Had to reblog this, it’s excellent.
Everything changes. Mountains erode, coastlines crumble and even Bruce Forsyth eventually retires. But if you think the pace of change is a little too quick there is still one place that remains constant – head on over to the comments section of the Law Gazette. You can be sure, whatever is going on elsewhere, there you will find lawyers unhappy about something, and normally it’s something said by the Legal Services Consumer Panel.
Predictably, the Panel’s latest report calling for a ‘culture change’ in attitudes towards McKenzie friends went down like a lead balloon with lawyers. McKenzie friends, it said, are a ‘legitimate feature of the modern legal market’ and increase access to justice. Much of the legal profession, it seems, does not agree.
Once upon a time McKenzie Friends were just selfless volunteers who, out of the goodness of their hearts, gave up their own time to help litigants in person who can’t, or don’t want to, use a lawyer, by providing moral support, taking notes, offering advice and helping prepare for court. Now, shockingly, they are increasingly starting to charge.
Lawyer outrage is understandable. They spend quite a lot of time and money qualifying and it must be pretty galling to have studied for years and struggled to get a training contract only to see a lot of unqualified so-and-sos come along and undercut you. And because they aren’t regulated they could be doing heaven knows what.
Except in most cases they aren’t. What they are doing is providing valuable support for people who quite conceivably would otherwise have no access to justice. With legal aid withdrawn from all but the most acute cases, the number of litigants in person, those attending court without a lawyer, is increasingly dramatically.
On the face of it, I’m a fairly knowledgeable, confident and determined person, but I wouldn’t want to represent myself. If someone who’d been through the process before offered me a helping hand for a reasonably modest fee, I’d probably take it. And let’s be honest, the fact s/he isn’t a lawyer is probably a bonus.
It is perfectly reasonable to expect that justice can still be served without legal representation. Indeed it is vital this is the case, particularly when the government seems to be determined to remove lawyers as much as possible from the process of law. This may seem a bit bonkers, but it’s what we’ve got to work with.
Obviously there are risks in unqualified, unregulated and uninsured people supporting litigants in person, but arguably these are outweighed by the alternative, which is people deciding not to go to court at all, or turning up without the slightest clue of what they are doing.
Amazingly, most consumers, even those unable to afford a lawyer, are not stupid and are quite capable of understanding the limits of support that can be offered by a McKenzie friend. And of course, advice is not confined to the unregulated – lawyers are quite capable of not living up to their own professional standards. What consumers need is not a closed shop, but clear, reliable and easily accessible information about their options.
McKenzie friends themselves have acted on the Panel’s recommendation and plan to set up their own trade association to represent those non-lawyer advisers who charge fees. I would suggest they get on with it, because the vast array of McKenzie friend websites already out there risk confusing consumers. I would also like to suggest they stop using hourly rates and come up with some sort of fixed-fee system, otherwise they are in danger of creating the same cost uncertainty that has annoyed consumers of legal services for years.
I do wish lawyers would stop being so afraid of change and innovation. Granted, a lot of the change in the legal market at the moment is not of a particularly positive variety, but getting hot under the collar about something that might mitigate at least some of its worst effects is counterproductive. And it will happen anyway.
“The only way to make sense out of change is to plunge into it, move with it, and join the dance” Alan Watts
At the risk of offending anyone, I have to say I have never thought of conveyancing as the sexiest area of law. Of course it’s necessary and I have no doubt every conveyancer has at least one really exciting transaction story they can tell at parties, but it doesn’t often get to make the headlines, certainly not like its bolshy and sometimes unruly cousin personal injury.
That said, it is the area of law most of us are most likely to have contact with at some time or other, which makes it disappointing that this week the Legal Ombudsman (LeO) has been giving out rather mixed messages to consumers. Yes I know the Ombudsman is not a ‘consumer champion’, and nor should it be, but it also shouldn’t be putting out confusing information or, worse, scaremongering.
Based on really no evidence at all, at least nothing more powerful than anecdote, the LeO has warned that “alternative business structures (ABS) will create ‘conveyancing factories’ that exert a downward pressure on prices and could lead to an upsurge in complaints because of a focus on volume over service”. I can hear dinosaurs everywhere rejoicing.
