Comparative Analysis of the Legal Aid Systems in the United States and United Kingdom
Both the United States and the United Kingdom have laws in place to provide free legal services to people who otherwise cannot afford them. These programs are commonly known as “legal aid” systems. In the United States, the bedrock of the legal aid system is the Sixth Amendment to the Constitution, which provides criminal defendants with a right to counsel in federal courts.[1] The US Government also funds programs to provide free legal advice to low-income individuals who have civil legal problems.[2] These services are often provided by nonprofit organizations and pro bono volunteers.[3] In the United Kingdom, the modern legal aid system was established by the Legal Aid and Advice act of 1949.[4] Legal Aid in the United Kingdomis paid for through three mechanisms: Advice and Assistance, Criminal Legal Aid, and Civil Legal Aid. It is estimated that twenty-ninepercent of UK citizens qualify for legal aid and that the government spends two billion pounds annually on publicly funded legal aid. The systems in the United Statesand United Kingdomoperate differently to achieve the same goal: providing indigent people with free and effective legal advice. One of the most notable differences betweenthe two systems is that the UK system allows for better choice of legal advocates. By doing so, the UK scheme allows private firms to gain significant income from the legal aid system.
Legal Aid in The United States
The US Constitution protects the right to counsel for all individuals accused of crimes.[5] There are three general models in the United States for the provision of free legal services to criminal defendants: public-defender systems, assigned-counsel systems, and contract-service systems.[6] Most states use a combination of the three, although the exact arrangement varies by state.[7] The right to counsel for criminal defendants is supported in large part by the Criminal Justice Act of 1964 (CJA), which assures professional counsel for the criminally accused in federal courts by paying an hourly fee for court-appointed lawyers.[8] This structure is still in place today, as private law firms and law school clinics are entitled to receive an hourly fee for providing legal services to indigent people. The current hourly-rate maximum for CJA cases is $140 for non-capital cases and $188 for capital cases.[9] This rate pales in comparison to traditional hourly rates charged by private firms to clients who can afford to pay. Partners in top law firms in New York city often charge upwards of $1,000 per hour for their time. This disparity means that law firms taking on CJA cases do so essentially on a pro bono basis. There is very little economic benefit to large firms representing criminal clients who cannot afford to pay. The CJA hourly rate makes more of a difference for legal clinics in law schools.[10] Legal clinics can use the hourly rate to fund their programs and often provide top-notch legal representation through student advocates.[11]
The US Government also funds programs to provide civil legal aid to those who cannot otherwise afford it. Civil legal aid programs assist individuals in gaining access to government benefits including disaster services, housing, and healthcare.[12] Civil legal aid programs also attempt to provide safety and stability through assistance with domestic violence cases, family law cases, employment cases, and consumer protection cases.[13] These services are typically provided by nonprofit legal aid organizations and pro bono volunteers. The largest funder of civil aid for low-income Americans is the Legal Services Corporation (LSC), which is funded by congress and supports independent nonprofit legal aid programs in every county and territory in the country.[14] While many civil legal aid programs are limited to those living in poverty, some programs are authorized to serve victims of specific crimes (for example, domestic violence) regardless of income.[15] According to 2011 statistics, sixty million Americans qualified for free civil legal assistance, but over half of those seeking help were turned away due to limited resources.[16] The fact that civil legal assistance is not a constitutionally protected right denies such assistance to millions of qualified Americans, creating a class of Americans who can neither afford legal services, nor access free legal services.
One of the common themes in legal aid in the United States is that it is under-funded, and often relies on volunteer attorneys. Large law firms in the United Statesoften have pro-bono programs where they provide legal assistance to individuals who cannot afford to pay, but these programs generally do not generate any significant income. Another common theme in the US legal aid system is that more often than not, clients are assigned an attorney. Individuals seeking both criminal and civil legal aid usually do not have the ability to choose an attorney, rather, they must work with a government-appointed attorney. These attorneys can certainly be of very high quality, but the individual often does not have the freedom to research and choose a preferred attorney.
Legal Aid in The United Kingdom
Legal aid in the United Kingdom is paid through three different schemes: Criminal Legal Aid, Advice and Assistance, and Civil Legal Aid.[17] Legal aid schemes differ slightly between England and Wales, and Northern Ireland; this paper will primarily address the Legal aid system in Northern Ireland. Unlike in the United States, there are no public defenders in Northern Ireland, and individuals seeking legal aid must apply through a private solicitor.[18] This difference allows law firms in Northern Ireland to build their businesses around legal aid clients. The system further allows those who qualify for legal aid to choose their own legal representatives. Instead of being confined to assigned attorneys, individuals in Northern Ireland may use their legal aid funding to choose the best solicitors and barristers available.
