Sussex: the forgotten legal aid lawyers

Sussex may be one of the wealthier regions in Britain, generating employment for firms specialising in commercial and private client work, but with one of the higher population densities too, large sections of the public rely on legal aid lawyers for advice. And high street firms that have traditionally handled a combination of private and publicly funded work are now contending with the biggest challenge in their history since publicly funded work was introduced, according to Gilva Tisshaw, managing partner at Haywards Heath firm Hamnett Osborne Tisshaw and president of the Sussex Law Society.

Rethink their strategy

So, while firms like DMH Stallard have radically changed direction by turning themselves from a local firm to a major provider of legal services in the South-East and London, predominatly legal aid firms like Tisshaw's, which intend to continue to offer legal aid, are having to completely rethink their strategy.

'The general view is that the time-scale for the introduction of the reforms has been very quick,' says Tisshaw. 'The proposals were put up for consultation, but it seems that those affected '“ legal aid lawyers '“ were given a much shorter period to respond than the Legal Services Commission (LSC); and each time it seems to have been over the main holiday periods when many lawyers are on holiday.'

However, Tisshaw's greatest disappointment is that the government has not thought through the changes properly.

'Sussex is a wealthy area but there are large sections of the community that are very vulnerable. In some respects, the government has been very short-sighted: if you do not help people at the grassroots, their problems will escalate and grate at higher levels.'

Her point is that when people come to see a solicitor for out-of-court advice, the problem can often be nipped in the bud, and if a solution is not straightforward, the case will flow more easily anyway, saving time and costs in the long run. 'But with the increasing

difficulty in securing legal aid, there are now more litigants in person, which causes a serious drain on court resources '“ cases take longer, there is more disorder in court, and certain cases involving people with mental health problems can become intractable.'

So much so that the local courts are now experiencing a high turnover of staff as employees are taking the brunt of the stress resulting from the rise in difficult, protracted cases, coupled with the non-competitive salaries for this area.

Lack of representation will, inevitably, affect the most vulnerable as the protection that legal aid offers is being eroded '“ 'parents whose children are taken into care,' says Tisshaw '“ but what about the lawyers themselves?

'The majority of solicitors on the children panel are over 40; there are no new skills coming into this area of work,' continues Tisshaw. Having qualified in 1989 and then undertaken a mixture of commercial litigation, family and personal injury work, Tisshaw and her firm, like many on the high street, have shaved off certain work streams to practise exclusively on a few key areas: her firm specialises in family law and crime, and she now exclusively specialises in family work.

'There is a clear move towards specialisation on the high street, not just individual lawyers but firms as a whole; the high street generalist practice is disappearing. Here in Haywards Heath, we are one of four specialist family firms and one of two doing crime and there is a handful of specialist non-contentious firms doing conveyancing, wills and commercial work.'

In addition, Tisshaw says that where a firm has a legal aid franchise, the LSC is expecting the whole firm, not just the legal aid departments, to comply with its management standards, putting a further strain on firms.

In Sussex as elsewhere in Britain, it is a numbers game as legal aid firms are reviewing their commitment and either reducing the size of the departments doing legal aid work or simply closing them down because the legal aid partners will never be able to earn the rates of their private work counterparts.

'The base rate for family legal aid work is £68.50 (South Eastern circuit) per hour, with a 15 per cent mark up if you are on a panel,' says Tisshaw, 'which is nothing compared with commercial rates, and those doing private work are less and less inclined to subsidise their firm's legal aid department'.

And so legal aid firms are putting the key under the door, like Brighton-based firm Edward Harte & Co, which decided in March to stop undertaking family legal aid work. The partner in charge of family legal aid work, Elizabeth Taylor, who has been a very long standing member of the children panel, and undertook care work for over 30 years now concentrates solely on private work.

'We are now the only family legal aid firm in mid-Sussex; clients are coming from miles away, from Crawley and Horsham and Surrey; they have sometimes tried several other legal aid firms, and we have to say that we can't take them on if our resources are too stretched,' says Tisshaw.

Commoditising legal aid?