As the excellent Richard Moorhead has pointed out on his blog (so I won’t do it again here) there is nothing in the LeO’s report to suggest that ‘conveyancing factories’ necessarily lead to a drop in quality. In fact, I would go as far to suggest that in some circumstances a factory (read, I assume, ‘automated volume system’) could quite possibly lead to an increase in quality by eliminating human error and ensuring a quick turnaround (runs for cover).
But I don’t just want to play devil’s advocate. The problem with the tenor of the LeO’s report is that it strongly implies ‘alternative’ providers of legal services are going to have a detrimental effect on consumers and that fixed fees could lead to more complaints, neither of which is demonstrated by the LeO’s data (Richard Moorhead again).
Now I don’t have the benefit of the LeO’s first-hand experience and wealth of data (even data that isn’t used properly), but I find extremely hard to believe that there could be more consumer complaints and more problems with legal services in general, and conveyancing in particular, than there were before the reforms ushered in by the Legal Services Act.
The LeO’s own figures illustrate how, after years and years of rising relentlessly, the level of complaints about lawyers has fallen since it was set up. There could be many reasons for this, including the unlikely one that the LeO is less visible than its notorious forebears. All the same, it seems odd to start sounding the alarm bells, particularly in relation to fixed fees where the likely reason for increased complaints about them is simply that there are more of them on offer.
Still, at least we have the data, which is an improvement on the darkest of dark days when the Law Society handled its own complaints (can you imagine such a thing?). And knowledge is power, or at least it should be, although I am not convinced the consumer is getting the true benefit of knowing a lot more than we used to about legal complaints.
The LeO asserts it may be years before complaints information, comparison websites, word of mouth and quality schemes will build up into ‘anything particularly meaningful or representative’. Which is small comfort for consumers put on their guard against risky conveyancing factories by the self-same organisation.
The following warning about online or call-centre conveyancers is taken from the LeO’s Using a conveyancing lawyer: Ten helpful tips “you may be taking a risk if anything unusual, or unexpected, crops up during the transaction. The individual responsible for your case may not have the same qualifications or experience as the lawyer on your local high street, which could mean that the advice you get may not be as informed as you’d like it to be”.
There is so much wrong and unhelpful with this statement I don’t know where to start. Who knew it was the consumer’s job to work out whether the professional they are using has the requisite qualifications? I rather thought that was the point of regulation. Silly me. And how am I supposed to know whether or not my conveyancing transaction is likely to be “straightforward without any particular issue”?
It’s taken me all afternoon, but in my capacity as ‘consumer champion’ I have managed to come up with some scenarios in which your conveyancing may not be the ‘straightforward’ kind the LeO refers to. But don’t quote me on any of this. I am not a lawyer.
- If you are selling and getting divorced at the same time. And good luck with that.
- If your property is not registered with the Land Registry, which means checking back over at least 15 years of documentation to certify ownership. Disputes over title are not uncommon, so if it’s not your dream home I wouldn’t bother going there.
- If your property is leasehold, which is where one building or block has multiple owners. If there are fewer than 60 years on the lease, you may also need a huge deposit (like 100%).
- If your property isn’t a house. Assuming flats are covered by the above, not sure what this means, bungalow? Boat? Barn?
- If you are only selling part of your property, like a bit of your garden to a developer (it is presumably larger than mine)
- If you’re selling at auction, homes-under-the-hammer style
- If your property isn’t freehold.
- All of the above (God help you)
It’s worth pointing out that you would be well advised not to attempt to DIY any of the above transactions either, particularly if, like me, you get bored reading through the self assessment form. With apologies to all the splendid licensed and solicitor conveyancers out there, it may not be the sexiest job but someone’s got to do it.
It’s always good to discover you are right, particularly when you have largely been relying on common sense to prove a point. So to all those lawyers who said I didn’t know what I was talking about and that people weren’t interested in getting legal services online or at a supermarket I’d like to say ‘I told you so’.
This time I can give you facts, real facts about real consumers. Nearly seven out of ten people like the idea of finding legal services on the internet and a similar number of young adults fancy being able to get them from supermarket providers. Even more unsurprising was the finding that more than eight out of ten consumers are more likely to take legal advice if they are given an up-front fixed cost.
This not-quite-earth-shattering news comes from a survey commissioned by Compare Legal Costs, a legal price comparison website. Equally satisfying from my perspective was that fewer than four in ten people agreed that ‘solicitors are upstanding members of society’ and just over four in ten said solicitors were ‘arrogant’.
