Official Response to changes proposed to Legal Aid System

OFFICIAL STATEMENT ON BEHALF OF Howards Solicitors LIMITED IN RESPONSE TO RECENT CHANGES, AS WELL AS THOSE TO COME, WITHIN THE JUDICIAL SYSTEM

People new to power are always tempted to introduce changes, often incorporating added bureaucracy, for what they consider to be the greater good. Time and experience often proves that such an approach was naive. We live in one of the most democratically advanced and civilised societies and most of us recognise that our elected officials will effect change to reflect our constantly evolving moral ideals.

Regrettably, I believe, that in the last 15 to 20 years we have experienced an emergence of politicians and lawmakers whose self-serving interests are promoted above and beyond anything else.

We have perhaps the third consecutive political leadership who seem to stand for very little other than popularity. This, whilst obviously a criticism, is perhaps unfairly directed at those ill-prepared for political leadership, those naive and lacking in real-life experience. Of course politicians, as I said above, have had to effect change based on the ever-changing wishes of the civilian yet there is a huge difference between effecting such change and reacting to newspaper headlines which are, more often than not, sensationalised for the sake of the story.

Consequently we lawyers are an easy target. Nobody likes us until such time as they need us and the perception is that we all (whether state funded or otherwise) earn far too much money. Personal injury lawyers are seen as an ambulance-chasing scourge upon society whose only contribution to society is to cause ever-increasing insurance premium hikes. Whilst criminal defence lawyers are judged in the same light as the clients they represent, the common presumption being that all clients of all criminal lawyers are guilty. I doubt there is any single criminal defence lawyer who can come close to accurately guesstimating the number of times he/she has been asked “how do you represent a person who you know is guilty?” This question alone signifies the extent of the lay person’s ignorance of the judicial system and the roles of those who work within it.

It seems to me therefore that the biggest problem we face is one of perception and reputation. I am not convinced that there is actually anything the profession can do to change this.

So what can the profession do to arrest the rapidly accelerating decimation of the legal justice system in this country as we know and of which I, until recently, have been so fiercely proud.

I do not profess to have all the answers but I think I have some good ideas and I deal with them below whilst addressing some of the very well made points argued by others recently in the various forums and blogs I have read:

1. Direct action

I have seen various comments made by members of the Bar on this very issue. I have no idea whether a strike, in some form or another, is something which can legitimately be done by the Bar and its members. I, as a solicitor, attended several meetings, several years ago, with representatives of the Law Society, when such issues were discussed prior to the proposed introduction of best value tendering by the previous government. Those who claimed to know, asserted that a strike was not a lawful option and that any collective agreement regarding whether or not to enter a bid (the idea of course being that if no providers submitted a bid then the tender process would fail as a result) would breach competition law. I still do not understand the logic behind these 2 assertions by the Law Society, if anybody does please advise. However, what I do know (and this has been demonstrated more recently as well when the MOJ attempted to introduce full sitting courts on Saturdays and Sundays) is that whilst the majority of the profession may agree to stand together, there will always be a small number of law firms and solicitors who will break ranks to serve their own commercial interests. I cannot speak for the Bar but my experience is that the Bar Council is much more likely to experience solidarity amongst its members. In any event, and notwithstanding the above, I am not sure direct action is necessarily the way forward because direct action is normally something undertaken to illicit support of the public and, for the reasons I say above, I do not think we are ever likely to benefit from any widespread public sympathy.

2. Arguments and Negotiations

This will always be the first step, and the most appropriate way, to initially engage with those attempting to effect change to which you are opposed. So what are the arguments:
 
a. Recruitment

I have heard, ever since franchising was first introduced approximately 15 years ago, people arguing that such restrictions on fees will inevitably lead to a dwindling number of those entering the profession to the point where it will no longer be possible to recruit into the field of law. With respect this is nonsense and has been demonstrated to be so. There is no shortage of those who continue to seek work within publically funded areas of law. Whilst the level of remuneration for such work has certainly reduced there are still plenty of bright, young men and women entering such fields within the profession and that is evidenced, not through any statistics I can quote, but from my own experience on a day-to-day basis in the criminal courts around the country.

Even if the argument was valid it would fail to achieve its objective because the government want to see a reduction in the number of lawyers making their living from publicly funded work – this is the whole point!

