Professional and Paraprofessional Paradigms: Policy and Theory

In England and Wales, policy interest in nonlawyer agencies was heightened in 1986, when the government suggested an almost wholesale transfer of state-funded legal advice functions from solicitors to lay advisers (Lord Chancellor's Department [LCD] 1986). These proposals were resisted by the legal profession and the advice sector, partly because the proposals seemed to be based predominantly on saving costs. By the time a more concerted attempt to introduce nonlawyer agencies into the legal aid scheme was attempted, nonlawyer agencies were seen as a supplement to, rather than a replacement for, solicitors operating in private practice. The policy justifications were “extending the supplier base providing services in the areas of social welfare law which are underprovided by current suppliers” (LCD 1995:23) and providing better value for money by freeing nonlawyer agencies from some of the bureaucratic controls that remained on solicitors. It was also claimed that “[t]he best practice adopted by agencies takes an holistic approach to clients' problems and explores a range of solutions, many of which are not court-based” (LCD 1995:23), and that nonlawyers offered greater prospects of innovation and improved client choice (LCD 1998). For the profession, the proposals raised the suggestion that they would be undercut by the not-for-profit (NFP) sector in state-sponsored unfair competition. Several practitioners raised quality concerns about nonlawyers.

These policy papers thus suggested three main benefits of allowing lawyers and nonlawyers to contest the delivery of legal help services. Nonlawyers would be cheaper than lawyers, together nonlawyers and lawyers would maximize quality and access, and they would each contribute something “different” to the range of legal help services available to the public. This suggests that, from judgments on cost, quality, and access, it may be possible to infer positions about the relative value for money for a particular type of service. If a service is cheaper and provides higher levels of access and better quality, then it is obviously better value for money. However, where quality and cost are in contradiction, then a more nuanced approach to understanding how quality differs is required. If a service is more expensive but better, how is it better and why? This discussion requires a closer look at the quality paradigms claimed by professional lawyers and their nonlawyer counterparts. In this article, these have been termed the professional paradigm and the paraprofessional paradigm, respectively.

Apart from general assertions about the relative cost and quality of lawyer and nonlawyer work, it is important to identify the different claims of the professional (lawyer's) model and the paraprofessional (nonlawyer's) model. The literature suggests a number of key characteristics for the professional model of legal work (see, for example, Reference SommerladSommerlad 1995:164–75; Reference KritzerKritzer 1998:5):

• • a “craft approach,” treating every problem as unique and requiring customized service;

• • putting the client's interests above the lawyer's own economic (or other) interests and guaranteeing independence from the state;

• • substantial training in legal thought and the skills of legal practice, improving the capacity to perform high-quality legal work;

• • breadth of knowledge ensuring that “subtle and important issues and linkages” can be recognized, aiding appropriate/comprehensive diagnosis of the client's problems;

• • the ability to pursue a case all the way through the courts, providing critical leverage in advancing the client's interests; and

• • for dissatisfied clients, recourse to disciplinary bodies enforcing ethical codes.

A further aspect of this model is that the considerable protections afforded to clients, e.g., in client security funds or professional indemnity policies, and in particular the costs of training the profession, justify increased remuneration for lawyers. On this basis, the professional model is more expensive, but justifiably so, given the importance of the consumer interests at stake.

A review of the literature on nonlawyers provides an interesting set of alternative characteristics that are claimed for nonlawyers (see, for example, Reference Steele and BullSteele & Bull 1996; Reference KritzerKritzer 1998; ABA Commission 1995). The nonlawyer paradigm claims to be:

• • more independent than lawyers (who are part of the establishment);

• • more responsive and attentive to client's problems;

• • holistic in their approach to problems (dealing with the whole problem rather than just the legally relevant bit of it and dealing with nonpresenting problems in addition to the problem with which the client presents);

• • easier to access (more consumer-friendly, having less forbidding office environments and advisers);

• • easier to communicate with (the claim being that clients find communicating with lawyers a problem);

• • more willing to innovate with new technologies; and

• • not so court-centric in their approach to problem-solving, hence being open to alternative dispute resolution (ADR) and greater innovation.

What is noteworthy is how similar many of these characteristics are to those claimed by lawyers: holism is similar to the “subtle linkages” claim of lawyers, and both models claim independence. But there are key areas of difference and emphasis. The professional paradigm emphasizes the craft or skill itself, while the nonlawyer paradigm emphasizes the client or problem. Thus the nonlawyers' claims are based partly on competence (“we do what you would expect lawyers to do, only better”) and partly on difference (“our approach is different, and therefore better”). Some of the claimed virtues of lawyers are problematized (such as their access to the courts). It is through these claims of greater competence and useful difference that the contest between lawyers and nonlawyers is framed.

A large theoretical and empirical literature lends support to the criticisms of lawyers implicit in the nonlawyer paradigm (see, for example, Reference AbelAbel 1988, Reference Abel1989; Reference FelstinerFelstiner 2002 for a recent review of the literature). More specifically, Bourdieu's largely theoretical approach argues that lawyers deal with clients in such a way that clients' subjective views are rendered “vulgar” and their sense of fairness is “disqualified” (Reference BourdieuBourdieu 1987). Sherr demonstrates empirically the deficiencies of lawyers as client interviewers: treating clients as examination questions, not people with problems; diagnosing too early; and controlling in a damaging way the definition and solution of problems (Reference SherrSherr 1986). Genn, for example, exposes the failures of personal injury lawyers (Reference GennGenn 1987). Many have emphasized the passivity, incomprehension, and lack of influence or control of clients when they deal with lawyers, particularly in criminal proceedings, where lawyers are prone to adopt stategies that compromise their autonomy from the court/state (for example, Reference McConville, Hodges, Bridges and PavlovicMcConville et al. 1994; Reference Bottoms and McCleanBottoms & McClean 1976; Reference Ericson and BaranekEricson & Baranek 1982; Reference GorielyGoriely et al. 2001).

