As the Gazette's third annual legal aid survey reflects the deepening gloom and growing 'advice deserts', Paula Rohan finds that embattled solicitors are grappling with red tape and rates of pay

Last year, we referred to 2002 as an annus horribilis for legal aid solicitors.

It seems events in 2003 have made practitioners even more demoralised, according to the Gazette's third annual legal aid survey, which shows that 74% are now set to drop or cut back on the amount of legal aid work they undertake - leading to fears of 'advice deserts' in some areas.

More than nine out of ten of the almost 300 firms that responded are dissatisfied with the system, and a similar number say they are more pessimistic than this time last year.

It is perhaps no coincidence that 2003 was one of the busiest years in terms of legal aid policy.

A plethora of consultation papers landed on the desks of representative groups.

Some cynics say these were designed to confuse the profession rather than inform those in charge, especially given the tight response deadlines attached to some of the documents.

However, the numerous consultations were fundamentally important to the running of the system.

An overhaul of payment in asylum and crime was mooted, the standard terms of both civil and criminal contracts have been debated, and the matter is still on hold amid allegations that the terms proposed are unlawful; in fact, the new criminal contract has been delayed for three months.

Civil firms had to go through a bidding round for their contracts and are still awaiting the results, while their crime counterparts were told that two-thirds of them would no longer exist in five years' time.

If this was not enough, the Legal Services Commission (LSC) announced an overspend of 100 million, firms threatened to go on strike, the Law Society suggested that GP-style contracts were the way forward and Prime Minister Tony Blair raised the temperature further by complaining about a 'legal aid gravy train' in his speech to the Labour Party's annual conference.

All this brings increasing uncertainty on the profession - in fact, 61% of respondents to the survey say they are unable to plan for the future.

Perhaps just as telling as the statistics are the comments they include.

'In 29 years of legal practice, I have never known the mood of legal aid practitioners so depressed,' responds one Hampshire-based solicitor.

'Good, committed lawyers are looking to get out of legal aid work by almost any available route - and these people are not being replaced.'

The government and the LSC are less likely to be swayed by the laments of the lawyers than by the finding that three-quarters of firms turned clients away in the last year.

Some respondents say they showed 'hundreds' of clients the door.

The problem was worse for those firms reporting to LSC local offices in London and other cities such as Birmingham and Nottingham, where up to 83% of respondents told clients to go elsewhere.

However, many solicitors in rural areas say they are having the same kind of problems.

'We are sending family cases to as far as 50 miles away,' says the disgruntled solicitor from Hampshire.

The Criminal Law Solicitors Association backed the research.

Its director, Rodney Warren, also chairman of the Law Society's access to justice committee, says many people who are unable to get advice from a solicitor will not pursue their cases rather than travel 50 miles.

'These are people who just go away quietly.

They do not make a fuss, and yet there is no measure of unmet need.

They are victims of injustice who cannot represent themselves or get legal help for often very serious problems with housing or debt, for example.

This is all extremely troubling.'

Mr Warren, like other lawyers, could foresee many of the findings owing to events throughout the year.

'For me, 2003 marked the year when it became apparent that the LSC is in fact impotent as far as legal aid spending decisions are concerned,' says Andrew Keogh, associate at national crime firm Tuckers and director of Crimeline, the free e-mail information service that backed the Gazette research.

'Despite their best efforts, they are unable to deliver a system that delivers a quality service at the point of need, resulting in advice deserts that have the result of depriving the genuinely needy of advice, assistance and representation.'

But Simon Pottinger, lead consultant at legal aid consultancy JRS, argues that the results are a culmination of policies that were doomed from the beginning.

'These results statistically bear out anecdotal evidence from our clients on how the profession is feeling,' he says.

'Contracting was never a guaranteed mechanism for seeing access to justice, so I believe these were pre-destined results, which have only been compounded by a cash shortage.

Most of our clients are pretty depressed by the whole state of affairs.

They are turning away clients, cherry-picking cases, and have run out of matter starts.'

Legal Aid Practitioners Group director Richard Miller - who also backed the survey - agrees that matter starts are proving to be a huge problem for many civil firms.

More than half of respondents to the survey say they have experienced a shortage, while one-third that applied to the LSC for more say they were left disappointed.

He notes that 36% of firms that turned away clients had run out of matter starts - 'yet even now we are only three-quarters of the way through the year.

The system of allocating matter starts to individual firms simply isn't working'.

Richard Moorhead, a senior research fellow at Cardiff University law school who has spent a lot of time looking at legal aid, agrees that there are problems, and says this is ultimately down to money - '2003 was the year that budgets bit back,' he says.

He adds: 'Tighter control of matter starts and proposed restrictions on immigration work were the result.