Legal aid lawyers are not in it for the money, but the current situation has to make them think that way. Senior partners in smaller firms have traditionally continued with fee-earning work, but increasingly legal management consultants say they should, instead, concentrate on managing their firms' development. And like their commercial brethren, they should only get involved in fee-earning work in exceptional circumstances.

If this sounds like the commoditisation of legal services which has been taking place in other areas such as conveyancing, that is because it is. And there is no reason, on paper, why legal aid cannot be governed by the same principles of sound business management. If banks believe that they can provide property or will services, why couldn't they, in due course, be awarded a legal aid franchise?

'There is room for accommodation of these principles,' says Tisshaw. 'The profession is not opposed to change, but there is a feeling that there should have been a proper consultation on how this can be made to work. With ancillary relief work, for instance, you never know how complicated it will be; it depends on how difficult it will be to get information from the other side; even collating documents from your own client can take time.'

Doing the maths could become a more frightening exercise if the government insists that legal aid contracts will only be awarded to solicitors who also offer legal help. 'The legal help rates are painfully low,' Tisshaw continues.

'Only £3.95 to write a letter, or £50.05 per hour for attending and preparation, which people think is a lot, but once you have paid your overheads, it is only affordable if you, as a firm, are paying your lower paid fee earners to do this type of work, not senior lawyers. In respect of family legal help the regional average cost is £195 per case (£208 nationally). It is proposed that we be paid £94 for initial advice and £159 for a divorce,' she explains.

According to Tisshaw, most lawyers would accept remaining on the current rates at the present time because it at least offers some certainty at this time, even though there has been no increase for nearly six and a half years. She was particularly disappointed that Vera Baird QC MP, a former criminal legal aid lawyer, only appeared to pay lip service to the need for consultation in that she did not actively engage with suppliers in taking on board their concerns.

And as far as criminal work is concerned, the inflation of new offences should have been accompanied with an increase in the legal aid budget. 'Lawyers are progressive, but you can not starve the machine. People still think that all lawyers are fat cats and do not realise the work legal aid lawyers do until they suddenly need one because their son or daughter is in the police station.'

Equally, Tisshaw says it would go against her principles to refuse to help a client and that they will always try and give a bit of their time, but even with the determination to make it work, the question remains: how?

The Carter reforms are based on the predicament that legal aid will be provided by fewer bigger firms, either as a result of growth or through amalgamation. Tisshaw dismisses the possibility of a merger: 'We have worked brilliantly as a partnership, and would be very cautious about a merger, as there can be a lot of disharmony when bringing together firms with different cultures.'

Merger or organic growth?

Instead, she and her partners are aiming to continue to grow organically. In the past eight years, Hamnett Osborne Tisshaw has grown from three to 16 fee earners, a sign that the firm has both been successful and is prepared to take risks.

One strategy to continue in this direction is for the firm's criminal legal aid department to take on more very high cost cases. Although this could lead to another case of one department subsidising another and delay addressing the crux of the issue: whether a family legal aid department can be made to stand on its own financially.

However, at this stage, the real obstacle is the difficulty in making any plans because until the reforms '“ whatever they ultimately are '“ are rolled out, nobody is able to forecast exactly how it will affect their firm over the next few years and how they should set about working in the new framework.

Until then, no firm can put together a realistic projection for the profit and loss account or balance sheet which the LSC is asking firms to produce.

Tisshaw's concern, ultimately, is that if the reforms are implemented as planned, few lawyers will be attracted to this part of the profession. Her firm has always had a good relationship with Sussex University and local schools and has usually taken on 16 work experience students each year. This summer, they only had three.

'First year legal aid trainees are paid often at the Law Society minimum of £15,820 a year; local commercial firms offer as much as £19,000 to £23,000.'

But Tisshaw is 'quietly hopeful' that the new justice minister, Jack Straw, will take a different view from his predecessor. Local MPs, of all political colours, have been supportive of legal aid lawyers and have acknowledged the pressure they would be under.

But despite all the gloom, Tisshaw remains optimistically determined: 'Hopefully the profession can come through this.'