Fewer studies have had as their main focus a comparison of how nonlawyers and lawyers actually perform. Genn and Genn's study considers representation at administrative tribunals (covering social security, immigration, employment, and mental health matters) (Reference Genn and GennGenn & Genn 1989, especially pp. 243–47). They use quantitative data on outcomes, observation of hearings, and interviews with tribunal panels, staff, and representatives to assess the effectiveness of representation at tribunals. They compare the type of representation in relation to their outcome data. The findings indicate that the nature of the representative has a significant, independent effect on outcomes but that it is specialization, rather than the nature of the representative, which affects outcome. Thus, for example, in welfare law, specialist lay (nonlawyer) agencies had the greatest impact on outcomes; in immigration and mental health, honors were more even; and in employment, the lawyers had the greatest impact. Their interview data tend to support the view that specialization, rather than legal qualification, is the key to successful representation.

Kritzer's study also focuses on representation in four settings: unemployment compensation appeals, tax appeals, social security disability appeals, and labor grievance arbitration (Reference KritzerKritzer 1998). Observation, quantitative indicators of outcome, surveys, and informal conversations are the main sources of his data. The picture is largely one that suggests that specialist nonlawyers are competent advocates, although in one of his four settings specialist lawyers had marginal benefits over their nonlawyer counterparts. In another setting, specialized nonlawyers outperformed nonspecialist lawyers. His comparison of lawyers and nonlawyers concludes with a view that nonlawyers are effective in three of these four settings, and that a number of lawyers provide what is politely labeled “marginal representation.” Similar to Genn's analysis of specialization, he emphasizes procedural and substantive expertise. Substantial experience is more important than formal legal training.

McConville et al. question the use of nonlawyer personnel in criminal defense firms, but this is a criticism based on the absence of supervision, their career backgrounds (in particular, those who were formerly in the police being too prosecution-minded), and the unstructured use of such personnel in a routinized, rather than strategic, way. In other words, they mainly criticize the organization of solicitors' firms, rather than the relative abilities of lawyers and nonlawyers. Interestingly, they deduce that both lawyers and nonlawyer staff lack the necessary training to perform their job effectively (Reference McConville, Hodges, Bridges and PavlovicMcConville et al. 1994, especially pp. 38, 280–81).

Bogart and Vidmar find independent paralegals operating in a wide range of areas. Their assessment is based principally on interviews with paralegals, lawyers, judges, and clients. Few paralegals had formal education or preparation to be a paralegal, and they did not appear to participate in continuing education in any systematic way. Interestingly, clients felt that paralegals were cheaper and more responsive/attentive to their problems, and tribunals, justices of the peace, and prosecutors were supportive of paralegals appearing in their cases, particularly if they were properly trained and regulated (Reference Bogart and VidmarBogart & Vidmar 1989:54). There was evidence of poor quality from some paralegals but also evidence that they may not be better or worse than lawyers practicing in the same areas (Reference Bogart and VidmarBogart & Vidmar 1989:37).

The contest between professional and paraprofessional models of provision can also be placed in a wider context. Kritzer sees a trend toward “post-professionalism,” which involves three principal ingredients: a loss of exclusivity, an increase in segmentation (or specialization), and the growth of technology (Reference KritzerKritzer 1999). Traditionally recognized professions (“exclusive occupational groups applying somewhat abstract knowledge to particular cases” [Reference AbbotAbbott 1988:8]) surrender their exclusivity to “general” professions, as defined by Reference PerkinPerkin (1989). Perkin sees this trend toward general professionalization as a replacement of aristocratic/traditional forms of governance, administration, and service delivery by increasingly meritocratic elites. For Perkin, these elites bring significant benefits to society but also risk holding an abusively dominant position (Reference PerkinPerkin 1996:xiii–vi). Regarded in this way, the difference between exclusive professions and dominant merito-cracies may not be so great. Nevertheless, it can be said that a key post-professional concern is to identify and describe how professional dominance is being undermined or reshaped. Perkin's analysis suggests a need to ameliorate the problems that result from professional dominance.

Paterson has similar concerns with reshaping, arguing that professionalism is not dying but changing (Reference PatersonPaterson 1996). For him, professionalism is dynamic, contingent, and capable of evolution and, more specifically, that the “contract” between the legal profession and the wider community is capable of being renegotiated to deliver more to consumers, e.g., stronger ethical protection and higher quality, while retaining some of the more traditional elements sought from the profession in professionalism, e.g., autonomy and social status. Paterson's neocontractual view challenges claims about deprofessionalization. Several writers have expressed concern that legal work is being deprofessionalized or proletarianized (see most recently, for example, Reference SommerladSommerlad 1995; Reference Wall and JohnstoneWall & Johnstone 1997; and more generally Reference Murphy, Torstendahl and BurrageMurphy 1990). Sommerlad in particular has emphasized the dangers posed to the legal profession in relinquishing self-regulation of quality (Reference SommerladSommerlad 1995). More recently, she has also begun to emphasize some perceived improvements in the quality of law firm management even though control has been relinquished (Reference SommerladSommerlad 2002). Moorhead has suggested that new forms of professional regulation may contribute to a reflexive improvement in standards and professional outlook (Reference MoorheadMoorhead 2001).

All these approaches to describing professionalism have a common thread; the legal profession's monopoly on expertise is now contested. A concern with deprofessionalization implies that this is a retrograde step: it diminishes motivation, quality, and autonomy/independence. However, neocontractualism and reflexive regulation suggest that the contest can be beneficial, since it may be a means by which professionalism is refocused on delivering better quality for society, as its quality is no longer taken for granted. But post-professionalism suggests that the process is inevitable, a part of larger social and economic forces, rooted in information technology and specialization. It follows that one key aspect of the adjustments that neocontractualism, post-professionalism, and deprofessionalization seek to describe is the increasing struggle that established legal professions have to keep other providers away from “their” markets. This struggle is played out in many forms: unauthorized practice, unbundling of legal services, self-help, and multidisciplinary practices.