Criminal legal aid in Northern Ireland often begins as soon as arrests are made. Any person being investigated by the police in connection with criminal charges is entitled to free legal advice regardless of income.[19] When holding individuals in custody, the Police Service of Northern Ireland (PSNI) is obligated to either reach out to the solicitor of the individual’s choice or provide a list of solicitors willing to assist.[20] All advice provided by a solicitor at a police station or holding center is free under the Police and Criminal Evidence Order of 1989.[21] Once charges are filed, criminal legal aid in Northern Ireland has no specified financial eligibility limits.[22] A solicitor may make an application for legal aid to the court on behalf of any client, regardless of means. In order for a defendant to receive criminal legal aid, the court must determine that the defendant’s means are such that it is “desirable in the interests of justice” that the defendant be granted legal aid. In practice, this scheme often allows individuals who do not live in poverty but cannot afford to pay high legal fees to retain top-notch solicitors and barristers free of charge.
Individuals in Northern Ireland can also seek free legal advice through Legal Advice and Assistance, commonly known as the “green form scheme.” The green form scheme traditionally covers preliminary advice - usually limited to two hours of work - given before an action proceeds to court.[23] This scheme allows solicitors to assess a client’s potential case without having to worry about doing unpaid work. Likewise, the scheme ensures that individuals who cannot pay for legal advice are entitled to a consultation with a solicitor and/or a barrister to determine whether they have a legal claim worth pursuing.
Legal aid in Northern Ireland is also available for civil cases. Unlike in the United States, the civil legal aid system in Northern Ireland does not rely on nonprofit organizations and pro bono volunteers. Civil legal aid in Northern Ireland covers all work involved in a civil case, including representation by a barrister and a solicitor.[24] Civil legal aid covers virtually all civil causes of action, with the exceptions of libel, slander, and proceedings before a Coroner’s Court. In order to qualify for civil legal aid, individuals must qualify financially and pass a “merits test,” which seeks to exclude frivolous lawsuits.[25] In practice, civil legal aid can be a major source of income for law firms in Northern Ireland. Unlike the example of CJA cases in the United States, solicitors and barristers are compensated at a reasonable market rate for all services rendered through trial.[26]
Conclusion
In conclusion, differences in rights to free legal services in the United States and United Kingdom have created distinct systems that seek to achieve similar goals. The United States functions primarily on an assignment system, where individuals are assigned either an attorney from the office of the public defender, or a pro bono volunteer. In the United Kingdom, individuals are given more freedom to use their legal aid funding to choose the best legal representation available. This system allows private law firms to gain significant income by representing clients who are entitled to legal aid funding.
Sean Donoghue is a staff member of Fordham International Law Journal Volume XLII. He spent the summer of 2018 working and studying in Northern Ireland.
This post is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] U.S. Const. amend. VI. .
[2] United States Department of Justice, Civil Legal Aid, https://www.justice.gov/atj/civil-legal-aid-101 (last visited Oct. 18, 2018).
[3] Id.
[4] Jon Robbins, Legal Aid in 21stCentury Britain,The Guardian(Mar. 11, 2009, 8:11 PM), https://www.theguardian.com/money/2009/mar/11/legal-aid-justice-gap
[5] See supra note 1
[6] Lisa D. Williams, Careers in Indigent Defenseat 3 (Harvard University Press, 2012) http://hls.harvard.edu/content/uploads/2008/07/2012pdguide.pdf
[7] Id.
[8] United States Courts,Criminal Justice Act: at 50 Years, a Landmark in the Right to Counsel, (Aug. 20, 2014), http://www.uscourts.gov/news/2014/08/20/criminal-justice-act-50-years-landmark-right-counsel
[9] United States Courts, CJA Pay Chart (last visited Oct. 18, 2018), http://www.insd.uscourts.gov/sites/insd/files/CJA%20Pay%20Chart.pdf
[10] Externship class discussion with Professor Martin regarding CJA fees paid to Fordham Law Clinic
[11] Id.
[12] See supra note 2
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Northern Ireland Direct, Legal Aid Schemes, https://www.nidirect.gov.uk/articles/legal-aid (last visited Oct. 18, 2018).
[18] Id.
[19] Id.
[20] Wilson Nesbitt Solicitors, Arrest and Detention in Northern Ireland, https://www.wilson-nesbitt.com/our-services/services-for-individuals/criminal/arrest-and-detention-in-northern-ireland/ (last visited Oct. 18, 2018).
[21] Id.
[22] Id.
[23] See supra note 17.
[24] Id.
[25] Id.
[26] Statutory Rules of Northern Ireland, The Civil Legal Services Order, at 11-35 (2015) (last visited Oct. 18, 2018) http://www.legislation.gov.uk/nisr/2015/201/pdfs/nisr_20150201_en.pdf