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

Rethinking the selfare state 96
reasons for supposing that this is not always the most efficient form of delivery of legal
aid services, and that in a wide range of contexts duty counsel and community legal
clinics may be more appropriate delivery vehicles. However, the private Bar will likely
be opposed to assigning a substantial role to these alternative delivery mechanisms
because of their self-interest in the judicare/certificate system, although the fact that
many jurisdictions extensively employ these mechanisms, and the fiscal constraints
facing those that do not, suggest that the private Bar’s opposition to a more broadly cast
voucher system that provides consumers with a choice of delivery mechanism is in many
contexts unlikely to be insuperable.
Conclusion
As was noted above, mixed systems show the most promise in meeting the need for basic
legal services in an age of more restricted social spending. Models which rely either
entirely or principally on community clinics present governance challenges and raise
concerns of unfair competition with the private Bar, while the competition and ownership
effects operative in private practice are muted. Moreover, they are likely to meet with
vigorous opposition from professional associations. Furthermore, clinic-intensive models
generally entail a high degree of government involvement in priority setting, creating a
principal-agent problem to the extent that clinics must realign their priorities to meet
those of their funding agency. Clients under clinic-based models cannot choose where to
take their business, and may have little say in the processes of governance. Clinics which
provide inadequate service can be disciplined only indirectly by clients through the
channels of representative government, even though unsatisfactory legal service can have
direct consequences for a particular client.
Conversely, systems which rely entirely on demand-side subsidies may experience the
problems of supplier-induced demand, or monopolistic behaviour in communities where
the choice of practitioners is limited. The model of mandatory legal expenses insurance,
as an alternative to judicare certificates, also needs to be examined in more detail. The
challenge for legal aid governance bodies will be to find which blend of community
clinics and demand-side subsidies functions best in their particular jurisdictions, although
participation in the governance of any legal aid scheme by all stakeholders must be
assured.