The contest between nonlawyers and lawyers provides a significant opportunity to explore some of the key claims of professional and paraprofessional models of legal services. To simplify, both models claim to be of higher quality, while it is traditionally assumed that the nonlawyer, NFP model is cheaper than the provision of services through lawyers such as solicitors. The reality is much more complex, suggesting important lessons about the nature and protection of professionalism and its relationship to economic forces. While the apotheosis of any contest between professional groups, unrestrained competition on price, was not permitted in this study, the experiment does illustrate important concerns about the relationships between markets and quality that support to a degree the concerns of the professional project. Paradoxically, these findings provide important critiques of the traditional assumptions about professions and the neoliberal theories that have begun to challenge professional domination.

Nonlawyers in the Legal Aid Scheme

The legal aid scheme in England and Wales was set up after the Second World War as one part of the welfare state. To this day it remains the primary vehicle of state-funded support for legal advice, legal help, and representation (with expenditures predicted to rise to £1.9 ($2.9) billion by 2004–05). Although there are other forms of government-funded and charitable assistance (in particular, local authority funding of advice centers), the sums involved are more modest. When this article refers to legal aid, it refers specifically to this main scheme for central government funding.

When the legal aid scheme was originally set up, it reflected the interests of the legal profession. The fund was administered by the solicitors' professional body, the Law Society, and as a result it has focused on the mainstays of private practice (divorce, crime, and, until recently, personal injury litigation). Criminal advice, assistance, and representation were developed to include comprehensive coverage for most cases in police stations and, subject to means testing, the courts. Most divorce/family cases were similarly covered, as were civil cases, as long as they involved court proceedings. Civil and family work was usually subject to a merits and means test. In addition, limited initial advice and assistance (usually two hours) could be provided on any question of domestic law under the green form scheme if clients met a stringent means test. This was the principal means by which clients could receive assistance under the legal aid scheme for social welfare problems (such as debt advice, immigration, social security, and employment problems). Most of these areas involved administrative tribunals, rather than courts, and the scheme did not usually cover advocacy in tribunals (though a scheme called ABWOR [advice by way of representation] sometimes permitted limited advocacy).

Other areas of social welfare law, particularly housing, involved a mixture of administrative tribunal and court work, but private practice, in contradistinction to law center lawyers, was slow to engage in this kind of work, preferring to work for the wealthier litigants in such disputes (Reference BindmanBindman 2002). Representation in debt work, although it involved court proceedings, was not usually fundable as most cases involved renegotiating debts (debt counseling) rather than challenging the debts, and such cases did not meet the legal aid merits tests. Any solicitor interested in pursuing social welfare cases generally had to find a way of getting them away from tribunals and into courts or wrestle with a hefty bureaucracy to increase the amount of time that could be spent on such cases beyond two hours.

When the administration of the legal aid scheme was removed from the Law Society in 1989, a government agency, the Legal Aid Board (“the Board,” now renamed the Legal Services Commission, “the Commission”), was created to manage the legal aid scheme. One of its concerns was to loosen the stranglehold that the solicitors' profession had on the scheme. Another was to increase the emphasis of the scheme on social welfare law. The Board showed immediate interest in nonlawyer providers.

Although, unlike in the United States, there was and is no general prohibition on nonlawyers providing legal advice; until the creation of the Board, funds for legal aid could only be provided through solicitors' firms and law centers employing solicitors or barristers. This meant that for most legal problems advice was mainly available from lawyers, if it was available at all. Nonlawyer advice was located in a smaller group of NFP advice agencies and a larger network of Citizen's Advice Bureaux (CABx) providing advice to those who had no ability to use the legal aid scheme if they did not employ a solicitor. Some of these agencies (especially the CABx) were generalist in nature; they would seek to advise on most types of problems, legal or otherwise, and relied on a mixture of paid staff and trained volunteers, some of whom would conduct casework to help the client beyond simply giving advice. Others were more specialist in nature, would focus on a particular category of case (e.g., debt) or client (e.g., specific ethnic groups), and tended to rely more on specialist paid workers. Specialist agencies, in particular, would be more likely to provide representation in tribunal contexts and seek to assist litigants in courts (where they have no rights of audience but can appear with the leave of the court or assist as McKenzie friendsFootnote ¹).

This restriction was formally removed when the Board was created, and the Board slowly introduced nonlawyer providers of legal services into the scheme with a succession of pilot programs (Reference Sherr, Moorhead and PatersonSherr, Moorhead, & Paterson 1994; Reference Steele and BullSteele & Bull 1996). These pilot programs did not test the relative abilities of nonlawyer and lawyer agencies, but they provided agencies with a stable source of funding that most used to increase the number of specialist advice workers that they could employ to provide advice and casework, although some also used the money to improve the supervision/management of volunteers, rather than funding specific specialist caseworkers.

At this stage in the reform process, solicitors' firms could still receive legal aid funding for any case that met the relevant merits and means criteria, as of right. The Board spent the whole of the 1990s developing a scheme that was to lead to funding through contracts that would permit legal aid funding only to be provided through quality-assured suppliers. This was the basis on which the Board planned to exclude large numbers of solicitors' firms from the legal aid scheme (mainly those who were not specialists in legal aid work) and include more nonlawyer agencies through a process of contracting.

A large-scale pilot program of these contracting reforms (the Block Contracting Pilot), conducted between 1997 and 1999, was a precursor to this change. The Block Contracting Pilot, with probably the largest in-depth assessment of civil legal advice ever undertaken, provided a welcome opportunity to test assumptions about quality, cost, and access and compare the approach of the “professional” model of solicitors' firms (staffed mainly with solicitors) with the model of NFP agencies staffed mainly by staff who were not solicitors or barristers.

