Rosemary Hunter and Ann Genovese

The Australian legal aid system is a ‘mixed’ system, comprising salaried legal aid services, private practitioners, and Community Legal Centres (CLCs). The functions of these three types of service providers overlap to an extent, but are also differentiated. For example, while both salaried services and private practitioners perform casework, the former also provide advice and duty solicitor services. CLCs also do advice and referral work, as well as playing a more systemic role in community legal education and law reform activities. Individual CLCs undertake varying amounts of casework, generally catering for people who are not eligible for legal aid but who are unable to afford their own legal representation.

Funding arrangements for legal aid have undergone dramatic changes since the advent of the conservative Coalition government in March 1996. Previously, State and federal governments contributed approximately equal amounts to each State’s legal aid budget, with that budget administered by the State’s Legal Aid Commission, according to locally-established priorities. The Coalition government introduced two major departures from this arrangement. First, it announced a more than 20% reduction in Commonwealth legal aid spending to be implemented over a five year period. Secondly, it sought to renegotiate agreements with the State Legal Aid Commissions to ensure that federal money should only be spent on federal matters, while the States would be wholly responsible for funding State matters. In the Australian constitutional system, State matters include most criminal cases, domestic violence orders, and civil proceedings at common law. The major federal jurisdiction covered by legal aid is family law, together with a limited category of Commonwealth crimes (eg. drug importation, defrauding the Commonwealth), and judicial review proceedings against Commonwealth administrative decisions (eg. migration, social security). For federal matters, the Commonwealth further imposed a set of restrictive national guidelines governing eligibility for legal aid, which came into effect on 1 July 1997. For example in family law, applicants must now pass a means test and a merits test, their case must fall within the guidelines for the types of matters in which assistance will be granted, and each case is subject to an overall spending cap of $10,000. The merits test has three facets: the case must have reasonable prospects of success, it must be one in which an "ordinarily prudent self-funding litigant" would risk his or her funds in proceedings, and the likely benefit to the applicant must justify the spending of limited public legal aid funds. In a recent speech, the federal Attorney-General, Daryl Williams, stated that there would be no foreseeable increase in Commonwealth legal aid funding, and Legal Aid Commissions would simply have to learn to do more with less.

As noted, Australian Legal Aid Commissions have so far engaged in few alternative delivery initiatives, either prior to or in the face of the most recent funding constraints. The most notable experiments have been two pilot projects in franchising and contracting legal services, conducted in Victoria and Queensland respectively. Both of these pilots concerned criminal law work. The Victorian pilot delegated to selected firms the power to assess clients’ eligibility for legal aid, and to undertake their subsequent representation, in summary criminal cases. Participating firms were required to meet general practice management standards, but assessment of ‘quality’ under the pilot was limited to firms’ ability to apply accurately the eligibility guidelines. There was no monitoring of the standard of representation work performed, either prior to or during the franchise period.

The Queensland pilot involved firms tendering for blocks of trials and sentences in more serious criminal cases. Selection criteria included the implementation of practice and case management standards. The pilot was evaluated by comparing conventionally-assigned and contracted cases in terms of outcomes, client satisfaction and cost. In addition, ‘quality’ audits were conducted on a sample of contracted cases, although no comparison with conventionally-assigned cases was available. The audits employed a checklist of 22 required procedural items, similar to the transaction criteria employed by the Legal Aid Board in the U.K. as part of its franchising specifications (although apparently in reduced form). The results of the evaluation showed no difference in case outcomes between the two categories of cases, and no perception of difference on the part of clients. The authors of the evaluation considered that: "The results of the client survey raise a question about the value of case and practice management standards. Theoretically, clients should have experienced a better service with tender firms because of the tighter quality controls." But they conceded that "[c]lients may not be able to perceive an improved service given the complexity of legal processes and legal language", and concluded that the identification of procedural omissions through case management audits could at least help firms to improve their services, while suggesting that auditing should also include some form of qualitative assessment. In a subsequent conference paper, one of the authors was more critical, arguing that ‘quality’ was almost impossible to assess using broad, tick-a-box measures, and that as a means of quality assurance, the system adopted in the pilot simply did not work. Yet any better (more detailed) system would further increase the transaction costs of the scheme, which already considerably outweighed the modest cost savings achieved from contracting.

