Legal aid family lawyers: Sink or swim?

If you’re a legal aid family lawyer, chances are you’ve taken a sudden interest in all things marketing and fixed fees. Because like it or loathe it, market forces and consumer choice now dominate private family law matters following the withdrawal of legal aid in April.

There are two ways to respond. The first is what most lawyers are currently doing. And that’s to try and monetise the same lower income clients for whom legal aid is no longer available for lawyer-led casework.

Just witness the explosion of low-cost fixed fee services and pay-as-you-go legal advice made possible by the unbundling of family law services. Sure enough the number of self-litigants has risen since April, while referrals to family mediation (still covered by legal aid) have correspondingly plummeted compared to a year ago.

And while Lord McNally, the Families Justice Minister, described the collapse in mediation referrals to the BBC as a ‘hiccup’, a more helpful response might be to tell us just how demand for dispute resolution is going to be met before the family courts finally grind to a halt?

The answer is unlikely to flow from the aforementioned fixed fees. Such packages are typically for filling out a divorce petition or drafting a consent order. That’s all very well if no one’s arguing about the finances or the kids but try fixing a fee around contested issues for lawyer-led negotiations or court action. And even if you can conjure up a few fixed fee modules, how will low-income clients afford the cumulative fees – fixed or otherwise?

Which brings us neatly back to asking how legal aid family lawyers are going to pay their way? Putting aside throwing some of the senior partner’s money at Google Adwords or an opportunistic Search Engine Optimisation (SEO) consultant, the answer lies somewhat closer to home.

And it is simply to make family lawyers more affordable to a huge and largely un-served swathe of would-be private clients. I refer here to the tens of thousands of average income families that separate each year. These families were never eligible for legal aid and to this day manifest a longstanding – and unsung – market failure in family law services.

Because while lower-income clients (at least until recently) accessed lawyers via legal aid and the rich were willing to finance court action, average income clients were left to baulk at hourly rates of £200 per hour plus VAT. As a result, many do not seek out lawyers at all.

So there’s your market: the missing middle. And here’s how to attract and commercialise them: get these clients in front of a local mediator. While this might raise an eyebrow among private family lawyers used to earning five figure fees, legal aid family lawyers aren’t in this market so can’t worry about losing fees they’re not earning. They could however be earning between one and three thousand pounds per case by supporting their client at family mediation through the provision of fixed fee legal advice and document drafting on an advice-only partial retainer.

And by our reckoning they could also be earning up to £700 in net fees for supporting a legal aid Applicant choosing to mediate by charging them a private fee for pre-mediation advice before switching to a matter start once mediation is underway.

Above all, something magic happens when a lawyer is combined with a mediator: the total price of dispute resolution falls to within reach of private clients on modest to average means.

In doing so, legal aid family lawyers could help to correct a second long-standing market failure: namely, family mediation is extremely efficient when underway (over two-thirds of mediations end in agreement) yet so few separating families opt to mediate.

Bottom line: attracting private clients is about growing the market for family law services among average income separating families. The likes of the Co-op know it and so do a growing a number of totally private family law firms. We know this because over 40 law firms and mediation services have so far joined our network to offer lawyer-supported mediation.

Commercially-minded family law departments realise that higher-volume lower-margin services serve as a relatively risk free means of attracting more clients while keeping junior fee earners busy with the work.

This is something of a no-brainer for legal aid family departments committed to establishing or growing their private client base. We can even help convert your clients to mediation.

*A version of this blog appeared on the website Legal Voice

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