A dying breed

A dying breed

The Gazette's recent survey on legal aid revealed a structure heading for collapse.

Lawyers tell Paula Rohan of their despair and suggest that if the system is to survive, then a major rethink in the way services are delivered is needed

So, farewell then, legal aid.

After almost 60 years of giving the most disadvantaged members of society access to legal advice, the system is on its last legs - at least according to a major Gazette survey, reported last week (see [2003] Gazette, 23 January, 1).

The survey went out over the festive period, when many practitioners took time to ponder whether they had the means or the inclination to remain in publicly funded work.

This followed the annus horribilis that was 2002, which featured an expected pay rise that twice failed to materialise, criminal defence 'bashing' by the home secretary, and accusations from the National Audit Office and Public Accounts Committee that legal aid lawyers are ripping off the system.

The results show that as a consequence of these events and a build-up of troubles over the past few years, more than three-quarters - 78% - of the 270 firms that responded are considering cutting down on their publicly funded work by 2008, with one in five prepared to pull out of legal aid entirely.

And 91% say they are dissatisfied with the current system, the results show.

Rodney Warren, director of the Criminal Law Solicitors Association (CLSA), which backed the survey along with the Legal Aid Practitioners Group (LAPG), says he is shocked by the findings.

'I don't think any seasoned observer of legal aid would be particularly surprised at the trends the survey reveals,' he says.

'But they will be alarmed about the increase in the numbers of those leaving one or more area and those who say they will no longer be doing legal aid in five years' time.

'This indicates that, on the whole, firms are looking more to private work and no longer see legal aid as having a future.

It is also astonishing that this is down to only two factors - remuneration and bureaucracy - and the two amount to the same thing.'

One Herefordshire-based partner agrees.

He wrote on his survey: 'We are paid 12 per hour to drive to London to attend court, but it costs 70 per hour to run the office because of all the idiotic forms and other mad bureaucracy we have to deal with.'

Also cited by respondents were anti-social hours, frustration at the Legal Services Commission (LSC) auditors' and supervisors' needs, and sharing an image with the perceived 'fat cats' of the profession without the rewards.

It is fair to say that legal aid solicitors are not a happy bunch.

'I am so bloody stressed trying to get somewhere near breaking even for the firm and providing a personal service for clients, that the legal aid admin is becoming the straw likely to break my back,' said one respondent to the survey.

'As I write this, I am realising how determined I am not to be in this position in 12 months' time, and how likely it is therefore that this firm will retreat finally from legal aid.'

The LSC and Lord Chancellor's Department have urged practitioners to come forward if they can think of a way of cutting down on bureaucracy while still protecting the public purse.

'The LCD and LSC have recognised for some time now that there are potential problems with remuneration and we take them very seriously,' they said in a joint statement.

'In particular, we are concerned about the 17% reduction in family contracts since January 2000.

So far, access has not been a serious problem but we are monitoring the situation closely.'

But Legal Action Group director Karen Mackay says the situation has now reached breaking point, which is not healthy for the legal aid scheme, its providers, funders or users.

'All that will be left is a small, possibly dedicated, but definitely demoralised, number of legal aid firms,' she predicts.

'Access to justice will suffer and so will those things that go alongside which the government is so eager to promote, such as social inclusion and citizenship.'

Ms Mackay's gloomy prediction is backed by the results: 81% they said felt less optimistic about the future of` publicly funded work compared to this time last year.

One solicitor who is not surprised at the way things are going is Nicola Mackintosh.

Her firm, London-based Mackintosh Duncan, brought a judicial review against the then Legal Aid Board (now LSC) in 1999 when it first came up with the idea of contracting.

She was optimistic that things might take a turn for the better following the court decision, even though she lost, but complains that instead matters are going the same way as the National Health Service, which is also losing staff at all levels.

'The picture over the last two years has been one of increasing bureaucracy, intransigence and inflexibility,' she argues.

'Legal aid rates have been cut - if that were possible - in some areas, and the attitude towards auditing of costs claims is simply Kafkaesque.

The LSC has also failed to address some of the most serious concerns raised during the judicial review, such as the stifling of new firms, prevention of growth and developing areas of law, and movement of practitioners within the legal aid market.'

This has severely tested the social commitment of many legal aid solicitors, prompting comments including: 'The Access to Justice Act has severely hindered access to justice' and 'poor man's access to justice becomes access to poor lawyers'.

The survey results mirror the Law Society's own research, Access Denied, which caused chief executive Janet Paraskeva to warn last week about growing 'advice deserts'.

One area of concern is a shortage of family practitioners, as the survey revealed that these were the most likely to reduce or drop their publicly funded work.

On recruitment, 62% of the respondents said they had problems filling vacancies, mainly for fee earners - but around half of these firms had trouble bringing in support staff as well.

'We believe the downward trend is likely to continue and we have yet to see the full impact of it,' warns Jane Craig, chairwoman of the Solicitors Family Law Association.

'Some firms which work on a "mixed economy" basis may be able to continue to subsidise their publicly funded work through their private family law fee-earning, but others, in more deprived areas, do not have this choice.

The consequence may, therefore, be that the poorest and most vulnerable members of society stand to lose out the most.'

This can be illustrated by the situation with a leading east coast Kent firm which would prefer not to be named.

A partner and family specialist was just one respondent to raise fears about his locality because his firm is actively moving away from legal aid because of low rates, and as a result he had to move offices to fit in with the firm's aim of pursuing privately funded work.

'It has come to the point where the Lord Chancellor doesn't care about the public any more,' he complains.

'If I had not made the move I would not have a job any more, so the decision was simple.

The local public are clearly feeling the effect of this as other firms in the area are adopting the same approach and they are finding it hard to obtain good quality representation.'

