Alternative 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 opportunities 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: • Money. By not treating money as the primary consideration when dealing with a new client. This is the key basic principle. It contradicts mainstream practices and values, and defies the free market. If a client of an alternative practice has no money (which would almost certainly rule him out from the mainstream) it is crucially important that his case is handled with as much care as a paying client. There are a number of ways in which money fetishism can be dealt with. These include charging according to the means of the client, not submitting a bill if the claim is unsuccessful, accepting payment in instalments, and bartering. Bartering can be a radical alternative to charitable work. Legal services can be exchanged for whatever the client can offer, or has a surplus of. The Bar Code of Conduct does not deal with bartering, but the most relevant provision of the Code states that a self-employed barrister may charge for any work undertaken by him on any basis or by any method he thinks fit, provided that such basis or method is permitted by law. The lawyer in alternative practice can help to deal with one layer of anxiety afflicting clients: by not taking all their money. • Direct access. Dealing directly with the client, within the scope of the public access rules, rather than by using the traditional client-solicitor-barrister relationship to keep the client at arms length, directly contradicts traditionally accepted principles of detachment. • Demystification. The explanation of procedural and legal points clearly and in plain English so that the client understands exactly what is happening at every stage of the case. Alternative practice necessarily implies a commitment to demystification and education. The law should be explained to clients, as far as possible, in understandable terms. This follows the Benthamite tradition and undermines the normal practice of preservation of the mysteries of the craft. This is more fully examined in Chapter 6 (Mystery). • Education. Sources of law and procedure should be made available to the client. Textbooks and articles in journals should be made available for reference or loan. Library facilities and Internet sources should be identified. Handbooks and guides to law and procedure can be published and distributed at a fair price. Education should also include an element of scepticism as to the effectiveness of the legal system in solving people’s problems. The analysis and identification of the non-legal aspects of the problem may be more significant than a legal analysis. The limitations of law should be accepted and explained. • Professional standards. Practising law in an alternative way should involve setting standards higher than those of mainstream practitioners. The running of an alternative practice necessarily involves conflict with the principles and practice of the mainstream, especially with its obsession with money. One way of dealing with this conflict, and of asserting the principles of an alternative practice against the traditionalists, is to do everything better than them. Thus, administration should be as efficient as possible, with support staff highly trained and motivated. Standards of literacy, research, timekeeping and communication should be of the highest. The result of this should be that mainstream practitioners cannot criticise the alternative practice on grounds of poor standards or inefficiency. Disadvantaged clients should receive better service than if they had bankrupted themselves in the mainstream. Academic excellence should be one aspect of an alternative practice. • Professional codes of conduct should be strictly adhered to, although this may cause difficulties where the aims of an alternative practice conflict with those of the traditional profession. But if an alternative practice falls foul of professional rules, for example by refusing to represent fascists, it is in a far stronger position to defend itself against charges of professional misconduct if it has an unblemished record of efficiency and good administration. The general test should be that every document which goes out from an alternative practice should be considered, in theory, as if it were to be examined and analysed by the most reactionary judge. If the documents are beyond criticism from the viewpoint of efficiency, literacy and administration, then problems with the content of documentation can far more easily be dealt with. • Equal opportunities. The Bar Code of Conduct states that a self-employed barrister must have regard to any relevant guidance issued by the Bar Council including guidance as to good equal opportunities practice in chambers in the form of the Equality and Diversity Code for the Bar. The Code and the Guidance deal, generally, with discrimination on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, sexual orientation, marital status, disability, age, religion or belief. An alternative practice can go further than this and deal with the issue of discrimination for social and economic reasons. • Seminars. Practitioners must comply with continuing professional development requirements, involving a set number of hours. These can be fulfilled by holding seminars. There is no reason why clients cannot be invited to seminars where the topic under discussion relates to their own problems. Unfortunately, the authorities now charge for accreditation of seminars, whether or not an entry charge is made, and this makes holding free seminars problematic. Again, the free market dominates. Since compulsory continuing legal education was introduced for all barristers, we have seen a scramble to turn this into a money-making opportunity. All kinds of individuals and institutions offer training courses to comply with the new regulations, at a high price. The progressive lawyer should, in any event, have kept up to date with his speciality, so that he can take on traditional lawyers on equal or better terms. Seminars, which count towards the continuing education requirements, can be offered free of charge and open to the public. In this way, free advice and information can be offered without any element of the patronising charitable ethic. • Recruitment. The difficulties of running an alternative practice show themselves when attempts are made to recruit new members. Many lawyers are so immersed in a professional culture which has the unchallenged characteristic of an obsession with money, arrogance, formality and authoritarianism that they simply cannot cope with a practice which puts these factors at the bottom of its list of priorities. A practice which is determined to function according to broad principles of co-operation, justice and accessibility faces huge problems when it attempts to recruit from the mainstream. • Website. My free employment advice website – www.freeemployment advice.co.uk –operated to provide free or low cost advice for people with employment law problems. It contained information on a number of areas of employment law and offered advice by telephone or email. The initial telephone or email advice, if brief, was free. Further advice was available for a small fee. A standard charge of £100 was made for an initial conference, regardless of its length. The website received, on average, 10 requests a week. Many of the enquiries were clients driven into mental illness by their workplace experiences and by the cost, delays and complexity of the legal system. They had started down the civil procedure road confident that they would obtain justice. As the case proceeded, their optimism changed to bewilderment and disillusion. Their savings disappeared. These were people with a partial grasp of the details of law and procedure, obsessed with the fine detail of their case, doomed to wander the obscure byways of English law and procedure until their money was gone, their spirit broken and their illusions as to English justice shattered. Their initial naïve belief that they would get justice or have their day in court soon disappeared. 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.