LSB releases plan to monitor impact of ABSs on access to justice

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13 September 2012

Probate: what would rise in DIY applications say?

The Legal Services Board (LSB) yesterday laid out how it will monitor the impact of alternative business structures and other reforms on access to justice.

The attempt to “baseline” access to justice and to evaluate change over time proposes 18 measures, such as why and how consumers use legal services, trends in costs and funding, and the number of lawyers and others providing them.

In a discussion paper, Evaluation: How can we measure access to justice for individual consumers?, the LSB said that devising a set of indicators was necessary in order to meet its statutory objective of improving access to justice.

The paper draws heavily on a legal services benchmarking survey commissioned by the LSB and published earlier in the summer. The authors observed that due to a shortage of data on the legal services market and its limited research budget, measurement of the marketplace will have to rely on third-party consumer research. While “this approach minimises regulatory burden”, the paper said, it “does commit funding for a legal needs survey at least once every two to three years”.

The report said ABSs should encourage increased competition. “This should lead to more choice for consumers, which may result in lower prices. Innovation is increased and firms may make savings through cost-effective operations. It also encourages growth in the legal services market. There are risks associated with ABS, including possible conflicts of interest between lawyer and investor and, potentially, fewer smaller firms.”

Remarking how the results of measures might “pose a question of cause and effect”, the LSB used the example of a rise in consumers making probate applications without using solicitors, which could either be driven by a simplified application process or, for instance, a reduction in the number of providers offering the service.

However, if over time there was a fall in the number of providers, followed by price increases, and a rise in consumers doing it themselves saying the cost was too high, “it would be reasonable to conclude that the liberalisation of the market had failed to deliver better access to justice in this incidence”.

This illustrated that “contextual information remains the key aide to understanding movements in these indicators over time”, the paper said.

Admitting that “access to justice is a big concept”, the LSB defined it as “much wider than access to courts, or the provision of services by authorised persons”. As an oversight regulator, the board’s interest is in “the relationship between regulation and access to justice”.

It explained: “We define access to justice as the acting out of the rule of law in particular or individual circumstances. The tools to achieve that outcome range from informing the public about their rights, routine transactional legal services and personalised advice, through to action before tribunals and courts.”

The LSB emphasised that its role is not to get involved in the debate over what resources government is willing to devote to the cause of achieving equality of arms. “Rather our objective is to facilitate a market that improves access to justice.”

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McKenzie Friends – a storm in a teapot

Legal Futures Conference 2011Photo by Jonathan Goldberg

If the recent furore about McKenzie Friend Marketplace shows anything, it is that the profession remains acutely sensitive to the apparent threat of competition by unregulated entrants into the legal landscape. But for an outside observer, the whole McKenzie Friend debate remains curiously overblown: if not a storm in a teacup, a storm at least in a teapot. For all the characteristic sturm und drang of the Law Society’s response to last year’s senior judiciary consultation, there was pretty widespread agreement among most respondents that McKenzie Friends are here to stay.

April 28th, 2017