Following the pilot program, in 2000, the market for publicly funded legal help (what was formerly advice and assistance and ABWOR), historically the preserve of solicitors in private practice, became a contested market. Nonlawyer, NFP agencies and profit-making solicitors' firms now seek contracts from the same, cost-limited funds. While government policy has flirted with direct price competition in this area, no concrete proposals have yet been advanced. Thus there is a limited budget from which NFPs and solicitor firms can seek contracts for civil legal help. Regional Legal Services Commission directors take funding decisions against regional plans that indicate which work categories are most required in which locations. The price of contracts is fixed by reference to standard formulas. NFPs and solicitors thus contest the market by seeking the best fit between their own interests, the regional plans, and the regional director's discretion. As a result, the situation is one where the market is contested (both NFPs and solicitors seek contracts) but not subject to price competition.

The rise of the nonlawyer and NFP sector has been dramatic, rising from £2.1 ($3.1) million in 1990–91 (Reference SmithSmith 1997) to more than £37 ($55.5) million in 2001–02, or 19% of the total expenditures on legal help (Legal Services Commission [LSC] 2002). Initially, this growth was accounted for by NFP agencies employing solicitors to carry out legal aid work. Law centers also had solicitors and/or barristers on their staff. But it is nonsolicitor agencies that have come to dominate the NFP sector's take from the legal aid fund (Reference SmithSmith 1997:25).

Even given the large rise in legal aid funding, compared with the solicitors' profession, the NFP sector's take from legal aid is comparatively modest. The legal aid budget is about £1.6 ($2.4) billion. Of that, about £780 ($1,170) million is spent on civil representation, i.e., funding of legal services directly related to the conduct of litigation (including family). Just over £800 ($1,200) million is spent on criminal advice and representation, and £220 ($330) million is for legal help. This latter type of work is the principal area where the contest between lawyers and nonlawyers occurs. Legal help (formerly know as advice and assistance, or “green form”) permits advice on most questions of English law but not court representation. While some funding is available before certain tribunals, the scheme is generally used to provide initial advice on legal issues, the conduct of preliminary negotiations, and preparatory work for tribunal cases where representation is not available. It is through this scheme that advice on welfare benefits, debt, employment, immigration, and many housing cases is given.

The Civil Block Contracting Pilot

The civil nonfamily Block Contracting Pilot provided an opportunity to look in more depth at the differences between lawyer and nonlawyer provision. NFP agencies, which were staffed almost entirely by nonlawyers, could be compared with private practice solicitors' firms staffed mainly by lawyers. The research design allocated solicitors to one of three different groups with different contract types. Each of the three solicitors' groups and the NFP agencies were paid in different ways, allowing an examination of the application of economic forces to legal services. Because solicitor firms participating in the pilot program were allocated randomly to one of three payment groups, this enabled the pilot program to proceed with an element of randomized control.

• • Group 1 solicitors were paid for work at an hourly rate, subject to bureaucratic controls on how much time they could spend on any individual case. For experimental purposes, they were as close as possible to a “control” group, as they were essentially operating a payment scheme equivalent to the pre-contract green form scheme.

• • Group 2 solicitors were paid a fixed sum per annum and were asked to provide the level of service that they felt provided the best balance of access and value for money. The number of cases they could do and the amount of work they could do on any case were not controlled.

• • Group 3 solicitors were paid a fixed sum per annum for a specified minimum number of matters to be opened during that period.

• • NFP agencies were paid on the basis of contracts for 1,100 hours (or multiples thereof), being the time a caseworker would be expected to spend on casework over one year.

As a result, the Block Contracting Pilot provided a unique opportunity to compare the virtues of lawyer and nonlawyer provision. It also provided, through the random allocation of solicitors to the three groups, an opportunity to gauge the impact of different contractual systems on solicitors' work. In particular, through Group 3, as the obvious stepping-stone to competitive tendering (where price and output would need to be specified were it to ever work in a meaningful way), the implications of economic forces on quality could be examined. Group 2 was closer to the NFP model, as it provided a block of funding but did not specify the number of cases that they had to complete to ensure that they got paid. NFP providers, however, were under an incentive to maximize the time they spent on contractual work (as they generally had to complete a minimum number of hours per year to ensure they got paid). Group 2 was under no such incentive. It was designed to examine how solicitors' firms would behave when they were under no formal incentive to maximize their output in any particular way. They did not have to bill a certain number of hours, and they did not have to start or finish a certain number of cases. Group 1 was designed to provide an indication of how contracted firms would operate if the methods of payment were based on the pre-contract system of payment. As might be predicted, there were differences in cost between the three groups. Group 2 firms were more expensive than the other two groups, but the differences were marginal when compared with the difference between NFPs and solicitors (which was upwards of £100 [$150] per case).

This article picks out the main areas of interest to the debate on professionalism. As such, we concentrate principally on the differences between nonlawyers and solicitors. We also draw out, albeit in less detail, some of the main differences between the three payment groups for solicitors, as these illustrate some broader concerns about the role of economic forces on quality and the construction of professional competence. The full study is published elsewhere (Reference Moorhead, Sherr, Webley, Rogers, Sherr, Paterson and DombergerMoorhead et al. 2001).

Methodology

Our comparison between nonlawyer and solicitor organizations covered advice and assistance work in all civil areas other than family work. We considered welfare benefits, debt, housing, and employment cases in detail. The assessment did not cover litigation but did include cases handled within administrative tribunals.

