Page 139 - Solving Housing Disputes

23. The role of lawyers in the HDS is unclear. On the one hand, it is said that
advocacy is not needed as the process is non-adversarial and inquisitorial. On
the other hand, it is said that lawyers “will have a significant role” to play in,
for example, drafting written representations, negotiating with the other side,
and advising clients as to the merits of their case. Given that it is recognised
that lawyers are necessary to assist with some parts of the case, it is not
understood how they can be safely dispensed with for other parts. If the
lawyer is needed to draft written representations, on what basis can it be said
that the client can adequately represent him/herself in a face to face interview?
Similarly, accepting that a lawyer is needed to advise a client on the merits of
her/her case seems to be tacit acceptance that the client needs someone, beside
the HDS officer, to inform him or her of his rights. If – as the report accepts
– a lawyer is needed on the outskirts of the HDS, it is not logical to argue that
a lawyer is not needed for the most important part of the process, namely
proceedings within the HDS. It is no use providing a client with advice on
his case on the periphery if he/she cannot then go on and present that case.

24. It is also wholly unclear in what capacity the panel lawyers will be acting.
The report states that in addition to the panel lawyers, clients would be “free
to take legal advice from their own choice of lawyer” (para 2.70).
Presumably, therefore, this means that the panel lawyer is not there to
represent the client (as to suggest that public funding might be available for
two lawyers would in our view be something of a fantasy). It is not explained
what duties will be owed (and to whom) by this panel lawyer, or where their
obligations lie in the event of a conflict of interest between, for example, the
HDS and the individual. It is not stated whether communications between the
panel lawyer and the landlord/tenant will be privileged. These are not minor
concerns. The right of a person to seek legal advice, knowing that what they
tell their lawyer will remain confidential and that the lawyer is obliged to act
in their best interests, is a sacrosanct one which is fundamental to the rule of
law.

25. In our view, given the reluctance to provide public funding for lawyers in the
system as it exists, it is wholly unrealistic to suggest that there could be the
political will to pay for lawyers in a system where lawyers play only an
“advisory” role. To go further and suggest that they may be paid more than
under the current system is fanciful.

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