These days the public are regularly being told “you don’t need a lawyer for that”. Just a couple of weeks ago I wrote here about a former police officer, Philip Kedge, who has set up a website linking the public with McKenzie friends and who claims that ‘family law does not need lawyers’. And it is not just those who seek a slice of the legal business pie who say such things. Last week the Ministry of Justice rolled out its online probate service, announcing that most people will no longer need to instruct a solicitor to deal with their probate matter.
Mr Kedge claims that things have changed. He says on his website that the “myth that ‘Family Law Needs Lawyers’ is now being exposed as more and more Litigants in Person empower themselves to take their own cases forward.” He says that: “The genie is finally out of the bottle and it isn’t going back in anytime soon.”
Similarly, the Ministry of Justice suggest that their new online systems, which of course include online divorce, are changing the legal landscape, doing away with the need for lawyers.
But has anything really changed? I don’t think that it has. It was always the case that the public could deal with simple legal matters without lawyers. And many people have always done so. Litigants in person are not a new phenomenon – I dealt with them throughout my career, which began in the early eighties, long before legal aid was abolished for most private law family matters.
When people choose to instruct a lawyer to deal with a simple matter they are essentially just paying someone else to do the work for them. That work may not be complicated, but it may be time-consuming, particularly for the lay person, who will obviously usually take far longer to deal with the matter than a lawyer – and everyone knows that time is money, particularly for those with busy lives.
The problem, of course, is that not all legal matters are simple, and matters that may seem simple to the lay person can be anything but.
Let us look for a moment at that probate example.
Yes, probate can be quite straightforward (albeit often time-consuming – I did a bit of it myself in the past, and it can be surprising just how many matters need to be dealt with even when administering a ‘simple’ estate), but it can also be very complicated, involved difficult legal concepts. The intestacy rules, for example, aren’t always straightforward (and they are likely to crop up regularly, as many people do not have a will). And even interpreting a will can throw up horrendous complications, especially if, as so often these days, the will is homemade. And how many non-lawyers have even heard of the probate-related rules of abatement, hotchpot or commorientes? (Google them if you want to know more.) Don’t be fooled by anyone into thinking that probate is always simple.
Dealing with complex legal matters without a lawyer is downright dangerous, and those who suggest it is not are guilty of doing the public a disservice. Remember, we may be dealing with a lot of money. With the probate example, it could relate to a large estate and even to a large Inheritance Tax bill. In the area of family law, we may be dealing with a substantial divorce settlement. Or we may be dealing with something far more important than money, such as the welfare of a child. In these cases the legal fees incurred by instructing a lawyer will usually pale into insignificance when compared to the value or importance of the matter being dealt with.
So yes, by all means deal with that straightforward matter without a lawyer, just as you always could. But just make sure that it really is straightforward. Might it not be worth the small investment in a modicum of legal advice to make sure it is? It could just save you an awful lot in the long run.
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Author: John Bolch