The research involved 143 contracted organizations (43 of these were nonlawyer organizations, while the others were solicitor contracteesFootnote ²). We selected willing solicitor participants from four LSC regions: Liverpool, Leeds, Nottingham, and London. They tended to be the larger and more committed firms involved in legal aid work in those regions. The nonlawyer agencies were selected on the basis of their prior participation in a pilot program introducing contracts for nonsolicitor agencies to do legal aid–funded work. As with the solicitors' firms, these participants would be likely to be more committed to legal aid–funded work than other agencies.

The research employed a wide range of quantitative and qualitative data for understanding behavior and evaluating quality and performance issues. This provided a detailed and triangulated view of many of the issues. Data collection occurred between 1997 and 1999.

Analysis of the Results

The following analysis covers the main contested ground of the theoretical paradigms outlined above. The presumption has traditionally been that lower-cost services, even with a potential diminution in quality, enable greater access to legal services, be they publicly or privately funded (Reference GarthGarth 1983), and that nonlawyer provision will give rise to such lower-cost and lower-quality provision (ABA Commission 1995). In the context of United Kingdom legal aid debates, the professions have attacked this as unfair competition (“justice on the cheap”). As will be seen, experience from the Block Contracting Pilot questions all of these assumptions. The following sections of this article outline the data relevant to the issue of relative cost, quality, and accessibility of services. The ability of nonlawyers to handle cases requiring an adversarial approach and the “softer” client values posited by the paraprofessional model are also dealt with in addition to the debates about holistic service.

Overall Levels of Quality

A related part of the professional rhetoric on nonlawyer services assumes that they are cheaper and inferior to lawyer-provided services. In extremis it is sometimes claimed that nonlawyers pose significant risks to the public. These assumptions are not borne out by this assessment. An assessment of the relative quality of lawyers and nonlawyers was possible in three ways: an assessment of client satisfaction, the judgments of peer reviewers, and an assessment of outcomes. All of these assessments pointed in the same direction, as the following diagrams show.

Figure 1 shows overall levels of satisfaction, as indicated by the client's reponse to the final question on a postal survey (“Overall, how would you rate the service provided by your lawyer/adviser?”). Nonlawyer agencies had fewer clients with poor levels of satisfaction and more with high levels of satisfaction than solicitors, though the differences are not dramatic. A total of 76% of the nonlawyers' clients rated them as excellent or very good. For the lawyers' clients, the figure was 70%.

Figure 1. Client Satisfaction: Lawyers and Nonlawyers Compared (Valid N=837 cases)⁹

While nonlawyer clients rated their advisers more highly than solicitors' clients did, overall they also tended to provide similarly positive ratings on specific criteria, as Table 1 shows.

Table 1. Detailed Client Satisfaction Scores

As can be seen from the final column of this table, many of the differences were statistically significant.Footnote ¹⁰ Thus nonlawyer clients were more satisfied that their advisers knew the right people to speak to, paid attention to their emotional concerns, listened to what they had to say, treated them as if they mattered, did what they wanted, had enough time for them, told them what would happen in the end, and really stood up for their rights. This evidence supports the view that nonlawyer advisers are more sympathetic and communicate better with clients. Interestingly, however, the lawyer pathology, that clients regard lawyers as poor communicators and unsympathetic to their problems is not borne out: solicitors were rated positively by clients as well, just not so strongly. Once external factors affecting satisfaction were controlled for, however, the difference between nonlawyers and solicitors in terms of client satisfaction was only on the borderline of being statistically significant (p=0.064).Footnote ¹¹

Client viewpoints, while important, tell us very little about the key issues for quality, such as correct advice and appropriate help. Outcome measures looking at the specific results achieved on cases provided some indication of this. Figure 2 compares the results for lawyers and nonlawyers by looking at four outcome indicators: the percentage of cases in which the client received a lump sum payment (e.g., compensation for unfair dismissal), the percentage of cases in which the client received new or increased regular payments (e.g., welfare benefits payments), the number of occasions on which property was received or retained (e.g., the client's house was not repossessed), and the number of times third-party action was prevented (e.g., in relation to enforcing a debt).

Figure 2. Specific Results for Nonlawyers and Solicitors (Valid N=82,705 cases)

This figure looks at all cases closed under the contract, although similar differences were found in particular work categories. While nonlawyers gained considerably more concrete results than lawyers in relative terms, what is noticeable generally is how few cases yielded concrete results. This is a feature of the emphasis on advice within the legal help scheme, whereby clients can receive help on a wide range of problems not necessarily susceptible to a concrete (and measurable) result. The differences between lawyers and nonlawyers were statistically significantFootnote ¹² but may have been partly caused by differences in the type of work carried out by lawyers and nonlawyers. In areas where concrete results were more prevalent, further analysis was carried out to control for these effects, and the picture was similarly strong. In terms of positive financial results, the differences were statistically significant (p≤0.05) even when other factors affecting outcomes were controlled for.Footnote ¹³ When such factors were controlled for, it could be estimated that the likelihood of a solicitor getting a positive financial result in a welfare benefit case was about a quarter of the likelihood of a nonlawyer agency. In employment cases, solicitors were about half as likely to get a positive result as nonlawyers were. In housing cases, however, the picture was more mixed.

Such differences in case outcomes provide persuasive evidence of differences in quality, but such differences may also reflect other issues about the type of case that comes to the different types of organizations. We could control for this to an extent through multivariate analysis, but we also needed to look beyond “results” at the fuller range of behavior that makes up “quality.” Peer review was the main assessment method for this task (Figure 3).

Figure 3. Peer Review Results for Nonlawyers and Lawyers (Valid N=718 cases)

Levels of work below threshold competence (the level at which contractees should be performing) were very similar, although solicitors had more cases falling below the level of inadequate professional services as “poor.”Footnote ¹⁴ This suggests that, if anything, solicitors posed slightly more of a risk to the public than nonlawyers. More marked, however, was the difference in the number of cases handled at the higher levels of quality. Here the nonlawyers performed much more strongly.

