What older people think about legal practitioners
Research conducted in Queensland in relation to legal service provision to older people concluded that key issues for older clientele are that the legal practitioner effectively communicates with them and demonstrates legal skill.
Participants valued legal practitioners who were good communicators generally and who could communicate about legal terms specifically. For several participants the fact that their legal practitioner came to their home to provide advice on legal matters was important. Overall, the attributes of a good legal practitioner were thought to be: personal qualities of friendliness and warmth, good communication skills, respectful attitudes, expertise that demonstrated value for money and reasonable costs that were known beforehand.98
It has been noted, however, that there may be some barriers preventing best practice service provision to older people.
Effective communication and sensitivity to complex client situations may be hampered by ageist attitudes and organisational pressures arising from appropriate allocations of time to clients, cost effectiveness and management of workloads.99
Legal practitioners clearly articulated during the course of the Queensland study that the time required to explain legal advice to older people was a problem. However, there was also a systemic barrier raised by many about the need for legal education, in and out of law schools, that focused on legislation that is relevant to service provision to older people: “Current training needs in relation to the legislation were identified by approximately half of the [legal practitioner] respondents.”100
The Queensland research revealed that when the older people they sampled did access legal services, the majority had positive experiences, reporting kindness and a willingness to assist as features of good practice. There were no unequivocally positive submissions to this study made by older people about legal practitioners. The following two submissions, however, had some favourable comments regarding legal service providers.
After my mother had had a stroke she wanted to find out whether she could give us Power of Attorney and the lawyer actually made the journey up to Springwood because he couldn't trust us and he handled my father's affairs — and he was handling my mother's. He was wonderful — he was representing her, not us, and he said 'I'll make my own opinion.' He went and had a cup of coffee and came back to see her and she was non compos mentis… he explained the situation, he gave us Power of Attorney over somebody who mightn't have understood.101
I've found that if you've lived in the area a fair while and you've had dealings with lawyers and you know them over the years, most of them would give you a pretty reasonable deal ...102
Legal service providers consulted during this study provided some insight into the preferred modes of service delivery for older people.
A lot of my stuff, I do on the phone. And I think that's a difference between the areas, because where I cover they're more inclined to do that. Some of them still want face-to-face… the older ones prefer face-to-face.103
…over the years, my older clients really stand out in my memory because of extra attention they've required such as home visits but they haven't formed the majority of my clients. We also provide phone information and advice where we usually wouldn't but do so because of mobility issues associated with older/frail people. Older people generally do take a little more time, patience and careful communication.104
The Queensland research team reported that negative experiences of older people in relation to legal practitioners included: “…communication problems, a lack of interest in older people's specific situations, negative public perceptions of the legal profession and excessive costs…”105
These negative reports were echoed by a number of older people making submissions to the Law and Justice Foundation. However, it should be noted that many older people contacting the Foundation did so after a public call for submissions from people experiencing legal problems. This influx of poor reports then, were from a pool of self-selecting participants with, on occasion, a series of legal problems, including problems with lawyers.
Many of the older individuals making submissions for this project commented on communication difficulties when it came to dealing with lawyers.
I was involved in a car accident and I think that my solicitor misrepresented my case and did not keep me adequately informed. The hearing went ahead without my knowledge.106
One participant in the Older Men: New Ideas focus group said that one of the reasons why he does not consult lawyers is the legal language used, which is full of jargon. He did not understand why they had to use this language, which made things appear more complex.107
Some callers indicated that solicitors did not take the time to explain matters fully to them.
I was injured at work. My solicitor in Bankstown got compensation for me for pain and suffering, and gave me a cheque after deducting his fees. Recently, he told me that I might have to pay it back. I've now left that solicitor, but I want to know why I may have to pay it back.108
Neglecting to take the time to fully detail the various options for substitute decision-making can have a severe effect on those older people on fixed small incomes.
I live in a hostel, receive an invalid pension. I wanted to know the difference between 'living wills', wills and powers of attorney. I had a will and a power of attorney set up some time ago. I am really upset as I think I have been given the wrong information by my lawyer. I spend nearly all of my pension on board at the hostel. I am scared that I will have to see a lawyer again and fork out more money for a living will.109
The pensioner had saved money to invest in legal assistance and the prospect of having to repeat the experience because she was possibly given incomplete advice was difficult for her to contemplate.
Some callers reported that accessibility to their legal practitioner for the purpose of communication was a problem.
It's also about availability. Like you ring up and you might have been waiting with your case for say six months or whatever, every time you ring up they are either in Court or not there. So you can't ring up and ask them questions, you can't talk to them about anything.110
In her guide to Communication Skills for Working with Elders, Barbara Dreher discusses the inappropriateness of conducting business-like interviews with older people, stating that such interviews yield limited responses, and will often result in important information being missed. The importance of adopting an empathetic approach is emphasised, so that a relationship of trust is established. This will result in a higher quality of information exchanged, and ultimately more effective advocacy on behalf of the older client.111
Dreher also stresses the importance of not attempting to rush an older person into making a decision or providing instructions.112 Older people need more time to process information and make decisions than younger people, and this needs to be factored into the provision of legal advice and assistance for older people.
Whether it is assumed or experienced, many older people operate under the belief that access to quality legal services are beyond their incomes.
