No gain, much pain

Starved of cash, beset by recruitment woes, and buried under red tape, many legal aid solicitors are barely surviving.

Paula Rohan hears how the noose is tightening around ailing firms

The theory of survival of the fittest appears to apply not just to the animal kingdom, but to legal aid as well.

Last week, research conducted by the Gazette showed that 57% of legal aid firms say they can no longer cope with the demands of maintaining their legal aid status, leaving the minority to carry on as best they can (see [2002] Gazette, 10 January, 1).

One firm reported that the only way it could keep up its legally aided mental health remit was because other firms in the region had all but given up on the area, creating more work.

However, this still created a shortage of advice, which is reflected by the worrying statistic that just 15% of firms in England and Wales are prepared to take on new areas to make up for the shortfall.'If it translates into reality, [57%] is a very alarming figure, and should cause concern,' says Karen Mackay, director of the Legal Action Group.

'But what is even more alarming is availability being narrowed more and more.

The chances of people moving into new areas and meeting new needs now seems to be remote.'Firms are citing a number of reasons for their reluctance to continue to be involved with legal aid.

Financial hardship, as always, is top of the list, and has left the Law Society, Legal Aid Practitioners Group (LAPG) and other representative groups calling once again for more money for legal aid lawyers.

Rodney Warren, chairman of the Criminal Law Solicitors Association and a Law Society Council member, says he is not surprised that one respondent to the survey, in giving reasons for dropping a criminal contract, said simply: 'Crime doesn't pay.' He argues that the effects of this will not be seen in ten years' time, but in a matter of months when firms start to become insolvent.'What many people don't understand is that when solicitors say it is barely economic - or not economic at all - to take on legal aid work, they mean that they are actually losing money from it,' he explains.

'It does not just mean that they are not earning as much as they would like to.'For many firms, this has meant relying on privately funded work to subsidise the legal aid, but many maintain that they are no longer prepared to accept this situation - much as they would like to remain in the legal aid arena.'I fund my commitment to housing work through doing personal injury cases which make up the shortfall,' says Tony Griffin, partner at Exeter firm Cartridges.

'Remuneration for legally aided work is now at about the level paid to many plumbers, but it requires us to maintain expensive offices.

We are continuing to do the work through commitment to the legal aid scheme and the natures of work covered, and in the hope that it will be a passport to better paid work under public funding and/or privately funded work.'Ironically, it is the firms which are not 100% legal aid that are being worst hit by another bugbear: supervisor requirements.

These requirements put them in a catch-22 situation as they mean that firms must bring in a certain amount of work to qualify for a

contract in a particular area.

However, if they are also covering other types of work (even if it is to support legal aid), the chances of them living up to the requirements are reduced.'There are people around who are competent to do the work, but don't do 100% legal aid, and these are the ones who are dropping out,' says Ms Mackay.

'What is worrying about this is the access effect, especially on the conurbations.'What is also worrying, according to Wendy Hewstone, partner at Southampton-based Hannides Hewstone, is that solicitors are being pushed away from general practice and into specialisms to adhere to the requirements.

Her firm just five years ago prided itself on being able to provide a range of services from conveyancing to criminal work, but is no longer able to do this.

It has dropped out of criminal legal aid, and suggests that the system is letting clients down.

This also puts firms in a risky situation, Ms Hewstone maintains.

'The client ends up being passed from one specialist to another, none of whom is capable of, or permitted to take, a view of the overall picture,' she argues.

'This does the client no good at all and I believe does no good to the firms concerned or the legal profession in general either.

To take a parallel from Darwin - in times of stress it is usually the specialists who become extinct first.'One firm which suffered from this - but does not wish to be named - had to give up its family contract because it was impossible to recruit a panel member with the required supervisory experience.

But while some firms said they were giving up legal aid because they were unable to recruit, others said they were not recruiting because they were dropping legal aid.

This has created fears that there will be lost generations of legal aid lawyers, and a growing extinction of firms as a whole.Last week, the LAPG launched a consultation document looking at ways of stemming recruitment problems, because, as its chairman David Emmerson puts it, 'the fear is that if people go from legal aid, you won't ever get them back'.The survey showed that recruitment problems are already having a profound impact on legal aid provision, and firms are getting worried that it is becoming irreversible.

Smaller firms in particular might have just one solicitor covering an area of legal aid, and if they leave and cannot be replaced, it can mean a firm losing a contract.

'It only takes a matter of minutes for someone to write a letter of resignation and then move onto another area of law, or even go and get a proper job,' says Mr Warren.

'But if lawyers are giving up particular types of law, they can't then be replaced tomorrow just because the rates of pay have been increased.'However, to attract and retain lawyers and keep firms interested, it is not just the money but the working conditions which count, and firms report being fed up with bureaucracy.

Many see trying to keep up with the paperwork as a never-ending, futile exercise.Coventry-based sole practitioner Celia Grew says: 'I love my work, but I am spending more and more time on administrative functions and cannot tolerate the frustrations, or the poor service from the LSC [Legal Services Commission].

The LSC requires a standard of service from us but fails to comply itself.

It requires more and more records to be kept of this, that and the other, but is never going to use the information contained in those records.'The LSC says it has been keeping red tape to a minimum, and is addressing this and other issues raised.

The Lord Chancellor's Department maintains it is constantly working with the LSC to allocate limited resources, and that it has already put the money up.

However, for legal aid solicitors this may not be good enough, and despite commitment to their work, it seems that only the fittest or luckiest firms will survive to keep all their legal aid contracts.

It is the clients who will lose out in the end, they say.

'In less than three years, four firms in our location have stopped doing family legal aid work,' says Ms Hewstone.

'We are now the only firm [in our area] doing such work.

Historically, family legal aid work is much in demand in our area and even if we act for one party, there is now no other firm to act for the opponent.'