Peer review found significant differences in the quality of work in the two sectors, before other factors were controlled for (see below).Footnote ¹⁵ A multinomial regression controlled for other factors that had a statistically significant relationship with peer review scores.Footnote ¹⁶ This confirmed that where the case was handled by a solicitor's firm, rather than an NFP agency, the likelihood of a case being assessed as below threshold competence increased markedly, and conversely, such cases were far less likely to be assessed at above threshold competence.Footnote ¹⁷

In one area, it was suggested that nonlawyers appeared to be providing poorer-quality advice overall than solicitors. Model client visits revealed more quality concerns in nonlawyer agencies than with solicitors' firms, although the results were not statistically significant. These visits concentrated on the initial interview between a client and the contractee. This aspect of nonlawyer work was most likely to be provided by volunteers not funded under contracts. The other monitoring mechanisms were more likely to concentrate on work carried out by specialist workers funded under the contract.

Overall, then, these results indicate a statistically significant difference between solicitors and nonlawyer agencies in terms of the quality of their contracted work. NFP agencies had clients with slightly higher satisfaction ratings and got significantly better results, and their work on cases was more likely to be graded at higher levels of quality by experienced practitioners working in their field. Put alongside the findings on quality, the “justice on the cheap” presumption about nonlawyer services is turned on its head. Nonlawyers provided significantly improved quality (for about 10 to 20% of clients), but at significantly increased cost (about double). The payment regimes of different contract types may have had a significant impact on this. However, it was possible to control for the extra time spent per case on nonlawyer clients in the multivariate analysis discussed above. Nonlawyers still did better. As well as the crucial areas of quality and cost, the contest between nonlawyer and professional paradigms presented a subtler analysis of other aspects of the provision of legal services. Evidence relevant to these concerns is now considered.

Access Barriers and Nonlawyers

In addition to quality, another battleground between lawyers and nonlawyers is the issue of access. Accessibility of service is a key issue for clients. While nonlawyer agencies often claim that they are more user-friendly, less forbidding than lawyers, and therefore more accessible, they are also criticized for long queues and erratic opening hours. The research looked at access issues in two ways. One was a comparison of the socioeconomic profiles of the clients in nonlawyer and lawyer caseloads. Differences in these populations may suggest that one type of provision is more accessible, or at least the favored method of access, for particular socioeconomic groups. The second was a more direct assessment of how easy it was to get advice from these agencies through using model clients.

The pilot program did find differences in the client bases of the nonlawyer and solicitor sector, but in general it did not suggest dramatic socioeconomic differences in client type, as Table 2 shows.

Table 2. Socioeconomic Indicators of Client Base

For example, both sectors had very similar gender profiles. Similarly, while on the whole, groups that generally suffer from particular access problems (minors, more elderly clients, and ethnic minorities) were more strongly represented in the nonlawyer sector, these differences were not particularly marked. However, one area where the differences were much more marked was disabled clients. Nonlawyer organizations were nearly twice as likely to see clients who had a disability, medical, health, or psychological problems: one in five of nonlawyer clients was disabled, compared with one in nine of the solicitor clients. It suggests that this client group found nonlawyer agencies more accessible.

It is also important to place these findings within a broader context. Some types of work (especially mental health, community care, and education work) only tended to be handled by solicitor contractees. In these areas, solicitors were the only source of access. Interestingly, some of these areas are relatively new additions to legal services, suggesting that lawyers were better at innovating to provide new services than nonlawyers. More generally, while nonlawyer contracts tend to be quite large compared with solicitor contracts, the number of solicitors providing civil legal advice and assistance across the country is far greater than the number of nonlawyer agency contracts. As a result, solicitors are, numerically at least, the largest providers of civil legal help and the most geographically dispersed. They are also more likely, on the whole, to be operating in smaller towns and rural areas than nonlawyer agencies, which tend (with some noticeable exceptions) to be more urban-based. As such, in spite of the small volume and possibly lower levels of specialization, solicitor firms provide (and are likely to go on providing) important access points for clients.

Model client visits were also used to conduct a more direct assessment of the actual barriers to access for clients. Model clients had to make contact with contractees in the same way as an ordinary client would. In 10 out of 45 scheduled model client visits, access problems occurred. These problems manifested themselves in different ways in the two sectors. In 5 out of 33 visits planned for solicitor firms, visits did not take place because of access problems. This meant that access problems were less prevalent in the solicitor sector (occurring in 15% of visits) but more serious (access was denied because the firm declined to deal with the case). This compares with 5 out of 12 nonlawyer visits where there were access problems (42%). In nonlawyer agencies all the visits took place, but only after considerable persistence on the part of the model client. Real clients would have been much more likely to give up and fail to get advice. Solicitors unable or unwilling to see clients with particular types of problems used receptionists to screen those problems. It is not clear how far receptionists were doing so on the specific instructions of fee earners or on a more ad hoc basis (e.g., when they perceived that a fee earner was particularly busy). Nonlawyer agencies tended to deter, rather than decline, clients with their problems by closing agencies when they were too busy, declining to make appointments and requiring clients to queue for long periods.

When clients did see someone in a nonlawyer agency, the initial appointment might typically be with a volunteer caseworker who, as the model client exercise showed, would be likely to give poor-quality advice rather than research the client or the client's problem or refer the client to an appropriate expert adviser. Overall, these data suggest that both sectors had access problems and that this was a particular problem in the nonlawyer sector (see also Reference GennGenn 1999:67–104).

