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

Legal aid 83
abide by a series of rules. 31 This effort to both meet the needs of its poorest citizens and
at the same time “depoliticize” the delivery of legal services gave rise to the Bureaus
voor Rechtshulp, the network of government offices now responsible for issuing both
“law shop” grants and legal aid certificates. 32
The advantages of community legal clinics are significant. First, they may benefit
from economies of scale and specialization. Because a large number of legal aid cases are
very similar to one another (e.g. landlord-tenant disputes), it is more efficient to make use
of lawyers that can specialize in a particular type of case or proceeding. Economies of
scale and specialization may also permit more efficient utilization of paralegal personnel.
Second, under the community clinic model, the lawyers employed in clinics may be more
sensitive to the particular needs of a certain class of client—for instance, clinics oriented
toward the African-American or Aboriginal populations. For example, in South Africa,
“the vast majority of legal practitioners are white (85%), in a population in which the
majority are black. Most lawyers work in urban areas, making access particularly difficult
for rural people, who are the most impoverished and marginalized segment of the
population.” 33 In order to address this problem, the South African government has
established ‘Justice Centres’, which are community legal clinics. It is anticipated that
these centres will increase access to the legal system because, “they will employ
candidate attorneys and paralegals from disadvantaged backgrounds and link up with
community-based advice offices functioning as satellites.” 34 However, it may not always
be the case that community legal centres are better suited to the needs of disadvantaged
individuals. For example, Houseman points out that, “many legal services programs and
staff are isolated from the communities they are supposed to assist.” 35 Therefore, in order
to realize the potential social benefits of community clinics, care must be taken to ensure
that the location and governance of such clinics truly promotes access. Third, such a
model may have superior information properties to other models. Just as in health care,
where individuals with little technical background in medicine may find it easier to
choose between competing health care plans than between particular doctors, so here it
may be that individuals find it easier to choose between clinics rather than between the
vast array of individual legal aid lawyers. Finally, clinics may be better equipped to take
on particular “test-cases” that have broad systemic implications for their constituencies,
even if the stakes for a particular client are limited.
A countervailing consideration is that clinic lawyers are employed on salary and not
directly compensated on the basis of outcomes. There are therefore attenuated incentives
for enhanced productivity and the attainment of dynamic efficiency. If it makes no
difference to clinic lawyers whether they deal quickly and competently with a case, or
slowly and merely adequately, they may have incentives to be slower, more methodical
and invest less time in improving their skills, time management and efficiency than
members of the private bar. Finally, although some practitioners may find the work in
community clinics more personally satisfying than private practice, and (given the
diminished emphasis on the accumulation of billable hours) less stressful as well, the
truncated career ladder that clinic-based models often offer tend to make it difficult for
them to attract and retain senior lawyers who possess valuable experience and expertise.
Perhaps one of the most significant, though sometimes overlooked, objections to the
community legal clinic model is the degree of control which the state exercises in the
setting of clinic priorities. As Cooper observes, “the most serious difficulty brought about