Alternative legal practice
The practice of law in an alternative way attempts to address the fact that the poor are denied justice and to resist the fact that law is used by many lawyers as a means of making large sums of money – in some cases, obscenely large.
Alternative practice challenges the absurdly unbalanced relationship between the most highly-paid lawyers and poor people who cannot afford their services.
It resists the deliberate obscurity of legal rules, interpreted and explained by the legal priesthood, which mean that even the most articulate and highly educated non-lawyer finds it practically impossible to penetrate the curtain of incomprehensibility.
The following are suggested ideas for the development of a legal practice outside the mainstream. In this context it is important to note that all aspects of legal practice in England have changed significantly during the last decade, and are likely to develop further. Most of these changes have followed a neoliberal agenda and reflect movement towards the free market, for example the permitting of mixed legal businesses and direct access to barristers.
The following proposals have nothing to do with the often-quoted and accepted supremacy of the market. Rather, they defy market forces and aim to develop legal practice, not in the interests of an elite profession, but in the interests of deprived groups, for example the poor, the homeless, the unemployed, the disabled and victims of discrimination.
Campbell’s view (The Left and Rights) is that the radical lawyer is both tolerated and ignored. Tolerated because his existence seems somehow “good” for the profession at large – making it representative of all opinion – and ignored because what he does in the affluent liberal hour threatens no-one. The radical lawyer is entangled in a situation where he is committed to undermining the very structure which provides his own power base.
The theoretical basis of alternative practice involves the following principles:
Resistance to war, racism, discrimination and exploitation
Opposition to money fetishism
A commitment to demystification
The pursuit of social justice
Opposition to traditional formalities and conventions which hinder access to justice
Many English lawyers with a social conscience are so involved with making money or with the daily pressures of court work that alternatives to the current system are never considered. The great majority of lawyers, being essentially conservative, practise according to traditional conventions.The time demands of practice can offer few opportunties for lawyers to stand back and think about alternatives to mainstream practice. There is an almost unbridgeable gap between critical academic lawyers on the one hand, and coal-face practitioners on the other (although it is unrealistic to compare the daily work of the lawyer with that of the miner). The dynamics of daily practice can result in lawyers submerging their ideals to economic considerations and pragmatic results.
Traditional practice as a barrister confirms, and indeed encourages, remoteness from the client. Barristers have traditionally kept clients at arms length through the rule that a solicitor must act as an intermediary. This principle has been eroded by the introduction of public access rights, but it is important to be aware that this relaxation was forced upon the profession in the teeth of determined opposition. The profession has always emphasised objectivity, detachment and the application of legal skills as a technical exercise.
An American commentator has stated the view that many of the left-wing lawyers who preached revolution thirty years ago are now well-paid members of the legal establishment. Some use their power and status to help poor people: others do not. The experiences and day-to-day practice of American radical lawyers is very different from their English counterparts: the Americanisation of the English legal system has not extended to the adoption of radical US techniques.
Everyone knows that poor people find it difficult to have effective access to justice. This is accepted as if it were as inevitable as English weather. The mainstream discussion of alternatives to this state of affairs generally involves a tinkering with financial elements of the system, for example franchising or marginally increased money for Law Centres. As these arcane discussions continue, poor people continue to suffer. Are there serious alternatives to traditional practice? This question is seldom raised.
For largely tactical reasons, alternative practice must come within the scope of the detailed practice rules laid down by the Bar Code of Conduct, and in full compliance with the overriding duty of a barrister to promote and protect fearlessly and by all proper and lawful means the client’s best interests and do so without regard to his own interests or to any consequences to himself or any other person.
Practice as a lawyer can be “alternative” in the following ways:
Professional codes of conduct
Typically, the enquirers were unemployed, poor and desperate. Many of them had been dismissed or made redundant. They might complain of discrimination, bullying and harassment. They might have been made ill by workplace conditions. One thing which almost all of them had in common was that they could not afford advice and/or representation through the mainstream legal profession. Most were not members of a trade union, nor did they have legal expenses insurance. Many had approached the Citizens’ Advice Bureau for help and some had contacted Law Centres, only to be told that they were fully occupied and could not take on any more cases.