Having said that it can’t really be good that so many people still have a problem with lawyers. On the plus side, I am quite sure that the changes in the legal market will see their reputation improve among consumers as they have to get serious about offering real value for money and high-quality customer service as well as expert legal advice.
There is, however, a potential downside to all this consumer choice, although not the one many lawyers highlight. The danger is not so much that opening up the market will lead to sub-standard legal advice (although in some cases it might) but that consumers will be paralysed by choice.
Choice is, of course, a good thing. As proponents of choice will tell you, it promotes competition, improves quality and drives down cost. In the legal market it also means people are for the first time being offered a choice about how and when they access services as well as how much they pay for them. On the other hand is what American psychologist Barry Schwartz has called ‘the paradox of choice’.
His argument is that while ‘autonomy and freedom of choice are critical to our well being, and choice is critical to freedom and autonomy’, having more choice than any other group of people have ever had before has not apparently made us any happier. In fact, quite possibly the reverse. Although some choice is undoubtedly better than none, more is not always better than less.
This is true across the whole range of choices we have to make every day, from the trivial (what to have for dinner, what flavour of jam to buy) to the fundamental (which school to send our child to, which mortgage to choose). And there is evidence it is making us miserable, particularly those of us who are ‘maximisers’, ie. people who are less likely to settle for second best.
As you can imagine, this has a significant impact on what consumers really want. You can argue about the specifics, for example whether price or service efficiency is more important, but what consumers really want is simplicity. Yes, they want a service that meets their needs, but beyond that they want the choice to be simple and they don’t want to have to spend hours making it.
And so we come to the ‘purchase funnel’. If you aren’t a marketing guru, and I include myself in that, the purchase funnel was invented in 1898 and suggests consumers go from ‘awareness to interest to desire to action, gradually reducing the number of options or brands they consider along the way’.
The funnel model has been used across many industries for decades, but consumers are now bombarded with so much information they are changing their shopping habits to deal with all the noise. Contemporary wisdom has it that brand loyalty is vanishing and the response of many companies has been to step up marketing messages in order to engage with and keep their consumers.
Marketing managers must have been dismayed to learn that consumers are overwhelmed by all this information. A survey of 7,000 consumers worldwide showed that a third of people continuously shop around, adding and dropping brands and constantly looking for alternatives; and a third abandon any sort of considered search and zero in on a single brand, not so much out of loyalty but as a response to an increasingly complicated choice process.
What may look like consumers exercising choice may in fact be them making no choice at all and apparent brand loyalty may be nothing of the sort, rather a ‘self-imposed simplification of the decision-making process’. What consumers are now doing is not making a funnel purchase, but a ‘tunnel purchase’ and often blinded by the tunnel vision that implies.
The researchers who ‘discovered’ the tunnel also found the single biggest thing companies can do to combat this problem is make the decision simple, by which they mean making it easy to get trustworthy information and find their way around any different purchase options.
What does this mean for providers of legal services, particularly when in many cases consumers are not only dealing with a multitude of choices, they are doing it for a product or service they probably know even less about than they do credit cards, food or mobile phones?
For a start, I am quite sure it doesn’t mean sticking to the one-size-fits-all approach that law firms offered in the past and some would quite like to keep offering. Equally it is worth noting, as the energy companies have found, that regulators (or in this case, the government) will not be afraid to intervene if the options become so overcomplicated consumers find themselves with the wrong tariff, product or service. Competition isn’t everything.
It does involve law firms, and their competitors, offering legal services people really want in a way they really want them. It also requires the front-line regulators to provide clear, impartial information and guidance to support consumers in making choices and the Legal Services Board to evaluate the collective effect of individual choices and ensure there is no negative impact on access to justice.
Whether you welcome or fear it, consumer choice is here to stay. How you respond is up to you.
I am joining the Justice Gap team in the London Legal Walk on 21 May.
We are walking with the Lord Chief Justice and thousands of lawyers to raise funds for the London Legal Support Trust which funds law centres and pro bono agencies in and around London.
These agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and disabled and fighting exploitation and discrimination.
We also know how short they are of the funds to continue that work.
Please donate as generously as you can.
Right, so now I have a real live blog all of my own.
As soon as I have thought of something to write about, you will be the first to know.