For whatever reason, neither the Victorian or Queensland pilots have been followed up with any wider scale introduction of franchising or contracting, and there have been no equivalent experiments in family law. Some of the Commissions are proceeding with preferred supplier schemes as a way of reducing administrative costs, in some cases incorporating elements of quality assurance. Otherwise, they are coping with funding constraints by holding down the level of payments to private solicitors, imposing absolute limits on payments for stages prior to hearing (regardless of the actual amount of work performed), and exercising their discretion to refuse otherwise eligible applications when the coffers run low. These measures might raise some concerns about the quality of service provided to legal aid recipients. There is anecdotal evidence that senior practitioners, and some firms, are abandoning legal aid work because it is uneconomic, leaving the field to fewer, less experienced practitioners, although there is as yet no systematic data to back this up. On the other hand, if the choice in a cost-cutting climate is between some form of legal representation and none at all, can we afford to be too fussy about the quality of that representation?

Legal aid funding bodies have not taken up Jeff Giddings’ suggestion that they should monitor the quality of legal aid services as they currently exist, without connecting the question of quality to any new delivery systems. Giddings points out that the issue of quality has been left within the domain of the legal profession, and it has been simply assumed that lawyers "would provide a quality service, both to legal aid and paying clients". Giddings implies that this method is an insufficient guarantor of quality, although he cites no evidence as to the actual quality of services currently provided. Our research directly addresses this question. Rather than attempting to measure services against any absolute threshold or standard, however, we are taking a comparative approach, picking up the suggestion in the Commonwealth funding guidelines that legal aid services should be comparable to those provided to "the ordinarily prudent self-funding litigant". Our findings, in turn, will provide a benchmark for any future standard-setting or quality assessment process.

Moreover, the fact that the study is occurring in the absence of any mandated quality assurance scheme closes off some options for research and opens others. Most importantly, we do not have ready access to solicitors’ files for the purposes, for example, of deploying transaction criteria. We have to persuade solicitors to participate in the study, and then persuade their clients to let us view their files, with all the attendant problems of response rates and refusals. Hence, it would be imprudent for us make analysis of files the central element of our research. On the other hand, we can (practically and speculatively) explore solicitors’ existing understandings of quality and the derivation of those understandings. We can investigate the ‘culture’ of family law and how it operates as a source of quality standards. It should be stressed that in doing so we are not intending to support the traditional ideal of professional self-regulation. Rather, we are interested in "the way in which professionals understand their day-to-day activities", in order to discover (a) how family law solicitors perceive the issue of quality of legal services and whether there is any consensus or homogeneity of views among them, (b) whether solicitors’ understandings of quality cover all the aspects of quality which policy-makers and legal aid funders might wish to assure, and (c) how any desired change in solicitors’ views of quality might be brought about.

The overall aim of our study is to compare the kinds of services received by legal aid clients with those received by self-funded clients in family law. Within the legal aid group, further comparisons will be made between services provided by the salaried and private sectors. The study is being conducted across four States: New South Wales, Victoria, Queensland and South Australia. It has two parts, the first of which has been completed, and the second of which is in the data gathering stage.

The first part involved a large-scale profiling of clients and cases handled by different casework service providers in family law, including Community Legal Centres. The profiling research was entirely file-based, with data from in-house, private solicitor and CLC files closed during the 1997-98 financial year being cross-checked against and supplemented by the findings from a sample of Family Court files closed in May-June 1998. The main purpose of the profiling exercise was to identify areas of common ground between the different service-providers, so that we could be sure we were making fair and legitimate comparisons in the second part of the study. As a result of the profiling research, for example, we confirmed that CLCs were doing qualitatively different work on different kinds of cases from the other service providers, and so we have decided not to include them in the second part. Further, as a consequence of the legal aid guidelines, only a small proportion of legal aid cases include proceedings for property division. Thus in order to ensure comparability between legally-aided and self-funded cases, we are focusing the second part of the study on children’s matters (applications for residence and/or contact) and excluding cases concerning only property division. In addition, we discovered considerable variability between different Registries of the Family Court, in terms of local client demographics, case characteristics, methods of case disposition and levels of delay. Hence for the second part we have constructed cluster samples around each Registry, in order to take account of these variations.