The majority of enquirers had some idea of their employment rights but most became lost in a fog of incomprehension and despair as they discovered how complex and opaque the law is, and how difficult it is to deal with procedural points.In almost every case, the root of the problem was money.
Working with these clients for free or for a small fee is difficult. The facts are often complex and may involve detailed allegations of bullying or harassment over long periods of time. Medical evidence is normally crucial and expensive to obtain.
An alternative practice may also prepare templates for unrepresented litigants to use in courts and tribunals, particularly where they cannot afford representation. The following is an example of this:
Specimen opening statement for an unrepresented client
The European Convention on Human Rights was intended to guarantee not theoretical or illusory but practical and effective rights. Having regard to the complexity of the procedure and points of law involved, to the evidential questions arising and to the emotional involvement entailed by marital disputes, the possibility open to Mrs Airey of conducting her case herself did not provide her with an effective right of access.
The fact that the alleged right of access stemmed solely from Mrs Airey’s personal circumstances was not decisive. Hindrance in fact could constitute a violation of the Convention just like a legal impediment and certain Convention obligations, such as that to secure an effective right of access to the courts, could on occasion necessitate positive State action.
It was most improbable that a person in Mrs Airey’s position could effectively present his or her own case.
Draw the attention of court or tribunal to the decision of the European Court of Human Rights in the case of Steel and Morris v United Kingdom (2005) The Times, February 16, where that court ruled that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms.
Point out to the court or tribunal the decision in Bertuzzi v France (2003)In June 1995 B obtained full legal aid to start proceedings against a lawyer. The lawyers assigned to the case applied to withdraw because they had personal links with the defendant. Later in 1995 B asked the president of the legal aid office and the president of the bar council to assign another lawyer. B received no reply until March 1997 when he was told that the grant of legal aid had lapsed.
The European Court of Human Rights ruled that there had been a breach of Article 6 of the European Convention on Human Rights – B had not had effective access to a court. The court made the following points:
The relevant authorities should have arranged for a replacement who would provide B with proper assistance.
Permitting B to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions which would secure him the effective enjoyment of equality of arms which was inherent in the concept of a fair trial.
The Convention is intended to guarantee not rights which are theoretical or illusory but which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.
State that one appreciates that the court or tribunal may regard this submission as not relevant to current proceedings: advise the court or tribunal that the issues raised in the submission may also be raised in future appeal proceedings and/or in an application to the European Court of Human Rights.
The reality of alternative practice
In the summer of 2007 I received an email from a young Slovakian woman telling me, in acceptable English, that she had recently returned home after working in England for a month. She had been working night shifts as an office cleaner and had not been paid by her temporary employer. Her sister was working in England and would contact me to see if I could help.
This was a case where the client was abroad, had no money, and there was no documentation. For the mainstream, it was a non-starter.
For an alternative practice, the case was difficult but not impossible. Starting with the theoretical view that this could be described as a case of modern day slavery, and as such must be fought with the utmost t determination, the first step was to identify the migrant worker’s employer. This was achieved after lengthy inquiries at the Job Centre which had found work for the young woman. Details of the company involved were found via the Internet.
A grievance letter sent to the employing company on behalf of the girl did not succeed in recovering the wages due. With the help of the woman’s sister we lodged a claim for unlawful deduction from wages in the employment tribunal. Shortly after this, the money was paid into the client’s sister’s English bank account. No fee was charged.
Unusually, justice was done and was seen to be done – mainstream issues of hourly billing and cost analysis were wholly irrelevant.
I was invited to visit Slovakia where the woman’s family treated me as an honoured guest.
It seemed to me, and to others with whom I discussed the case (lawyers and non-lawyers) that we were indeed looking at a form of modern-day slavery. This was a young woman, highly intelligent and well-educated, who had come to England to earn money because wages were low and jobs were few in her own country. She also wanted to improve her English. She had worked hard in a menial job, for long hours, and had not been paid. There was a suspicion that she had been treated in this way because she was a migrant worker with a poor grasp of English.
Applying the traditional and dominant model of the English legal system, she had no chance whatever of recovering her unpaid wages. She would be denied justice because she was poor.
Through collective action, with the help of the Haldane Society, we were able to achieve some sort of justice. Money for us did not enter into the calculation. Justice was done without a financial incentive.