One practice that suspected all was not well years ago - and as a result started its pre-emptive move away from legal aid - is south London firm Fisher Meredith.

One of the largest legal aid providers in the capital, since 2000 it has cut by 50% the amount of publicly funded work it does, and managing partner Stephen Hewitt says this is likely to continue.

'We made a conscious decision to do as little as possible due to low rates and the bureaucracy, which is at times mind-boggling,' he says.

He maintains that if other solid legal aid firms follow suit, the foundations of the system will be irrevocably destroyed.

'If the government is content to let the supplier base be eroded, it is going to see the larger and better-established firms leaving,' he warns.

'If you're going to lose work conducted by these firms, then the question is how are you going to reconstruct that supplier base? You have lost all the expertise and you will end up left with smaller firms making up cottage industry outlets - and I really don't think they are the suppliers the LSC would want.'

Another firm heartily fed up with legal aid is Welsh giant Hugh James.

It currently covers 11 contract areas but partner Mark Powell predicts that this may not be the case for much longer.

While stressing that no final decision has been reached, he says: 'We can see little prospect of us doing any substantial entry point publicly funded work in the future unless the rates improve dramatically.'

Whether one looks at London, Kent or Wales, a factor that emerged from the survey was that disquiet is not determined by geography, although respondents' comments indicated that there is little appreciation of the specific problems they face.

The government and the LSC have tried to address regional variations through the development of Community Legal Service Partnerships, although concerns are growing that these may actually be backfiring when it comes to addressing gaps in provision (see [2002] Gazette, 16 January, 1).

Practitioners insist that more should be done.

One said: 'In the Home Counties [where the firm is based], overheads are so high there is hardly any profit in it.

They should look at different rates for each geographical area, like the courts do on hourly rates, so as to reflect the local cost of running a practice - staff, costs and so on.'

Mr Hewitt would back this, as there are other issues linked to working in the capital.

'The problems are more acute in London because you are competing with support staff with a better-paid sector - for example, secretaries can go three stops further on the tube and do private fee-paying work,' he says.

'Also, the London overheads are substantial and there is no recognition of this in the rates.'

The survey indicated that even if firms stick with legal aid, this would often not be through choice, highlighting a distinction between larger firms and their smaller counterparts that do not have other areas of work to fall back on or expand into if they drop out.

One sole practitioner lamented: 'I am plodding on with no alternative to LSC-funded work available.

I am stuck.'

For those remaining in the system - through choice or necessity - there are measures which can make their lives easier, according to Simon Pottinger of legal aid consultancy JRS.

He says the first step is to be positive, despite providing a 'vital service in the most regulated and least well-remunerated market ever'.

Networking with groups such as LAPG and CLSA can also build morale.

Insisting that employees - both fee earners and support staff - are using their time appropriately is also important.

Mr Pottinger also criticises being a 'slave to franchising and the specialist quality mark', and forking out large sums on complex IT systems when basic software would do.

But one of his suggestions is to 'get a good supplier reputation' with the LSC, although this does not mean letting the auditors walk all over you.

He says firms should learn the rules and then 'work on the basis that you - and not the LSC - are right about the outcome.

Appeal everything, especially critical quality concerns, contract compliance results, even category ones [where auditors conclude that firms have only overclaimed on fees between 1% and 10%] if you have the energy and time'.

However, a view is emerging that the system cannot remain as it is and survive.

Many maintain that the only way forward is to rethink completely the way legal services are delivered.

The Law Society itself is set to seek the profession's views on this when it launches a consultation on the issue next month.

Mr Warren, who is also chairman of the access to justice committee, is keen to stress that the Society is totally behind legal aid practitioners.

But speaking at the CLSA annual conference in November 2002, Society president Carolyn Kirby said practitioners would either have to 'surf the tides of change or drown in them' because change was inevitable.

'Our profession must understand that by accepting that maintaining the status quo is simply not an option, we will be in a better position to influence those with the power and authority to determine the forms in which publicly funded legal services will be delivered in the future,' she urged.

'Sticking our heads in the sand and wishing the innovators away simply will not do.'

Options to be put to the profession include farming out more work to the not-for-profit sector or extending Law for All, a charitable scheme that operates along the lines of a profitable law centre.

An extension of the Public Defender Service to include more salaried criminal defence solicitors and even to start salaried civil services is an alternative.

Policy makers are also looking into South West Law, a limited company headed by solicitors whose work is mostly legal aid.

However, Mr Warren says there has been an omission from policy decisions about legal aid - research into which type of firm would operate best within the market.

He says this is vital before matters move forward.

'Do they [the LCD and LSC] want big supermarket-style firms, or do they want small firms? Is big beautiful, or is small better?' he asks.

'There needs to be an economic model, and they should be open with the profession about this, engage solicitors in discussion.

It is not too late for them to do this.'

Commentators are predicting that changes need to be seriously addressed as 2003 has started not with hopes that a pay rise will emerge, but the fear that budget cuts will be made (see [2002] Gazette, 21 November, 5).

'The obvious answer is more money, but nobody realistically expects that to happen,' Richard Miller, director of the LAPG, says.

'All we know is that the system is not sustainable without more money, so the options are to allow the system to collapse, put more money in or make structural changes.'

One respondent to the survey, rather than asking for more money or less paperwork, simply said they 'would wish for a period of stability and as little change as possible'.

Ms Mackay is doubtful that this option exists any longer.

'New ways need to be found to fund public legal services as a matter of urgency,' she insists.

'It is clear that the Treasury is not convinced of the need for legal services, but perhaps when more people lose their homes as a result of no access to legal services, or more children are taken into care, it will begin to take the contribution that legal services make to a healthy community - as well as savings to the public purse - more seriously.

I hope it doesn't come to that - but it looks like it will.'