The attitude of older people is that legal avenues of redress will be too costly, even if it is affordable, and will not change anything in any case. Access to lawyers is not always the first thing they think of.113
I spoke to [someone] at the South Australian Law Society about some sort of compensation and she referred me to lawyers who wrote to me and quoted me prices that I could not afford. I am on an age pension — I am a divorced-ex wife of a Vietnam veteran.114
I am reluctant to visit the solicitor in town because they all charge too much. I have been over-charged in the past.115
Three years ago I went through a property settlement and had high legal fees that I am still paying. The bill was not properly itemised and difficult to understand.116
I am confident about appearing in court and have been around solicitors enough to know what to do. However, of all the people I know who have been involved in this fraud, I am the only one pursuing it through the courts. The others are inhibited by the cost of solicitors and the complexity of the law.117
Many submissions noted the apparent lack of value for money.
And the thing I find with solicitors is that you pay out an awful lot of money to go and see them but you are still doing all the ground work… you will get these letters saying, well we need this so can you go and get it sort of thing. I mean what are you paying them for? Once you are half way through a court case or whatever it may be, that means you are going to have to go somewhere else and start the same thing all over again and go through that power struggle with another group. So they have got you over a barrel no matter what you do, you've got to fork out the money if you can afford it.118
This dissatisfaction with the lawyer's reliance upon the client to 'do the groundwork' may be an indication of a misunderstanding of the lawyer's role, which may contribute to negative public perceptions of lawyers. Alternatively, it may also present a basis for suggesting that lawyers who provide services to older people need to provide a greater level of servicing and assistance, and need to bring a particular specialist service for such clients.
Other participants reported that solicitor's fees were misrepresented to them and that the amount was severely underestimated in the initial advice they received.
My solicitor told me that his fees would be approximately $2000, but he charged me $4000 in the end. Combined with my doctors' fees, this leaves me with practically nothing, I came out of the episode with almost nothing because of all the bills I have to pay.119
My lawyer was the family solicitor and told me that he would take the case on a pro bono basis. The lawyer said they would sort it out after the case was over but still charged me $14 000 last year and I recently received a bill for $7,000 in court fees. The sheriff came to our home and threatened to take my property to the value of $7,000. My wife and I were really shaken up by the experience and so we paid the bill.120
Some submissions revealed an opinion of lawyers as disreputable, based on a perceived compulsion to accumulate money. A participant in the Older Men: New Ideas focus group said that he would not consult lawyers because of the cost. There was general consensus within the group that they believed that legal costs associated with lawyers and courts were not affordable for them. One participant recounted seeing in the news a lawyer who received $5,000 per day in court, and was put off by such exorbitant fees. Another focus group participant said that he did not want to see lawyers because they were just after as much money as they could get out of him (the participant), and they would devise reasons for him to go back to them so as to pay more fees.121
Well I only used [a lawyer] once, a divorce lawyer…I got an el'cheapo one and he was hopeless. I would end up losing everything and somebody put me onto a Barrister in Sydney and he was glorious. I got half of everything. Otherwise, I would've lost the lot with this fella. He said, 'there's nothing we can do you've gotta pay, you've gotta give over.' He was only just out of law school.122
Many submissions by older individuals addressed the issue of no-win no-fee arrangements, proffered by lawyers to those without the immediate funds to pay for legal assistance. Usually, because of the risk to the lawyer taking on the case, they will not do so unless there is a good chance of success and charge more to cover their risk.
One caller also felt that large, powerful defendants are apt to discourage lawyers from entering into no-win no-fee arrangements.
The way I see it, is this. If you have the money you really don't have a problem. But, if you are in my position where I have no money and have a very good case against the Northern Territory government, then forget it — no one is prepared to take government on in a no-win, no-pay situation.123
My solicitor lacked sincerity in his no-win no-fee offer. I approached a number of solicitors. The first said it would be an easy case, and he would do it on a no-win no-fee basis. The solicitor asked for $2,500 to file the claim. He spoke with the other side's solicitors who said they needed more information. Then he asked me for another $3,000 to negotiate with the other side. I sacked him.124
The consultation with Caxton Legal Centre in Queensland revealed that no-win no-fee arrangements pose real access to justice issues for clients with any alternative options.
Perceived lack of interest
In no-win, no-pay arrangements, it might not be clear to a person entering into this that the costs if they win will be higher than ordinary legal costs because lawyers need to cover their risks of losing. However, poor people might have no choice but to enter into such an arrangement to get legal help. If costs are awarded, the contract might still allow the lawyers to take more of the principal awarded. But most matters settle and anything can be arranged.125
I had a public liability, personal injury case. The no-win no-fee contract I entered into with my solicitor soured when I only received 20 per cent of what was awarded by the judge.126
The Queensland research127 into legal service provision to older people also indicated that older people felt lawyers were not interested in their problems. Submissions made by older people to this project resonated with that research.
We went to see a firm of solicitors who 'didn't show much interest'. The solicitor we saw told us that we could apply to the Victims Compensation Tribunal, but only if our damages were greater than $7,000. She suggested we should go to Orange for psychological tests. We didn't hear any more about it and went to see our local member. He suggested we see another solicitor. We returned to the original firm and were told the solicitor we had first seen had gone overseas and their papers could not be found. Eventually when the solicitors found the papers, they said there was nothing worth doing. We let the matter lapse and did not go to Orange for psychological tests, because we heard no more.128
Much of the criticism from callers related to lawyers being more interested in money than the clients.
A big problem is the tendency of lawyers to evince interest only in matters that are likely to produce big money.129
My father had a legal problem. But the lawyers showed no interest in it because they lacked expertise and there was little money in it for them. I believe that the solicitors were not interested in the case, only in their own profit from it, and do not have expert knowledge in dementia, abuse issues or power of attorney. However, we are reluctant to change solicitors now because we have already run up debts of $10,000.130