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

Rethinking the selfare state 80
a large extent on the normative grounds which are used to justify legal services in the first
place, rather than on the instrument or instruments used to deliver them. Moreover, it is
unlikely that one mode of service delivery will be effective across the various domains of
legal practice in a single jurisdiction or state. There may well be advantages to the use of
different modes of provision in different areas of legal service delivery. For instance, a
permanent staff of experienced duty counsel hired by the state may be best able to assist
citizens with summary matters and small claims, while the granting of legal aid
certificates for low-income families to allow them to retain an attorney of their choice in
criminal, immigration or family matters may be preferable in such cases. Thus, while our
analysis of the different possible modes of provision will use the four modalities of
provision described in Chapter 2, it will also take into account that no single mode of
provision is likely to be able to meet the complex and variegated legal needs of an entire
community. Consequently, our intended goal is not to prescribe a comprehensive and
universal solution to the legal aid needs of a state, but rather to evaluate how and in what
circumstances tied demand-side subsidies represent a preferable alternative to other
modes of delivery.
Pure public provision
As Paterson notes, there are few jurisdictions in which the state itself both funds and
delivers essential legal services. A pure staff model (namely, “a system in which the legal
aid administration employs salaried lawyers to provide individual advice and case
representation” 17 ) is more commonly found in jurisdictions in which criminal legal
advice and representation take a higher priority for publicly funded legal aid than civil
matters. Thus, for instance, most jurisdictions in the United States hire a staff of public
defenders in each county to represent respondents in criminal matters who do not have
the means to retain attorneys. Where staff lawyers are hired by the government to provide
assistance in civil matters, they are often barred from providing services which would
place them in competition with the private Bar. 18 As Paterson notes, for instance, “staff
lawyers in the Netherlands are usually restricted to providing initial advice to clients
before referring them to advocates in private practice,” 19 while salaried employees of the
federally funded Legal Services Corporation in the United States are banned from “taking
cases to do with school desegregation, abortion, or engaging in political activities such as
picketing, striking, lobbying, or working for political campaigns.” 20
One significant advantage of the staff lawyer model is “its ability to offer lawyers with
specialized expertise in a given field of legal […] practice.” 21 Moreover, it spares legal
aid beneficiaries the burden of selecting an attorney, a matter about which they may lack
detailed and useful information.
There are five central objections to the salaried staff model:
It represents unfair competition with private providers since staff offices
do not face the same hard budget constraints as private firms, nor the
threat of being wound up. Staff offices in outlying communities can
operate indefinitely at a loss, making it impossible for local attorneys to
compete, and ultimately making such communities wholly dependent on
the state for the provision of certain legal services.