Rethinking the Welfare State: The prospects for ... - e-Library

Legal aid 93
First, clear standards for qualifying as a specialized individual legal aid provider in a
particular class of legal matter should be developed. These standards might include a
graduated system of accreditation whereby points are earned by members of the Bar for
various indicia of expertise. A minimum degree of experience in a field would be
necessary to undertake cases of deemed complexity. Indicia could include the specific
types and numbers of courses taken in law school, engagement in ongoing education in
relevant areas, and extent of past practice experience in the field. Second, a mechanism
for detecting quality problems on an ongoing basis should be developed so that the
provision of poor-quality services cannot become entrenched in the system. This can be
done by using better mandatory reporting and technology systems than currently exist
that can serve to raise flags when signs of deficiencies arise. The system could be set up
to detect, inter alia, abnormal billing practices, patterns in case outcomes that indicate
potentially negligent or deficient provision of services, and blatant supplier-induced
demand. Third, when problems or abuses are detected, there must be a well-functioning
mechanism to ameliorate the deficiencies in conduct. This mechanism could include
mandatory remedial education, increasingly serious sanctions for repeat offenders, and
greater coordination between the legal aid administrators and the disciplinary authorities
of the legal profession. Finally, there must also be ongoing experimentation with the
development of detailed performance standards as they are appropriate to particular
practice areas so that quality can be monitored effectively.
The recent reforms to the legal aid system in the Netherlands provide some insight
into how quality monitoring may work in practice. In order to increase the quality of legal
services provided to recipients of legal aid, reforms in 1994 introduced both quality
requirements and an increase in lawyers’ remuneration. 86 In theory, the quality
requirements were to include a maximum number of certificates in a specific area of law
that a lawyer is allowed to handle; a maximum number of areas of law in which a lawyer
is allowed to handle certificates; and a commitment to continued investment in education
and professional training. 87 However, the Legal Aid Boards have largely failed to
implement these standards. Klijn speculates that the reason for this failure is that, “the
Boards disliked the consequences to be expected from enforcing these rules.” 88 The
expected consequence was that in most areas of practice, about 50–70 percent of lawyers
would not meet the standards. 89 Although an independent agency should be responsible
for accrediting lawyers and monitoring quality, care must be taken to ensure that the
proposed regulations are not overly stringent. If virtually unattainable quality standards
are imposed, the risk is that either there will not be enough qualified lawyers to meet the
demand for legal aid or that the agencies responsible for monitoring quality will turn a
blind eye to infractions.
Value of voucher
A lump-sum voucher per class of case (absent reputational effects that can increase or
decrease relative demand for an individual supplier) creates incentives for providers to
chisel on-costs by resolving matters as quickly as possible (e.g. pleading clients guilty or
settling civil matters quickly when they should be contested). An hourly prescribed tariff,
on the other hand, creates opposing incentives—to over-service clients by prolonging
matters unnecessarily (as in fee-for-service health care models). A prescribed hourly