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Perspectives on Expanding Access to Justice

Perspectives on Expanding Access to Justice (Program)

Michael Webster, University of Warwick (UK); Jamie Baxter, Schulich School of Law (Canada) (Moderator); Nick Johnson, Nottingham Law School (UK); Olaf Halvorsen Rønning, University of Oslo (Norway)

Perspectives on Expanding Access to Justice

Michael Webster: Facilitating Access to Justice: Beyond Lawyers - A View from the UK 

Access to justice is under threat in the United States with reductions in the Legal Services Corporation’s Legal Aid Budget. The effect has been to create a deficiency in legal services provision. This exists between individuals who can no longer afford to use lawyers, and are often forced to represent themselves, and individuals who can afford to use lawyers, but who do not recognize their problem as having a legal solution.

This has prompted the American Bar Association (‘ABA’) to consider other modes of access, and in particular, growing experience of federally-authorized legal services providers (‘LSPs’). In recent years, LSPs have been authorized in several States to operate within courthouses. LSPs can include licensed legal technicians and bankruptcy petition preparers for example. However, there has been a reluctance to go quite as far as England & Wales in authorizing non-lawyer owned legal services providers (also known as Alternative Business Structures). In contrast, these have been promoted by the English Legal Services Act 2007.

In October 2015, the ABA’s Commission on the Future of Legal Services launched a consultation paper on new categories of LSPs. This seeks to address whether access to legal services might be improved if the pool of providers was expanded to include individuals without a JD and full law license; and the extent to which those who are not licensed to practice law should be permitted to have an ownership interest in law firms. This paper attempts to address these questions from a US/UK comparative perspective.

Jamie Baxter: The Urban Economy of Access to Justice

While much has been written about the economics of access to justice by focusing on the costs of legal services provision and regulation, little attention has been devoted to exploring the influence of geography and the location decisions of lawyers and other legal service providers. This paper draws on insights from the field of urban agglomeration economics to explain how and why the geography of legal practice and access to justice has changed and is continuing to evolve, and it argues that greater attention to these spatial dimensions may help to confront some of the most pressing barriers to access confronted by users and policymakers alike.

Nick Johnson: Clinic as a Regulated Entity – To What Extent Does the UK ABS Model Provide a Basis for the Transformation of Law School Clinics?

The Legal Service Act 2007 created the opportunity for non-lawyer bodies in England and Wales to offer legal services in England and Wales and to own and manage legal practices. The Act also envisaged legal services being provided alongside other services to members of the public and set up a regulatory regime the aim of which was to promote greater access to justice and legal services.

Since the Act came into force, a wide variety of bodies have set up legal practices outside of the scope of the traditional practice model with varying degrees of success. The reaction of the profession has often been hostile. However, this paper will argue that, in line with a long-standing tradition of Universities developing spin-offs, the ABS regime provides University law schools with unique opportunities:

  1. to develop the teaching of practice regulation and ethics within a fully regulated environment;

  2. to explore other methods of delivering legal services and resolving deficiencies in the availability of legal services;

  3. to provide a fertile environment to research, and to some extent, experiment with the delivery of legal services and with practical ethical issues surrounding the delivery of legal services.

Olaf Halvorsen Rønning: Standards And Regulation of Quality Of Legal Services - A European Human Rights Perspective

I propose a paper on standards and regulation of the quality of legal assistance from a human rights perspective. The paper will be based on part of my current PhD research project on human rights obligations to secure access to legal assistance, under the European Convention of Human Rights (ECHR). I will present an analysis of the case law of the European Court of Human Rights (ECtHR) on government obligations to ensure legal assistance of sufficient quality. Although the performance of a lawyer as a main rule does not incur state responsibility under the ECHR, the states have responsibility to ensure effective access to justice and fair trial, which might require legal assistance. If such legal assistance is sub-standard, state responsibility might arise in special circumstances, cf. e.g. the Artico-case. My paper will first examine which normative standards the ECtHR use when assessing lawyer performance, which mainly are national and international codes of conduct and national laws and regulations, but also – more interestingly—other normative conceptions of lawyers performance. I will then elaborate on the most interesting areas where such standards are breached, in particular problems relating to the lawyers' professional judgment. Last, I will examine the case law on how states should (and can) act to regulate such substandard work, a balancing act between the states’ obligations and the independence of the legal profession.

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