Criminal legal aid solicitors are at risk of breaching regulatory requirements whatever they do.

The thousands of criminal defence practitioners taking part in a nationwide legal aid boycott must feel like they’re stuck between a rock and a hard place right now.

On the one side, they’re trying to convince the Ministry of Justice that fee reductions (two 8.75% cuts since March last year) and contract reforms (a reduction from 1,600 to 527 in the number of duty provider contracts to provide 24-hour cover at police stations) spell disaster for the future of the criminal legal aid market.

On the other side they’re having to keep the Solicitors Regulation Authority, which is reminding them of their professional obligations while they’re involved in their ‘difficult commercial dispute’, off their backs.

The news that practitioner groups are to meet MoJ officials on Tuesday is encouraging – it will be the third round of talks since the action began.

Not so encouraging is the fact that the ministry has made clear it is not willing to hear anything that will affect the commencement of its legal aid contract plans.

Nor, would it appear, is the MoJ willing to abandon the second fee cut (introduced on 1 July) altogether. The practitioner groups said they were invited to provide ‘bankable savings that would be offset against a three-month suspension of the cut’. (Each 8.75% cut generates an annual £60m saving. Three months equates to £15m.)

At the same time, the SRA has said it is still not happy with a protocol for solicitors taking part in the action. The protocol was amended after the regulator issued a warning notice on 27 July.

In the notice, solicitors are reminded of the following six SRA principles:

  • Principle 1 - uphold the rule of law and the proper administration of justice;
  • Principle 2 - act with integrity;
  • Principle 3 - not allow your independence to be compromised;
  • Principle 4 - act in the best interests of each client;
  • Principle 5 - provide a proper standard of service to your clients;
  • Principle 6 - behave in a way that maintains the trust the public places in you and in the provision of legal services.

But there’s one crucial principle the regulator has not addressed, which forms the crux of the solicitors’ action:

  • Principle 8: You must run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles.

In essence, every solicitor whose firm undertakes criminal legal aid must consider whether, at the new rates, firms can continue to deliver services of sufficient quality and client care to meet professional obligations, contractual requirements and still make a profit.

So, breach regulatory requirements if you struggle under the government’s cuts; but potentially breach regulatory requirements if you fight those cuts.

In a letter to London Criminal Court Solicitors’ Association president Jonathan Black, SRA chief executive Paul Philip said the regulator was ‘currently considering our regulatory and thematic plans for the next 12 months. This may include a thematic review of criminal practice, and that would be likely to involve visits to firms and consideration of these issues’.

The problem is, if the practitioner groups’ concerns over the government’s legal aid reforms turn out to be correct, there won’t be many firms for the SRA to visit.

Monidipa Fouzder is a Gazette reporter