pyramid model

This model relies on unqualified staff running cases supervised by a small number of solicitors towards the top of the pyramid. The other levels consist of paralegals and trainees lower down and managing partners at the very top. The solicitor can supervise a number of paralegals who are trained to complete questionnaires and run whole cases according to workflow production line type step. The client is made aware from the start of the case that the person dealing with their case is not a solicitor but a 'case worker'. The client may never meet or even speak to a solicitor.

The advantage of this model is that the firm can claim payment at the same level of fixed fees for cases run by paralegals as were previously claimed for the work of much more expensive solicitors. If the paralegals are properly trained and supervised, then clients should still be assured a reasonable quality of service.

The main problem with this model is that supervising low-paid paralegals is not as easy as it seems. It can take a long time to train paralegals up to the level where they can run a caseload adequately with minimal supervision. Until they have reached that level, the supervising solicitor will be at risk of spending as much time dealing with the mess made by new paralegals as they would have spent dealing with the cases themselves.

Because they are only paid low wages, paralegals are not likely to stay with the firm for very long. They are likely to be constantly on the look out for better wages and career progression. It may be possible to encourage them to stay by promising them training contracts, but there is still likely to be a high turnover. This means that the training cycle has to start again and cases have to be reallocated. Clients are bound to get frustrated by having to deal with case workers who lack the skills to be able to provide a clear and confident answer to a question about a complex problem.

The virtual model

The second model is based on the firm no longer employing (as many) in-house solicitors but instead working with self-employed consultant solicitors who undertake case work from remote locations (such as their homes) by logging into the firm's computer systems and dealing with clients by telephone or video conference. Instead of paying the solicitor a wage, the firm pays the solicitor a percentage of the profit costs which the solicitor generates. Paralegals might still be used to carry out administrative functions at the firm's office but each case would be dealt with by a solicitor.

The benefits of this system are that the firm does not have to pay large wage bills to solicitors and/or large numbers of paralegals. The firm only has to pay out money to a solicitor after that solicitor has brought the money in which is used to pay them. The firm also makes savings on office space as the solicitors work from home or elsewhere. If the consultant solicitors wish to use support staff such as typists then they can make their own arrangements for this which the firm does not have to pay for.

The disadvantages of this model are that it depends heavily on information technology and can only work with a paperless office which very few legal aid solicitors have managed to develop. Computer systems are now powerful and cheap enough for this model to be within the grasp of all legal aid solicitors whether in the private or not-for-profit sector. The paralegal-based model is also heavily dependent on information technology. Managing teams of paralegals would almost certainly be much more difficult if not impossible without a computerised case management system which supervising solicitors use to monitor their work.

Which one is best for your firm?

For most firms the consultant model is going to be preferable to the pyramid model. The client receives a better service because they deal more closely with a specialist solicitor even though this may not be in person. The firm makes substantial savings in terms of wages and other overheads. The pyramid model is based on the expensive foundations of office space and paid employees which the virtual model minimises.

For those firms that adopt the pyramid model, the key question is just how inexperienced/untrained/unsupervised can a 'case worker' be before the quality of service provided falls below an acceptable level? There is no easy answer. Some paralegals can reach high standards very quickly, others never will. The pressure of economics and day-to-day work will always place pressure on the firm to expect more from paralegals than they are capable of providing or are being paid to provide. Those who adopt the virtual model will have to decide how much time to spend supervising the consultants. The same pressures mean that it will always be tempting to just assume that the consultants are working smoothly and do not need to supervised in the same way as paralegals. Anyone who has managed even highly experienced solicitors will know that this is a dangerous assumption.

The emergence of a third service delivery model

Although the two models which I have described may seem very different, I believe that over time they will merge into a third model that solicitors will have to adopt over the coming years if they are to survive the likely competitive tendering that the successor body to the now abolished LSC will be likely to adopt when awarding the next set of contracts in 2013.

The firms using the paralegal-based model are going to find that they are paying out unacceptable sums for renting office space in the future. The continued improvements in IT will mean that it simply will not make sense for firms to require staff to assemble in the traditional office building. They will also find that they are paying fixed salaries to solicitors which could be avoided if they were only paying the solicitors a percentage of the fees they bring in. These firms will therefore have to move towards a consultant-based model and expect not just solicitors but also paralegals to work from home or anywhere else that the firm is not paying rent for. Similarly, the consultant solicitors working under the second model will find that it makes economic sense to delegate more and more of their work to paralegals. Using new social networking type IT developments, solicitors will be able to supervise their cases very closely and maintain a level of contact with the client.

Out of this merger of the two models, I predict a future in which firms of solicitors and not-for-profit organisations evolve from being office-based factories where staff assemble and process cases to being a central platform though which solicitors and support staff will utilise their resources (such as case management systems, office space and insurance cover) from bases in remote locations to provide specialist technical services. This could be liberating for all concerned. However, even the most innovative solicitors will not be able to continue to carry out legal work without adequate funding. I hope that the government will be able to address this in the future and arrive at a consensus with solicitors for the future provision of quality legal services to persons on low incomes.