Conclusions: Against Monopolies and Markets

In discussing the relative performance of the nonlawyers and lawyers, it is important to acknowledge that the economic, cultural, and historical context of the two sectors is different. Indeed, one would expect these differences if there was to be a contest between them of any note. Nonetheless, the differences are important. Although the hourly rates were higher for solicitors, nonlawyers were under a contractual incentive to increase the amount of time spent on cases. The form of contract allowed (indeed encouraged) the very significant differences in time spent per matter between nonlawyers and solicitors. Nonlawyers also came with specific approaches—in particular, to debt work, which meant that advice and assistance for them could be the means for running substantial pieces of work. It would be surprising if these factors did not play a role in the way both sectors worked under contract. They lie at the heart of the differences in cost between the two sectors. The different approach to welfare benefits (probably) and debt work (more definitely) emphasizes that nonlawyers and lawyers have quite different ideas about the role of advice and assistance.

Such differences do not account for all of the differences between both sectors. Assessments of quality were able to control for these effects. Through multivariate analysis, we were able to control for the independent effect on client satisfaction, case outcomes, and peer review evaluations attributable to, for example, differences in case type, client type, and the amount of time spent on cases. Even after controlling for such variables, the differences between lawyers and nonlawyers were statistically significant for peer review and case outcomes, and they were near significance for client satisfaction. This enables a confident assertion that taken as a group, nonlawyers perform to higher standards than lawyers. There were smaller differences between the three solicitor groups, but NFP agencies consistently outperformed even the best-performing solicitors (Group 2, arguably the group closest to the NFP model).

Of course there may be factors that we were not able to analyze and control for which may account for some of the differences. NFP agencies relied on nonlawyers but were also non-profit-making. Insofar as this affected the amount of time they were able to spend on cases, we were able to control for it. It is conceivable that effort or attitudinal factors allied to non-profit-making activity, not reflected in the amount of time spent, account at least in part for the nonlawyers' improved performance. Even were this so, the results show that it is possible for nonlawyer agencies to perform at the same or higher levels of quality than lawyers, and that in itself undermines a key claim of the profession to exclusive knowledge.

Within this context, the implications for the professional project are serious. The professional model of service does not always provide higher levels of service than the paraprofessional in the sphere of operations examined in this study. The control on entry into legal practice, years of legal education, and regulation of conduct and competence have done little or nothing to distinguish the lawyers from their nonlawyer competitors. Other empirical evaluations in different contexts tend also to question the supposed supremacy of lawyers; it is specialization, not professional status, which appears to be the best predictor of quality (Reference Genn and GennGenn & Genn 1989; Reference KritzerKritzer 1998). This study points in the same direction. Kritzer's study of legal advocacy is consistent with the view that specialization is usually more important than legal qualifications in determining the quality of advocacy. The Block Contracting Pilot found that it was nonlawyers who were operating at the higher levels of quality in social welfare law (debt, welfare benefits, and employment in particular). The lesson is clear: At least in certain legal service contexts, nonlawyers are at least as capable of providing a satisfactory level of quality as their lawyer counterparts.

In terms of the literature on professionalism, the results suggest that nonlawyers can successfully challenge the monopolies of lawyers, without diminishing quality. This calls into question some of the concerns of the deprofessionalization literature: professionalism (in the sense of high quality) is not solely, or possibly even mainly, resident in formally recognized professions. Some challenge to their exclusivity is merited. This is one of the key ingredients of post-professionalism. Kritzer has emphasized two others: specialization and improvements in technology (Reference KritzerKritzer 1999). Reference SusskindSusskind (1996) suggests that technology will commoditize large areas of law and allow other providers (including nonlawyers) to invade the legal market using technology. The challenge to traditional professionalism posed by this project's nonlawyers is not, however, principally founded on improvements in technology. The nonlawyers in this project were not more technologically advanced than the solicitors, nor did information technology play a stronger role in the delivery of their service. It is probably true to say, however, that levels of specialization did differ. Certainly, for the nonlawyers, their contracts represented core specialist business; this was less true for the solicitors, where such work was more poorly remunerated, of lower status, and sometimes more peripheral to their core work. For neocontractualists, there are also some important plusses: the intervention to challenge and reshape the professional monopoly has led to an injection of quality into the system, but that injection has come from outside of the profession and at an increased cost. Arguably, however, the contestation of their market has provided an additional lever for requiring improvements in quality that have also been wrought within the profession (see Moorhead & Harding, forthcoming).

What of traditional notions of professionalism? These findings call into question the supposed link between professional status and quality. If nonlawyers perform better than lawyers, what are the benefits of self-regulating professions? Professions may give rise to elements of trust and independence, which are rather different from quality as measured here (Fenn & Rickman 1987); but part of the market advantage given to professions is granted on the assumption that they provide higher standards of quality than their nonlawyer cousins. That assumption appears to be false in the areas examined in this project. If this is so, there are implications for legal education too: Either standards are too low and need to be raised (probably resulting in restrictions on entry into the profession and increases in the cost of professional services), or the sustained program of legal education necessary to become a lawyer is unnecessary and an impediment to the evolution of affordable and accessible legal services. Conversely, the work of the NFP sector in welfare benefits, debt, and housing is in areas of social welfare law where many law students receive no training at law school or beyond. It may be that one reason paralegals are able to do so well, relatively speaking, is that the legal education “market” (driven by commercial firm values) has chosen to ignore an area of law now seized by nonprofessional actors.

In truth, the picture is probably more complicated. There may be sections of the legal services market that require lawyers and sections that do not. The block contracting findings relate to social welfare areas of work that tend to be somewhat patronizingly viewed as “lower-level” by the legal profession. In spite of its low status, social welfare law can be extremely complex and demanding. Nevertheless, it may be that when one is looking at other areas of legal services, nonlawyers could not provide such high levels of quality relative to lawyers. Arguably, this is the implication of McConville et al.'s study of criminal defense work, where poor practice was endemic, as was the use of nonlawyer advisers in the police station, although the nonlawyers in that study were trained and supervised by lawyers rather than practicing in their own right (Reference McConville, Hodges, Bridges and PavlovicMcConville et al. 1994). If this argument were true, it would suggest that areas of legal practice that are the sole or main preserve of lawyers need to be carefully scrutinized to see if they really require fully qualified lawyers to carry out these areas of work.

