The Gazette 1980

GAZETTE

JULY-AUGUST

practitioners is that they already have the skills to deal

with a considerable part of the work that the poor would

want to bring to lawyers. This applies especially in the

field of matrimonial matters which in most countries is the

largest single item of work in the civil field. Whether this

would be true in a country such as Ireland with its special

attitude to divorce remains to be seen but there can be

little doubt that many of the legal problems of the poor

are the same as those of the middle classes. Legal

difficulties connected with the ownership of property, by

definition, do not greatly affect those who have none but

when property related issues and matters are excluded

research shows that many legal problems affect the social

and economic classes more or less equally/The special

survey done for the English Royal Commission said for

instance that in matters which did not concern property

'the profile of users of lawyers' services by socio-

economic group is not greatly different from that of the

adult population in general'. (

Report of the Royal

Commission on Legal Services,

Cmnd. 7648, Vol. 2, p.

205, para. 8.115). Insofar as private practitioners already

possess the know-how to handle the legal problems of the

poor, it is obviously sensible to employ that experience

rather than to establish new offices with different lawyers.

This is the more true since experience shows that

salaried service in law centres tends to attract young,

enthusiastic but necessarily inexperienced lawyers

whereas legal aid via private practitioners makes use of

the full range of experience in the profession. In the

United States for instance most legal services to the poor

are provided by the few thousand young neighbourhood

law firm lawyers. In England by contrast legal aid is

provided by many more thousands of solicitors and

barristers, including most of the leaders of the profession.

Even Queen's Counsel derive a considerable proportion

of their earnings from legal aid work.

I therefore think it very unfortunate that the Irish

Government's proposed civil legal aid scheme should be

based entirely on salaried lawyers (full-time or part-time),

and that the recommendation of the Pringle Committee

for a mixed system using law centres and private

practitioners should have been rejected. I am a great

supporter of law centres and regard them as an essential

feature of a developed legal aid system but I do not

believe that they should be used to shoulder the main

burden of civil legal aid. Indeed, I am convinced that if

they are used in this way one risks losing the main virtue

of the law centre concept. First, it fails to make use of the

huge resource of the private profession which is more or

less geographically spread to provide a service to the

public. Secondly, the law centres will as a result be

swamped by the kind of work that traditionally comes

into solicitors' offices and as a result will have little time

to undertake the even more valuable work for the broader

community which law centres in England at least see as

their main raison d'etre.

Government's Unease

I sense in the Irish Government's scheme a distinct

unease about legal services that go beyond the narrowest

confines of the relationship between the lawyer and an

individual client. The applicant would be refused a

certificate for legal aid it is said if he is acting in a

representative capacity or where numerous persons have

an interest or where the application is not made in the sole

interest of the applicant but 'is of a kind commonly

described as a test case' (para. 3.2.4, p. 14). It is true that

the document goes on to say that an applicant will not be

refused by reason only of the fact that the proceedings if

successful would benefit other persons, but that in such a

case the Legal Aid Board would assess the applicant to an

additional

contribution

reflecting the

reasonable

participation of such other person. I am bound to say that

if such restrictive conditions had been laid down to guide

law centres in. the United States, Canada, Australia or

England the law centre movement would not have made

the great impact it has as a new model for the provision of

legal

services.My

fear is that the Irish Government's

scheme will achieve the worst of both worlds. The

elimination of the private practitioner from the system will

deprive the citizen of easy access to local lawyers capable

of handling ordinary civil disputes. On the other hand, the

insistence that the law centres engage only in case-work

for individual clients will emasculate the law centre

movement.

English Royal Commission

Admittedly the Royal Commission on Legal Services

in England did take a distinctly frosty tone about the

broader kind of law centre activity. Law centres it said

should confine their activities to providing legal advice

and assistance and representation in regard to legal

problems. Some law centres went beyond this to work for

the community at large or sections of it. They often

sought 'to attack the roots of problems by organising

groups to bear on landlords, local authorities and central

government either to improve working, housing or living

conditions or to urge changes in priorities of public

expenditure' (Vol. 1, p. 83, para. 8.19). Such work the

Royal Commission said was not appropriate for a

salaried legal service. But this part of the Royal

Commission's Report seems to me to be based on a

fundamental misreading of the nature of law centre work.

Of course a line has to be drawn somewhere as to what

work is properly within the scope of a state salaried

lawyer. But if the line is drawn as narrowly as the Royal

Commission suggest much of the point of having law

centres in lost. The law centres in their evidence to the

Royal Commission said that they were increasinly

convinced that work for groups was more important than

work for individuals and that this was where they saw

their main contribution to lie. Unfortunately they did not

give the Royal Commission enough insight into what

kinds of activities they had in mind. It was only after the

Report was published that they produced in their

response to it a long list of examples of law centre work

that ought, they argued, to be permitted.

One law centre for instance had acted for numbers of

parents concerned about the effects on children of lead in

petrol. This led to discussions with the local authority

which eventually agreed to try to ban the sale of petrol

containing lead throughout the borough. Another law

centre helped to push for better conditions in a large doss

house with over a thousand beds and advised on the

residents' rights to medical care, welfare benefits, and

decent housing. A law centre negotiated with the local

authority better conditions in regard to rapair and

security of tenure for all the tens of thousands of council

tenants in the borough. Another got engineers and

surveyors to report on the conditions of highways and

pavements which had fallen into bad repair causing an

unusual number of accidents and as a result persuaded