Justice ‘on the cheap’ could land solicitors in the dock

In April 2017, many hundreds of criminal legal aid practitioners signed up to the new Crime Legal Aid Contract.

On 1 June 2017, a Law Society Practice Note clarified that these firms may refuse any contract work (save for duty solicitor matters) if taking it on would threaten the viability of the firm, or is not paid enough to be able to properly represent the client, saying:-

'Whilst potential clients seeking criminal defence services must be fully and properly informed of the availability and eligibility criterion of the legal aid scheme, there is no mandatory obligation that requires a contract holder to offer to undertake work under a legal aid scheme provided that instructions are rejected on an appropriate basis...”

The Practice Note also recognises that payment for criminal legal aid work has not been increased for 19 years, during which time persistent cuts and the introduction of fixed fees have created a situation where sometimes work cannot be carried out to the requisite professional standards – at least, not without undermining the financial stability of the firm providing it. For legal aid campaigners, this point is not a revelation.

By distinguishing between duty work and non-duty work, this Practice Note also goes further than simply saying the new Crime Contract as a whole must only be entered into cautiously. Instead it states that the decision to take on each new matter via legal aid should now be considered on its merits:-

'It is a matter for firms and their compliance officers to establish the nature of the work that is not properly remunerated under the contract, and it is likely that such assessments will vary according to location and nature of the firm concerned and will need to be revisited at least annually or whenever the contract is varied,'

James Parry, chair of the Society's criminal law committee, said: 'The reduction in funding for criminal legal aid work has created a situation where many solicitors are increasingly required to undertake work that is unremunerated or carried out at a loss. This presents a serious tension between continuing to undertake legally aided work and obligations to provide a proper standard of service to their clients or to conduct business in a financially sustainable manner'.  Mr Parry predicted that firms will now ‘cherry pick’ cases, essentially depending on an assessment of the effort required versus likely remuneration.

The Practice Note also reminds solicitors of their SRA principles of: providing a proper standard of work, maintaining the trust of the public in the provision of legal services, and running a business effectively and in accordance with proper governance and sound financial and risk management principles.

This Practice Note means that for the practitioner, the decision to take on a legal aid matter at all now takes on a regulatory/compliance element. Unfortunately, the likely litigator fee involves an assessment of factors that have not yet happened at the point when a case is typically taken on. This is because the level of payment involves a series of determining factors, such as:-

(1) how many pages of evidence the Prosecution choose to rely on,

(2) when the Prosecution choose to serve those pages, and in what form,

(3) whether the Prosecution drop or amend the charges prior to trial,

(4) whether the client decides to plead guilty, if and when that Prosecution evidence, whenever it is served and considered, and

(5) assuming there is eventually a trial, how long that trial lasts.

For every criminal legal aid lawyer, there is a real danger of misjudging what looked like a potentially lucrative legal aid case early on, and being lumbered with a complex, high maintenance but low page count matter. Were these misjudgments duplicated across a small department it could easily create very many hours of dreaded ‘dead time’, for no resulting cash flow.

If firms are to carry out proper risk assessments to avoid this scenario, they might have to wait until much later in the case (once page count and the likelihood of an effective trial are known) before deciding whether to accept the case on legal aid. However, the commercial danger is of course that another firm might have signed the client up on legal aid in the interim, no doubt encouraged by a Judge who wants the defendant properly represented throughout. Even if the client is prepared to wait for his firm of choice, it would take a courageous advocate to say “Your Honour, we are not committing to a legal aid application in this case until we know the Prosecution page count”. Although the Practice Note infers that such a submission might be perfectly responsible.

Overall, this Practice Note is welcome in the sense that it reminds Practitioners to have the confidence to say “having a legal aid contract does not oblige us to take on every eligible case via legal aid”.  As Mr Parry observes, this will of course lead to some of the lower-paid matters involving facing yet more difficulties in getting free representation. This will also disproportionately affect vulnerable clients, because there is simply no scope for a fee uplift in representing them. In terms of pure justice, declining these cases is a problem. But in terms of good regulatory sense, it is par for the course.  Beware of doing justice 'on the cheap'. It could just land you in the dock.