Unfortunately, and it does pain me to admit it, there are too many criminal lawyers. The government have done everything within their power to reduce the work available to us in recent years which has, unfortunately, left a surplus of advocates. The increase in cautions and fixed penalties, along with the ever-increasing restrictions on what offences legal aid is actually available for, has impacted on our work levels. In addition, the Crown are, for reasons I fail to understand, adhering to the government’s requirement to charge everything as low as possible in order to place offences into categories which either do not merit the granting of legal aid in the interests of justice, fall in to categories attracting a lower standard fee and/or to avoid the expense of a trial in the Crown Court.

Of course, things will change because there will come a point, and it is already happening, when the media gets wind of the ridiculous number of out of court disposals, etc, and start to report on it. There is therefore a strong argument to retain current advocate numbers to cope with the increase in work which will ultimately flow when there is an about-turn on charging policy which is inevitable and, in my submission, likely to occur sooner rather than later.

b. Appropriate Income Levels

I note the points made by various commentators recently, not least Marc Brown (11th March 2013 – Criminal Bar Association). These points are well made but again I stress – who cares? The public certainly don’t because they are convinced that we are all fat cats and even if we educate them about the income of solicitors and barristers working within the publically funded arena they will still focus on the few whose earnings are at the very top of the scale and the fact that there are very few of us who actually earn less than the average wage across the country.

Lay members of the public do not concern themselves with the fact that we study for at least 4 years and undertake up to 2 years training before qualifying, members of the public do not concern themselves that criminal defence lawyers deal, on a day-to-day basis, often unaccompanied, with some of the most dangerous people in our society, the same members of the public do not concern themselves with the fact that legal aid lawyers are often dealing with clients who have psychological difficulties, drug addictions and whose behaviour may be made more erratic than normal by virtue of the extreme circumstances they find themselves in at the very time when they need the assistance of their lawyer, the same members of the public do not concern themselves with the sleepless nights and the weekends worked by family lawyers who carry the burden and responsibility of whether their client ever gets to see their children again.

Whilst I think it is a perfectly proper comparison, to compare our earnings with those of GPs, is a comparison completely lost on the general public whose support we would otherwise wish to garner.

I recently tweeted how a defence lawyer would be expected to attend a police station, in the middle of the night, to represent somebody accused of murder and may be detained at the police station with his/her client for 6 or 7 hours and all for the derisory fee of less than £200.00. My tweet was re-tweeted, I think, 25 times which, I understand is quite a high number of re-tweets. However, all those who re-tweeted were members of the profession, not one of my lay followers bothered to re-tweet because, to them, £200.00 is a lot of money, they do not recognise that the advisor has to get up the following day to go to court, that the firm has to cover the advisor’s out of pocket expenses, office running costs and indemnity insurance all has to be paid out of this derisory sum.

The Ministry of Justice see barristers and partners of law firms making profits and, as far as they are concerned, the same lawyers can continue to make profits from the same work, albeit at a lower rate which, as far as the government are concerned, is perfectly acceptable.
This argument is lost.

c. Ring-Fencing the Advocate’s Fee

I have seen many statements in favour of a “ring-fenced” Advocate’s fee. On the face of it, following the implementation of BVT the Bar were to secure such a thing it may be considered a great success. I think this is very naive. Such a scenario would pit solicitor against Counsel.

The “ring-fenced” fee would inevitably be lower than what the advocates are currently receiving (and I note the fees have been reduced considerably over the years and none more so in very recent times) and solicitors’ practices, which have to be run as a business and therefore for profit, would be forced to keep even more higher court advocacy in-house. This would present obvious issues for the Bar. As an experienced criminal defence solicitor, who recognises the value of HCAs for the right case, I can say how much I value the independent Bar and would certainly want to avoid a situation whereby the competition between solicitors and Counsel is increased even more so.

I therefore urge the Bar to stand with solicitors and oppose BVT in all its potential forms and not to seek the consolation prize of a “ring-fenced” Advocate’s fee.
 
d. The Interests of Justice

This, in my submission, is by far the strongest, and possibly the only valid argument although I rather suspect that this government has made up its mind despite the validity of any arguments advanced.

I have argued, for a long time, that there cannot be a conflict of interest between what is in the best interests of the lawyer’s pocket and what is in the best interest of the client. This is obvious of course but the point is lost on many.

I accept that solicitors, and barristers, have to operate within the commercial world and that we exist within a capitalist society. It cannot be argued that we must operate our practices as efficiently as possible in order to be able to make a profit whilst, at the same time, providing good value for money to our paymasters which, of course, in the case of publically funded matters is the tax payer. This goes without saying.