In addition to defining an area of common ground between the work undertaken by in-house solicitors, private solicitors for legal aid clients, and private solicitors for self-funding clients, the profiling exercise yielded a wealth of detail about family law cases, including typical dispute resolution processes, use of courts and out of court resolution methods, case durations, litigant incomes, incidence of domestic violence allegations and their impact on case processing, incidence of self-representing litigants, differences between legally-aided and self-funded cases, and differences between salaried and private solicitors’ legal aid cases. For example, legal aid cases were resolved more quickly than self-funded cases, but legal aid cases were more likely to go to a hearing while self-funded cases were more likely to be resolved by a negotiated settlement. A higher proportion of private solicitors’ legally-aided cases than of in-house cases were resolved out of court, but in-house cases were again resolved more quickly. At the same time, a higher proportion of in-house than of private solicitors’ legally-aided cases remained unresolved due to the client’s legal aid grant being terminated, or the client losing contact. We also tested for differences between law firms in different geographical and socio-economic areas, and firms doing different mixes of self-funded and legally-aided family law work, but found very little variation. The only intriguing exception was a trend towards a greater quantity of services (more matters per case, more court attendances and forms of dispute resolution attempted, and cases more likely to proceed to advanced stages in the Family Court) provided by firms located in high-income areas. This is a factor to be tested further in the second part of the study, particularly in terms of identifying the "ordinary" (as opposed to wealthy) self-funding client.

Having determined the parameters of the second part of the study by reference to the findings of the profiling exercise, comparisons between cases are to be made in terms of services provided, seniority of service provider(s), time, cost, client satisfaction, and ‘quality’. The methodology involves a combination of file analysis, client surveys, and interviews with lawyers relating to both particular files and general issues. In order to derive quality criteria for this purpose, and in line with our interest in family law solicitors’ cultural understandings of quality, we conducted initial, exploratory consultations with a selection of experienced family law solicitors – from both salaried offices and private firms – in each of the four States. From these consultations we gained an idea of what was considered important, what was considered unimportant, and what was the subject of disagreement. We then included questions from all three of these areas in the data gathering instruments. Some matters were included in the coding form for the file analysis, some matters were included in the client survey, and some in the lawyer interview schedule, as appropriate, with overlaps between different instruments for cross-checking purposes. As noted above, data gathering for the second part of the study is still proceeding, so it is not possible at this stage to assess the effectiveness of our quality measures. The remainder of this paper will describe the initial consultation process, and analyse the cultural understandings of quality that emerged from it.

In their English pilot study, Sherr at. al. compared the results achieved by application of their transaction criteria to a group of files, with "peer review" of those files by a small, expert panel of practitioners from the relevant field. Time did not permit panel members to discuss their respective conceptions of ‘quality’, or to agree and define the quality standards to be applied. Rather, they were asked to apply their own, unarticulated definitions of quality to the files, and to express their evaluation of each file in terms of a possible marking range. The researchers found a significant degree of disagreement on particular aspects of quality between panel members, including direct contradictions. At best, peer reviewers were able to agree only on which files fell below and above a threshold level of competence. The researchers concluded that "a clearer articulation of criteria which could be objectively and consistently applied by practitioners would probably provide a better approach to quality assessment", although this would be a more costly exercise than having non-legally qualified auditors apply transaction criteria. Our approach involved inviting a larger group of "peers" to define quality standards for the purposes of the study. However we invited them to discuss quality in the abstract rather than with a focus on files, and we were concerned to distil criteria that could be used by the researchers rather than applied by practitioners.

We consulted with 25 family law practitioners, recruited by the ‘snowball’ method via members of the project’s Steering Committee. Twelve were in private practice, 11 were from Legal Aid Commission in-house family law practices, and two were from a women’s legal service (a specialist CLC), included because of their role in referring clients to private practitioners. In Sydney, we held two focus groups, one composed of private practitioners from the NSW Law Society’s Family Law Committee, and one composed of Legal Aid solicitors, supplemented by a small number of individual interviews. Practitioners from the other three States were interviewed individually by telephone. Seven of the private practitioners did legal aid work, spending between 5% and 33% of their time on such work. However, three commented that the proportion of legal aid work undertaken had been much higher two years previously, adding to the anecdotal evidence regarding the withdrawal of experienced practitioners from legal aid.

