As most know, the England/Wales legal aid system is going through a major set of cuts, with the government “consultation” proposing a variety of major policy changes to reduce the overall cost of the system.  Richard Moorhead, a highly reflective observer, has posted his comments, and all are worth a look.  Here, however, I want to highlight his focus on client choice — a value that has rarely been articulated in our system, in which the lack of entitlement means that the only choice a litigant has is to keep looking for a provider until he or she finds one that will take them.  Richard comments:

The proposed model suggests client choice must be removed to make the proposals work.  There are a number of problems with such proposals.  Let me emphasise the ones on which I, as a researcher, have a particular perspective:

The Scottish Public Defender pilot attempted to direct clients by birth date.  This failed for a variety of reasons, including the practical importance and operation of the exceptions.  Any system must have exceptions and there is a risk to the stated aim of the proposals that such exceptions will simply build in too much instability for direction to work as a tool for managing contract sizes.

A secondary impact of direction was significant reductions in client satisfaction with the service.  Having been forced to go to a ‘state’ provider, the legitimacy of the service declined significantly.  This may have a range of knock on effects, not least a reduction in the willingness of clients to accept advice on plea, venue, conduct during interviews and the like. This impacts on quality and cost to the court and police budgets.

Client choice also provides important long stop protection of quality.  It is true that clients are not sophisticated consumers of advice.  Nevertheless they can assess service quality and the extent to which the lawyer remembers relevant facts about their case.  Client views are also related to the impact of outcomes on their judgments about lawyers.  Thus client satisfaction, and client choice, are proxies for quality which it is important to maintain within the system if at all possible.

As we move into a triage based system, we will have an opportunity to add more of client choice, even without an entitlement system.  Between application and service there will be an assessment of need, and following a finding of need for a particular service level, there is the possibility of providing choice between providers who offer service at that level of need.

It would surely, at a minimum, be worth testing such a client driven system, and its impact upon the aspects that Richard discusses above.

How might such a system be build?  How might it be tested?