However, there are certain professions whereby these standard rules of enterprise cannot be applied so vigorously. Doctors, for example, cannot be influenced by commercial factors when deciding on the best course of treatment for a patient and so lawyers, equally, cannot be concerned with the financial implications of the advice they give to their clients. However, as dangerous and as obvious as it may be, this is exactly the situation that this government are seeking to effect.

In fact, such a situation has been slowly creeping into the criminal justice system since contracting and fixed fees were first introduced.

By way of example:

An accredited representative is called to a police station, out of hours, to advise a suspect accused of rape. Rape is one of those cases where the decision to answer questions or not may be more significant. Rape is also one of those cases, the advisor will know, is likely to take the most amount of time. Remember, of course, that the advisor is working to a fixed fee of no more than about £190.00 of which he may receive half, if he/she is lucky. The client is denying the allegation and disputing that any intercourse even took place. The advisor suspects that the client is hiding something. The client may have a perfectly valid defence, intercourse may have taken place consensually but the accused doesn’t want to admit to it because he is married or perhaps, having never been in trouble before, is panicking and thinks that if he denies intercourse he will be released, or maybe he thinks that if he admits intercourse, whilst he isn’t guilty of rape, it may be easier for him to be convicted of rape.

The advisor knows that, whether the intercourse that took place was consensual or not, if the accused denies it or if the accused answers no comments and the police are later able to establish that intercourse did take place, perhaps through the use of forensic evidence, the impact upon the accused’s trial will be very significant.

Addressing such issues to a lay client, in that type of setting, is inevitably going to take a long time and so those less scrupulous advisors may take the view, at 3.00 am that straightforward denial or a quick no comment interview will result in the advisor escaping from the police station far sooner and thus maximising the fixed fee.

Most publically funded lawyers take such pride in the work that they do that they would never allow such a situation to arise. However, with the cuts and with the consequences of those cuts, which will inevitably follow, such a situation is much more likely to arise.

We now work within fixed fees in respect of all aspects of the work we do from the police station through the Magistrates’ Court and the Crown Court. We are no longer paid for the work we actually undertake and so as lawyers are disincentivised from considering unused material, undertaking site visits, reading the papers that one extra time and this can only ever be said to be a bad thing because of the potential implications for the client.

Forget the fixed fees and the fact that those fees do not property allow for the work that needs to be done. This government have introduced fees which actually motivate the lawyer to advise the client to plead guilty. Even more recently the government have introduced fixed fees in the Crown Court which go to effectively financially punish the lawyer if his/her client elects trial in the Crown Court and then pleads guilty when in fact the magistrates would have accepted jurisdiction and the client could have been sentenced in the Magistrates’ Court. The difficulty with this latter situation is that junior members of the profession are under pressure to perform financially rather than professionally. Those of us who are experienced enough will know that most clients will do what they are told. Clients will plead guilty, even if they might not have committed the offence, simply because they are told by their lawyer that there is a likelihood that they will be convicted anyway and if it means a lesser penalty.

The client might be guilty and the evidence might tend to suggest that but if the client raises the potential for a defence, or even if he/she doesn’t but on the paperwork there is some flaw in the Crown’s case that might allow the lawyer to successfully defend the allegation, should the lawyer not be completed unfettered in pursuing the acquittal of his/her client? Of course is the answer but the adversarial system within which we operate has been completely eroded, through the back door, by the introduction of fixed fees.

I could go on sighting examples of different situations arising as a result of the many different ways in which, as a profession, we are paid, but I think you get the point.

3. The Judiciary
I read, with interest, the comments of Michael Turner QC (weekly roundup – 11th March 2013 – CBA) and I think to an extent I have touched, where necessary, upon some of the points he made. However, under the final heading of his article, “The Judiciary,” he refers to the separation of powers and in particular the role of the independent judiciary coming to the defence of the rule of law in the public interest when such institutions are at risk at the hands of the executive.

There does appear to have recently been a silencing of the judiciary and a reluctance, on the part of the judiciary, to stand in the way of the executive. Nevertheless I fear this is the last hope. Together, the whole profession, legal executives, solicitors, HCAs and the independent Bar, as well as members of the judiciary, must unite to stand against the changes being proposed and not on the basis of a problem recruiting into our law firms nor the fact that we only earn £30,000 a year above the national average wage as opposed to £60,000 like GPs do but for the only reason that actually matters: for the protection of the lay client.