The 25 solicitors had an average of 15 years’ experience in family law. This raises the possibility of skewed results arising from an atypical group. That is, the views of this group on quality in family law services may have differed considerably from the views of a more representative group including less experienced members. Firstly, however, it is difficult to tell how representative our group of consultants was, since general information about family law practitioners is not available. The only indication we have of a possible difference is the fact that some of the private practitioners doing legal aid work confined themselves to child representation rather than dealing with adult clients. Thus, they were effectively removed from the more usual concerns of legal aid practice, and this may have been reflected in their views of quality. Secondly, Goriely suggests that the "specialist" model of the good lawyer will tend to emphasise outcome measures in assessing the quality of legal services, with specialists being most concerned with creative use of the law to further the client’s interests. However, this was not the case with our consultants, who produced something of a mixture of Goriely’s "traditional" and "consumer" models. This may be related to the particular nature of family law, in which the notion of a good outcome is complex and notoriously difficult to define. This in turn points to the value of considering quality locally – in terms of the cultural values of lawyers working in a particular area rather than a grand theory of professionalism.

Thirdly, there may be particular value in confining consultations to experienced practitioners, depending on how understandings of quality are transmitted. If junior solicitors learn about quality from their more senior colleagues, then the views of the more experienced will be ‘representative’. Moreover, the community of family lawyers in each State (or metropolitan or regional area) is fairly small and cohesive. Practitioners tend to be well acquainted with most others working regularly in the field. There is a lot of court work, combined with a strong culture of negotiations, which means that practitioners are frequently in contact with each other, and hence develop a shared sense of professional norms. The major distinction in this respect, drawn by our focus group of private practitioners, was between solicitors who do a lot of family law work, and suburban and country practitioners who do the occasional family law case, and therefore are not so embedded in the culture. Finally, the best test of the representativeness of our consultants’ views will be the field test. Any disjunction between the views of our respondents and the larger group of solicitors participating in the main part of the study will emerge from the data now being collected.

Participants in the consultations were engaged in a discussion about quality in family law services by means of a small number of open-ended questions, with prompts if a particular issue was not mentioned in the course of the conversation. The questions were distilled from a reading of the quality literature, and designed to cover the four major aspects of quality identified by Sherr et. al., ie. structure, process, inputs and outputs. At the same time, we were concerned to capture as far as possible the participants’ own understandings, priorities and attitudes, without pre-empting the language or categories they might use. They were not shown the question sheet either before or during the discussion, and the order of questions was adapted in each case to follow the flow of the conversation. The questions were:

1. How do you assess a good lawyer in family law? (prompts: in terms of your own work performance, lawyers you work with and/or oppose).
2. What is an adequate level of legal service? What more is required for a good level of legal service? Are there different levels of service given to different (eg. legal aid) clients? (prompts: time, cost, communication, outcomes).
3. As a lawyer, what do you think is expected of you, and by whom? (prompts: profession generally, opponents, clients, firm/LAC, court, any other).
4. What steps are necessary in order to ensure that a case runs smoothly? How would you describe good case management?
5. Do you rely on/refer to any articulated standards in relation to quality? (prompts: practising certificate, Law Society, legal complaints body, firm-based quality standards, any others).

An initial observation is that even the very broad categorisations of legal work embodied in our questions proved to be counter-intuitive. Our consultants simply did not think in those terms. For example, we expected that the question about ‘what is a good family lawyer’ would elicit general answers concerning skills and qualities, while the question about an adequate level of service would yield more detailed information about what should be provided to clients. However, respondents answered both of these questions in much the same way. In general, too, they found it difficult to specify an ‘adequate’ level of service, since they saw this as relative to the nature and size of the client’s problem rather than an absolute. They were also somewhat resistant to distinguishing between ‘adequate’ and ‘good’ service, perhaps shedding some light on the performance of Sherr et. al.’s peer reviewers noted above, and calling into question conceptions of a quality continuum. Interestingly, too, many of the respondents did not understand the case management question, although as discussed below, this did not mean they were ignorant of file maintenance procedures.