It could also be argued that one reason for the findings reported in this article is that the poorer salaries of legal aid lawyers relative to nonlegal aid work mean that more poorer-quality lawyers tend to do legal aid work. This argument, however, does not obviate a question mark over a process of legal education and professional qualification that does not raise the standard of even the poorer-quality recruits to a standard as high as that of nonlawyer advisers.

It is also important to caution against any suggestion that a critique of the link between professional status and quality (and, by implication, professional legal education and quality) means that legal service markets, with their protected professional providers, should be replaced by a system of unrestrained competition between nonlawyers and lawyers. This is a pressing concern in England and Wales, where competition law is currently being used to encourage deregulation of the professions' restrictive practices (Office of Fair Trading [OFT] 2001; LECG 2001). The Block Contracting Pilot, while supporting the claims of nonlawyers, also suggests the dangers of competition. In particular, the pilot program sheds some light on the impact of economic forces, in particular the implementation of different funding mechanisms, on the provision of work by solicitors. The random allocation of solicitors' firms to the three contractual groups allowed an assessment of how different contractual regimes affected the quality of solicitors' work. The model closest to the necessary basis for competitive tendering on price (Group 3, see above) produced the worst results in terms of quality. This adds weight to the suspicion that unrestrained competition over legal services is, because of the inability of ordinary, and possibly even experienced,Footnote ²⁰ clients to assess quality, likely to lead to a race to the bottom in terms of quality. This suggests that providers of legal services are likely to diminish quality in favor of the visible attributes of a service that the client can assess. The principal among these is, of course, cost.

A further caution is the challenge that these results pose to the received wisdom that nonlawyers are cheaper than lawyers and thus improve affordability and access to clients. Our findings were that nonlawyers were more expensive and less accessible. This is likely to be caused by the particular conditions of our legal aid contracting scheme. Nevertheless, the results serve as a salutory reminder that the costs of the legal profession are not immutably high. Market conditions, particularly where they are set by a powerful funder (the LSC or a legal expenses insurer, for example), dictate cost in a way that does not necessarily mean that professional services are more expensive than nonprofessional services. The salary expectations of lawyers might be thought to be higher than those of nonlawyers, but years of legal aid cuts have left the profession with far lower expectations in this area of work. These findings point to an intriguing possibility in the context of the legal aid scheme of England and Wales: Where supply of lawyers is high and legal services are cheap, the introduction or encouragement of nonlawyer competition has increased cost and reduced access (but also increased quality). Thus, any contest between lawyers and nonlawyers is not simply determined by a battle between the apparent evils of professional power and the naïve interests of the innocent consumer in more choice. It is a complex process of interacting markets, institutions, and histories.

Recognizing this complexity, and asserting the importance of examining the different sectors of legal service markets separately, is an important part of a mature debate on the role of the legal profession in legal service markets. Most comparisons of paraprofessional and professional services in law question the profession's claims to unique knowledge, or the right of professions to be identified with uniformly high (or higher) quality. As a result, the ability of lawyers to hold on to monopoly protections or dominant positions in legal service markets should be questioned, but so should any replacement. For example, one would have to be very cautious in advocating that just because lawyers perform less effectively in social welfare cases, the (de facto) monopoly in conveyancing for gain should be abandoned. Competition alone is dangerous. Structures need to be in place to mediate between economic forces (in the form of control of fee arrangements or broader pressure caused by competition) and quality.

Specialization, rather than professional status, seems to be the best guarantee of such protection. Without professions, or something similar, however, there may be difficulties in establishing suitable shelters from the market through which specialization can develop.

Where there are large funders of legal services, they may be able to develop sufficient expertise to protect quality, although these funders often have to balance conflicts of interest as they manage their budgets while seeking to protect quality at an appropriate level (Reference Sherr, Moorhead and PatersonSherr, Moorhead, & Paterson 1994) and may not always strike these balances correctly (Reference SommerladSommerlad 1995). Where there are not such institutional opportunities, then the question remains: if not professions and if not markets, then what?

No single piece of research can provide an answer to that question. It seems clear that permitting a single profession exclusive rights to a market may degrade quality and increase cost. This research suggests that permitting the contestation of such markets has significant benefits, but also that the terms of any such contest should be thought through with some care.

The importance of specialization and experience requires heavy emphasis. There would be significant dangers in permitting unrestrained competition between established professions and novice providers. A key factor in the successful entry of nonlawyers into the legal aid arena may well prove to be the heavy emphasis on external quality assurance in addition to self-regulation that has characterized this evolution. In an area such as legal aid, where the state sets the terms and rates of pay, it is important to carefully reward experience and specialization without stagnating the “market” for such services to exclude newcomers. This suggests that rather than an absolute professional monopoly or unrestrained competition, what is needed is a more subtle system balancing regulation and market forces. This would stand outside the traditional structures of the legal profession but grant limited protection from unrestrained market forces to those occupational groups, provided they demonstrated sufficient levels of quality. It requires the regulation of competence in legal services markets with a degree of proportionality and sophistication that aims at all times to judge whether legal service providers are operating in the interests of their clients and so in the broader public interest. This mediated form of professionalism has similarities with neocontractualism (Reference PatersonPaterson 1996), as it works with existing (but also new) professional groupings; post-professionalism (Reference KritzerKritzer 1999), because it is based in part on an end to exclusivity; and reflexive regulation (Reference MoorheadMoorhead 2001), insofar as it aspires to alter the professional self-conception more fully toward genuine public interest. To truly professionalize legal services may require the ending of professional monopolies, but it may also require their replacement with a kind of mediated market whereby more providers are allowed entry on equal terms while all claims for higher calling or better competence are put to proper proof.