Keeping criminal practitioners afloat
James Parry advises on the circumstances in which rejecting un-remunerative publicly funded criminal work is necessary to protect the firm and reflects on flexible court hours
Legal aid solicitors who specialise in criminal law can exercise discretion when accepting cases if the work threatens the viability of their firm. The Law Society reminded its members of this option when it issued guidance that helped clarify solicitors’ obligations under the legal aid contract to undertake certain work.
The aim of the guidance is to remind solicitors handling criminal law cases that only duty work is obligatory, and all other work may be refused on the grounds that it is uneconomical. The society’s criminal law committee recognised that the practice note was necessary as solicitors may need help in identifying circumstances which may warrant a refusal to undertake legal aid work, while still ensuring compliance with the Solicitors Regulation Authority’s Code of Conduct.
The guidance was deemed particularly necessary at this point because 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 which can only be carried out at a loss. This situation presents a serious tension between continuing to undertake legally aided work and obligations to provide a proper standard of service to clients or to conduct business in a financially sustainable manner.
Firms are having to carefully consider each instruction, in particular whether accepting or refusing such instructions will be contrary to their professional obligations.
The practice note therefore clearly sets out the situation as it exists under the current contract and is aimed at solicitors undertaking publicly funded criminal legal aid work, compliance officers for finance and administration (COFAs), and compliance officers for legal practice (COLPs) of firms and other entities providing those services.
Each firm’s COFA is responsible for ensuring that the business is run in a financially sustainable manner. Compliance officers must exercise due diligence in determining ‘whether the contract provides sufficient remuneration to enable the provision of such services that must be provided under the contract in a manner which is financially sustainable and properly resourced’ and what discretionary services can be provided under the scope of the contract in a manner which is ‘financially sustainable and properly resourced’.
Managers and compliance officers within solicitors’ practices have a professional obligation to run firms in a financially sustainable way that delivers a professional service. That cannot be done at a loss.
Criminal legal aid solicitors play a critical part in ensuring that anyone accused of wrongdoing has a fair trial, and yet many solicitor practices undertaking this vital work in communities around the country are struggling to survive.Persistent cuts to rates can create a situation for providers where work cannot be carried out to the requisite professional standards without undermining the financial stability of providers. Added to this, increased inflation and a possible second 8.75 per cent fee cut could eliminate the profits of most criminal legal aid firms and leave them unable to continue.
Flexible courts pilot
It is not a surprise therefore that the Ministry of Justice’s plans to launch a pilot programme of flexible early morning and evening courts have encountered strong opposition from lawyers. The initiative was announced long before the election and, according to HM Courts and Tribunal Service (HMCTS), is aimed at improving access to justice “by making the service more convenient and [using] courtrooms as effectively as possible”.
Despite the limits of the pre-election period, HMCTS decided to establish “local implementation groups” to explore the feasibility of extending court operating hours. The pilots are expected to start at six court centres in England and would involve extended working hours, with some court sessions starting as early as 8am and other sittings continuing until 8.30pm for a six-month test period. These plans will place additional pressure on poorly paid legal aid solicitors representing people accused of wrongdoing who already attend police stations at any time during the day or night under the duty rota scheme.
The Law Society is adamant that it is not acceptable to operate a pilot without paying solicitors properly for the additional cost they will incur as a result of having to work outside normal working hours. We remain unconvinced that the scope or evaluation of the pilot will be more robust than its predecessors.
The society’s concerns about the flexible court hours pilot and the second fee cut will be made known to the newly appointed justice secretary and Lord Chancellor, David Lidington.
James Parry is the chair of the Law Society’s criminal law committee