The structures within which these family lawyers were operating included a variety of possible sources of understandings of quality. Three of the four States (other than South Australia) have specialist accreditation schemes in family law. To be eligible for accreditation, solicitors must have practised law for at least five years full time, and must demonstrate "substantial" involvement in the relevant practice area during the three years immediately prior to application. Applicants must meet articulated performance standards in core areas of knowledge within the practice area, with the basic requirement being to demonstrate "sufficient knowledge of substantive law, procedure and practice, and sufficient skill, proficiency and experience in the area of practice...to justify the representation of special competence to the public and to the legal profession". Assessment varies from State to State. In all cases it includes a videotaped simulated client interview, a written exam, and references from three referees. NSW applicants must also complete specific tasks on a mock file; Victorian applicants complete an advice and drafting exercise; while Queensland applicants undergo a peer interview by a panel of assessors and submit a portfolio of their work. An Advisory Board composed largely of senior practitioners (plus an academic representative, and in NSW a community representative) develops standards and oversees the accreditation process in each practice area. An accredited specialist must be re-accredited annually. Seven (out of a possible 19) of our respondents were accredited family law specialists: three from the salaried sector and four from the private sector.

Secondly, some law firms have embraced TQM methods and quality accreditation under various commercial standards (eg. ISO 9001) and codes. These generally involve the adoption of procedures for practice management, sometimes including file management. Quality management relates to the structure within which services are provided, and operates on the basis that the quality of services can be indirectly assured by testing the quality of the system producing them, since the quality of the services themselves cannot be directly tested. Quality management initiatives in Australia have tended to involve the large, national firms, while smaller firms have seen less relevance in formal quality assurance.

Our respondents’ views on specialist accreditation and formal quality assurance were often dismissive, or even disparaging. Quality management procedures were generally considered a waste of time. When asked what their firms expected of them, most private solicitor respondents replied in terms of generating fees, bringing in work and promoting the firm, rather than following procedures. Only two respondents mentioned that their firm expected them to manage files competently. Furthermore, accreditation was identified as simply a marketing tool by some private practitioners who were accredited, and others who had chosen not to seek accreditation since they did not need to attract clients that way.

By far the most important conscious influence on respondents’ awareness of and adherence to quality standards was the community of family lawyers, expressed in responses such as "learning from my own and others’ mistakes", "learning from the community" or "peer pressure". In addition, the in-house lawyers mentioned regular practice meetings, and the use of each others’ experiences as a way of keeping themselves informed and improving their responses to situations through discussion and feedback. Within one in-house sub-community, too, accreditation was strongly encouraged, and more highly regarded as a means of enhancing practice standards, as was adherence to practice guidelines. Thus these quality mechanisms did not have an independent influence, but were influential because they had gained acceptance within the relevant (sub)community.

A further quality assurance mechanism functioning in the family law context is the Family Court. When asked what was expected of them by the court, the most frequently mentioned items were familiarity with the law, procedural knowledge and conformity, and honest and ethical dealings. The Court’s procedural requirements are of particular note. Fairly detailed, standardised forms are used for all applications, and these compel family lawyers to elicit certain kinds of information from their clients. Indeed, many of the items included in the Legal Aid Board’s transaction criteria are automatically required to be included on court forms. If applying the transaction criteria checklist to an Australian file, one would find much of the information in court documents. None of our respondents identified the Family Court’s requirements as a quality assurance mechanism, although one hinted at it in observing that "procedural knowledge is much less important than legal knowledge, because there are enough checks and balances in the system...to keep the case on the rails". The importance of the system is evidenced, however, by the fact that respondents consistently identified "well prepared documents", not just as something that the Court expected, but as one of the qualities of a good family lawyer, as part of the definition of an adequate level of service, and as an element of good case management. This suggests a need to consider the institutional context within which any proposed quality system is to be implemented. If courts have adopted case management methods or other procedural requirements, some aspects of quality might already be accounted for, although it would also be necessary to determine the extent to which the court’s requirements had been incorporated into the legal culture.

Not surprisingly given the identified major source of respondents’ understandings of quality, the most commonly mentioned quality criteria related to interactions with other family lawyers. The good family lawyer, according to our consultants, above all understands the culture of resolution. S/he attempts to resolve matters through negotiation, and in doing so is reasonable, balanced, flexible, honest, trustworthy and cooperative. If included in a quality assurance system, these attributes might be measured to some extent by an examination of lawyers’ files (particularly resolution attempts), but they also seem to require an element of peer assessment.

