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G6.2. "Unbundled legal assistance"
| 159. | Another initiative aims at making such resources as may be available to litigants in person (whether private resources or legal aid funds (Note 116) ) go further. It is referred to as the "unbundling" of legal assistance, with private lawyers providing (and charging for) advice and assistance at key points in the proceedings, designed to help the litigant represent himself. Lord Woolf explains this concept as follows :- |
| "Not all litigants need assistance with every aspect of their case. Some may be able to undertake much of the preparatory and paper work themselves and need access to competent advice only at key points in the progress of their case. Initially this could be as to the validity of their claim or defence and the way in which they should seek to prove it. This should then be followed up at key stages, particularly in assessing whether an offer from the other side should be accepted. In Arizona and in California a new approach has been developed to provide advice and assistance on this basis. Known as 'unbundling' it was outlined at the Legal Action Group Annual Conference 1994 by Forrest Mosten, one of the pioneers of the approach. He said: | ||
| 'The essence of unbundling is consumer choice. The consumer is empowered to make a choice of lawyers and a choice about the scope and depth of their use of those they select. It is up to the legal profession to educate the client that this is an option'. | |||
| 'Unbundling' involves the 'bundle' of work that has to be done on the case being taken apart and shared between the adviser and the litigant." (Note 117) | ||
| 160. | One well-known example of such a scheme that has been implemented for some time in England and Wales is the "Green Form Scheme". Funded by legal aid, it enables an individual who is of limited means to consult a solicitor for two hours (i) to get initial general advice about his legal situation and the options available, (ii) to get help to try and settle the dispute, (iii) to seek a barrister's opinion, and/or (iii) to write letters. (Note 118) |
| 161. | In fact, as a recent study (Note 119) conducted by the Legislative Council Office of the Hon Margaret Ng ("the Margaret Ng Legco Office Study") points out, a consultative paper proposing a similar scheme in Hong Kong was published in 1993. The idea was for members of the public to be charged $100 for one hour of legal advice, returning for repeat sessions as needed. The response of interested bodies was negative and the scheme dropped. However, as this may have been due to the likely difficulty of attracting any lawyers to do the work for $100 an hour, the suggestion has been made to look again into the scheme with a public subsidy of some $700 or $800 added to the $100 for each hour to make the scheme more feasible. |
| 162. | Another idea is for the establishment of a "duty advice scheme". It was, for example, a recommendation of the LRCWA that :- |
| "A duty counsel scheme, providing free legal advice and limited representation to self-represented litigants, should be established for civil matters modelled on Legal Aid's existing criminal duty counsel scheme." (Note 120) | ||
| 163. | For such schemes to succeed, the litigant must have a certain level of education and ability giving him some prospect of properly representing himself. The dispute must also not be too complex. As the ALRC points out :- |
| "The problems faced by unrepresented litigants and applicants vary, depending on their individual capabilities, the complexity of the proceedings, whether they are applicants or respondents and the extent of assistance available by advisers or court staff." (Note 121) | ||
| 164. | The Free Legal Advice Service operated by the Duty Lawyer Scheme is mentioned below. |
Notes
| 116 | As occurs in Ontario: see ALRC No 89, §5.161. <back> |
| 117 | WIR p 129, §§39-40. <back> |
| 118 | See LCD's website. <back> |
| 119 | "Paths to Justice - A preliminary Study on the channels of free legal advice available in Hong Kong," by the Legislative Council Office of the Hon Margaret Ng, July 2001, p 6. <back> |
| 120 | WAR - Final Report, Recommendation 205. <back> |
| 121 | ALRC No 89, §5.150. The ALRC also points out that litigants may find it more challenging to establish a defence than to present a series of facts on which a claim is based, citing American studies to such effect: see fn 379. <back> |
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