Other criteria relating to technical abilities and interactions with clients rated roughly equally in importance, commanding majority or substantial minority support.

As noted earlier, one aspect of technical skill that received considerable attention was the need for well prepared documents, and this is an element of quality that is imposed and monitored by the Family Court. Legal qualifications and knowledge were also listed frequently, but as a ‘given’ rather than as something that needed to be monitored or measured. Experience was listed equally often.

Sherr et. al. have been dismissive of ‘input’ measures such as qualifications and experience, arguing that while they are easily quantifiable, there is no evidence of any correlation between either measure and legal competence. Sherr’s experiment with initial client interviews carried out by lawyers with varying degrees of qualifications and experience provides powerful support for this position. He found no correlation between expert rating of interview performance and the length of time the interviewer had been in practice. Moreover, as between qualified and unqualified lawyers, and lawyers with less than five years and more than 10 years experience, clients perceived no differences, and expert raters found only marginal differences, while in each case the more qualified/experienced interviewers rated themselves more highly. This suggests that when lawyers extol the value of experience, they may in fact merely be reflecting increased self-confidence with their years in practice, which has no actual impact on the service they provide. On the other hand, our respondents tended to discuss experience in the context of enhanced strategic competence (knowing when to settle, making an assessment of how to proceed according to the features of the particular case), which was not covered by Sherr’s study. Given that objective measures of strategic decision-making are difficult to achieve, perhaps there is something to be said for experience as a possible proxy measure in this context.

The indicia that emerged from the consultations of how a good family lawyer relates to their clients were quite complex, and again possibly specific to family law. Other commentaries on the quality of legal aid services have referred to measures such as accomplishing clients’ goals or achieving the client’s objectives in obtaining legal representation. This is problematic if, for example (and leaving aside the question of whether he would satisfy the merits test), the client is an abusive father whose goal is to achieve unsupervised contact with his daughter. Our respondents stated first that the good lawyer should be empathic, insightful and patient, sensitive to the client’s needs, able to ask the right questions and to work with the client’s personal agenda (including how much time they need to reach a resolution). At the same time, the lawyer should draw boundaries rather than over-identify with the client and blindly follow unreasonable instructions. And in all cases the lawyer should manage the client’s expectations so that they match the expected outcome. This involves giving the client options but also exercising control and direction. In the words of one: "The solicitor should act as a conjurer [who] gives cards as options to the client, but knows in advance which card or option they need to, and will, take."

These views raise several questions for a system of quality assurance. First, are they views that the system wishes to endorse? If not, what approach to clients is considered more desirable? Who makes these decisions? And how could a different approach be implemented and enforced? If, on the other hand, the above indicia of quality are adopted, how can they be measured? Matters such as empathy, patience sensitivity, and giving options can only be assessed by clients themselves. Yet a client satisfaction survey would not be an entirely appropriate instrument for determining the extent to which the lawyer had managed the client’s expectations or steered them away from an unrealistic objective. Or perhaps a high quality service could be discerned if the client expressed themselves to be "somewhat dissatisfied" with the result!

We attempted to address some of these issues in the client survey, by asking clients whether their lawyer advised them as to the reasonableness of their initial expectations, whether their expectations changed after discussion with their lawyer, whether the lawyer made them feel they had some control over their case, whether their lawyer explained all of their options, and whether the result of the case was what they expected before they saw their lawyer, or was what their lawyer led them to expect. At the time of writing, preliminary results were available from 41 completed surveys, comprising 16 legal aid cases and 25 self-funded cases.

The average score on the first question was at the reasonable end of the scale, indicating either that we have surveyed a fairly reasonable group of clients, or that lawyers had managed their expectations very subtly! Correspondingly, only seven clients (17%) said their expectations had changed after discussions with their lawyer. More interesting in this respect was the fact that five clients said that their expectations had not been discussed. All of these were self-funded clients. The disjunction between the average scores on the last two questions provides more support for the possibility that lawyers are managing their clients’ expectations. Relating expectations and the result of the case might also prove to be a more useful way of exploring this issue than asking a bald question about reasonableness of expectations. The disjunction between the average scores for having all options explained and feeling in control is also in line with the approach advocated by our respondents. There was no statistical difference between legally-aided and self-funded cases on any of these questions. Nor would such a difference be expected, given the relative homogeneity of views on interactions with clients evident in our consultations (we did not have sufficient data to test for differences between salaried and private lawyers, however).

‘Output’ aspects of quality, such as time and case outcomes, were clearly not ‘top of mind’ issues, and were generally not mentioned spontaneously by our lawyer respondents. Their views on these aspects were elicited by means of specific prompts. In relation to time, there was a fairly even split between ‘relativists’ and ‘absolutists’. ‘Absolutists’ held that the less time spent on a matter the better for the parties, in terms of getting the matter settled, preventing further issues from arising, and keeping costs down. One respondent linked the time taken to the culture of resolution: less time spent on a case was an indicator of negotiation rather than court proceedings, which was better for everyone. On the other hand, ‘relativists’ insisted that the timing of a case was beyond the solicitor’s control, depending instead on the nature of the matter, the client’s position and personality, the other party’s behaviour, and possible court delays. This divergence of views calls into question the value of time per se as a quality measure, and also suggests that any imposition of time standards would be hotly contested by a significant proportion of family lawyers.

In relation to outcomes, there was no agreement whatsoever between our consultants. Responses to the question ‘what is a good outcome?’ included some that were client focused (a result not imposed on the client; keeping the client out of the court system; protecting the client’s emotional needs; orders reflect the client’s expectations as managed by the lawyer; the client understands the orders or decision reached), others that were family focused (a result that is best for the children; a result that accommodates the ongoing family dynamic) and a few that were lawyer focused (winning fairly; winning against a vexatious or violent other party). This diversity of views reinforces the point made earlier that outcomes are difficult to measure in family law. Further, they suggest that the monitoring of outcomes in this context may be pointless. Not only is there no agreement on what is a good outcome, neither is there any apparent basis for the development of a consensus on the issue, and fundamentally, nor is there agreement that the issue is relevant in assessing the service provided by a family lawyer.

As noted above, our respondents had some difficulty distinguishing between ‘adequate’ and ‘good’ legal services. Moreover, there was some disagreement between them as to whether particular items fell within the ‘adequate’ or ‘good’ category. There was no notion in their comments of anything like a ‘threshold’ level of competence, or a minimum standard below which no practitioner should fall. If anything, the differences they identified between ‘adequate’ and ‘good’ corresponded to something like Sherr et. al.’s distinction between ‘competence plus’ and ‘excellence’.

The most commonly mentioned elements of an ‘adequate’ service were full and skilful preparation of documents, and full discussions with the client, including getting instructions at each stage, listening to the client, giving sound advice whether the client wants to hear it or not, making sure the client understands the advice, and making sure the advice meets the long term needs of the family. Responding promptly to the client’s calls also rated fairly highly. The most commonly mentioned element of a ‘good’ service was "high level" communication with the client, including using plain English, explaining the system and its constraints, responding to the client "in total", being sensitive to issues of violence, gender, culture and race, and not rejecting abusive and disempowered clients. "High level" advocacy skills, and "high level" care with documents were also mentioned in this context. While one might wish to see plain English communication and sensitivity to issues of violence, gender, culture and race included in the ‘adequate’ category rather than being seen as ‘icing on the cake’, it is otherwise difficult to criticise these articulated standards. If the services identified as ‘adequate’ actually constitute the professional norms for family lawyers, then clients would appear to be in reasonably good hands. Of course, the question remains whether these are merely the aspirational statements of an elite group of professionals, or whether they are actually put into practice across the board. This is precisely what we are exploring in the remainder of our study, through the combination of client surveys and analysis of files.

Respondents were also directly questioned as to whether they thought different levels of service were provided to legally-aided and self-funding clients. The American literature suggests that legal aid services, and even services provided to private clients on moderate incomes, cannot be of the same quality as the "premium" services provided by corporate law firms, but must be set at a lower standard that maximises access to legal services. In the Australian family law context, it should be noted that private clients are not, by and large, in the corporate category. In our profiling study (which included a proportional representation of city, suburban and country firms in the four States), the mean annual before-tax income of self-funding clients was $38,600. This was slightly above average earnings at the time (around $30,000 p/a). However, only 17% of self-funding clients had annual incomes over $50,000, and none of these were women. The mean annual income of female self-funding clients was only $27,860. Thus, the service provided to the ‘ordinary’ self-funding family law client can be expected to be budget-conscious, rather than necessarily superior to the service provided to legal aid clients.

Respondents were generally in agreement in their descriptions of the services provided to legally-aided compared to self-funded clients, but they differed in their interpretations of the comparative situation. It was considered that legal aid clients tended to be more disadvantaged and to have more problems (eg. with literacy, drugs, alcohol, poverty) than self-funded clients, and therefore required extra time from their lawyers in order to receive the same level of service. The demographic information from the profiling study bore this out to an extent, showing that legal aid clients were significantly younger and far less likely to be homeowners than self-funded clients, and were also either reliant on social security payments or living on very low incomes. Interestingly, there were more notable demographic differences between legal aid clients handled by in-house practices and by private solicitors, with the former more likely to be overseas-born and from a non-English speaking background, to need an interpreter, to be Indigenous, and to have some form of physical, intellectual or psychiatric disability. The profiling exercise did not specifically gather data on alcohol, drug and literacy problems, but this information is being sought in the second part of the study, in order to test our consultants’ claims.

On the assumption that legal aid clients do require and receive more time from their lawyers, some respondents simply saw this as the provision of services of equal quality, while others perceived that legal aid clients thereby received a better service. A number maintained that the level of legal aid payments was such that it was becoming uneconomic for (some) private firms to continue to provide the level of service required by legal aid clients. In most instances this meant individuals or firms ceasing to take on legal aid work. In the words of one respondent, "my legal aid clients...need more time than Legal Aid pays. Financial pressures mean that I either have to put up a wall with my legal aid clients, which is not desirable, or otherwise not serve them at all". Respondents indicated that rather than reduce the quality of services to legal aid clients, practitioners were choosing to exit the system. As Giddings notes, private practitioners in Australia have always been less reliant on legal aid as a source of income than their UK counterparts, and so the exit option is a real one.

Within the legal aid group, some in-house solicitors argued that salaried legal aid services were superior to those provided by private practitioners, for a variety of reasons including more experienced lawyers, better able to deal with difficult cases, more likely to be forthright with clients, more efficient, and with greater advocacy skills because of constraints on briefing counsel. Salaried solicitors certainly appeared to share a particular legal aid philosophy, which emerged in response to the question of what legal aid bodies as their employers expected of them. A number answered in terms of implementing access to justice principles (meeting the special needs of clients, promoting the vision of the Legal Aid Commission), and/or working in a time- and cost-effective manner. Such considerations were not articulated by the private solicitors. One salaried solicitor also considered that "private lawyers expect legal aid lawyers to sweep up after them the cases that are too hard – that is, they have merit, but the client is difficult or objectionable". The demographic results of the profiling study provide some support for this last proposition, but the main part of the comparative study offers further opportunity to test for differences between in-house and private solicitor legal aid cases and services in these respects.

Our exploratory research on family lawyers’ understandings of quality yielded interesting insights into the dynamics and particularity of family law culture. The consultations suggest that experienced family lawyers at least are concerned to bring the client’s case to an objectively satisfactory resolution by negotiating honestly with the other lawyer, deploying technical knowledge and skills (in accordance with the Family Court’s requirements, where relevant), and managing the client’s expectations. There was, however, no consensus on how to judge the actual content of the resolution, or the time taken to reach it. These finding clearly proceed from the specific context of family law, and are not automatically generalisable to other practice areas. This points to the importance of considering quality within local settings, and raises interesting questions about how lawyers in other practice areas (eg. criminal law) might respond to our quality questions.

Our respondents set fairly high standards for the delivery of legal services in family law, for both self-funding and legal aid clients. As payments for legal aid work decline in real terms, family lawyers may choose to abandon legal aid work rather than compromise quality. In this (and other) respect(s), salaried legal aid services may have more to offer. The remainder of the study of legal aid services in family law will determine the extent to which these findings and predictions are borne out across the gamut of family law practice. The value of ‘alternative’ methods of measuring quality will also be tested.