The Gazette surveys are an interesting contrast to the last LSC annual report which - once [former LSC chief executive] Steve Orchard had gone - suggested the situation was stabilising.

The Gazette survey is probably too pessimistic, but the LSC's view is probably not right either - there are serious difficulties and there needs to be a clear look at the access problems that are building up in the system.' Mr Orchard was replaced by Clare Dodgson in June 2003.

The Gazette survey is compiled by sending out copies of the survey to hundreds of firms, either directly or through the groups that support it, and asking solicitors to return them.

The LSC admits that there are patches of under-supply, but argues that contract holders bid for 90% of existing contracts, with new bids more than compensating for the shortfall.

'In some regions, the numbers seeking a contract considerably exceeded the current level of supply,' a spokesman adds.

'This was particularly true in London and in certain categories of law.

This high level of interest means that we are holding competitive bid rounds in many areas.'

These facts from the LSC certainly fly in the face of the anecdotal evidence from practitioners, and make it harder for representative groups to argue their case.

However, 17% of current contract holders say they either did not bid for at least one contract area, or did not intend to take up the offer of a contract if it emerged.

Commentators suggest that many are biding their time to see if they can come up with an escape plan.

Observers say the problem is exacerbated by the fact that many firms will be able to afford to drop legal aid because it does not make up a high proportion of their income.

For the first time, the Gazette survey asked firms how much of their workload is publicly funded; for one-third it makes up less than 25%, with a further 22% saying between a quarter and a half of their money came from legal aid.

Only 5% were totally reliant on publicly funded work.

There is also a general pressure from the private side in many firms to drop legal aid, as it is seen as more trouble than it is worth.

'The government has got to recognise the need to fund the true overheads of a legal aid practice - the cross-subsidy that is common within private practice can't be expected to continue,' says Nony Ardill, policy director at the Legal Action Group.

Bureaucracy as well as rates of pay are serving as a disincentive for 77% of firms - one solicitor complains that the system is run by 'red tape heads' - as is the perceived lack of recognition for what they do.

These factors combined suggest that if firms can get out, they might well do so.

One family law solicitor with 17 years' experience writes on his survey: 'I myself am no longer interested in doing legal aid work as there are no rewards for it, little monetary or [other] acknowledge-ment of the hard work and difficult circumstances to work in.'

In fact, family law emerges as one of the biggest problem areas; it is the most prevalent contract area for respondents to the survey (73% have a family contract), and is also one of the areas most likely to operate alongside a large volume of privately funded work.

Godfrey Freeman, chairman of the Solicitors Family Law Association's legal aid committee, says the Gazette's findings correspond with its own research.

'Our concern is that once firms begin to withdraw from legal aid, they may well quit entirely,' he explains.

'When there is a shortage of firms able to take on new cases, the most vulnerable members of society will find it increasingly difficult to get the help they need for the most stressful and difficult family problems.

When emergency action is needed, in domestic violence cases for example, any delay is likely to have a detrimental effect on the client and her children.'

The House of Commons' constitutional affairs select committee announced at the end of last year that it would look into possible 'advice deserts', while the Department of Constitutional Affairs (DCA) itself is still working on a study of supply and demand.

Ms Ardill is concerned that although the results may give the DCA some bargaining chips when it goes to the Treasury for more money, those in charge do not have the right mind-set.

'There is an increasing tendency for the DCA and the LSC to talk of 'targeting' legal aid to ensure 'value for money',' she observes.

'They make frequent references to focusing services on the "socially excluded".

This leaves a lot of unanswered questions about who is or is not socially excluded, about what level of provision is appropriate for socially excluded groups - rather more advice and guidance than litigation, it seems - and what is on offer for those who fall outside the favoured definition of social exclusion.'

These questions may be addressed by the DCA and its overseeing committee in their reviews, but there will be other developments in 2004 - next week, the Legal Services Research Centre publishes its research report, 'Causes of Action: civil law and social justice', detailing the findings of the first periodic survey of legal need.

The LSC will forge ahead with its 'preferred supplier' pilot, starting in June.

Following the telephone advice pilot, deemed successful by the LSC, a roll-out of first-stage telephone advice for certain areas of law will be implemented.

The LSC will also take control over setting rates of pay from the DCA.

'It will be interesting to see if they now act on their corporate plan's stated intention of raising rates in autumn 2002 for both civil and criminal practitioners,' muses Mr Miller.

Then, of course, there is the Clementi review of regulation and competition in the legal profession - and what effect that will have on legal aid provision is anyone's guess.

Ms Ardill speculates that those in charge may be forced to change the way they think.

'As far as the role of private practice is concerned, there are signs that the DCA and the LSC are genuinely rattled about the prospect of firms withdrawing from legal aid work,' she says.

'A transition from partnership models of business to other structures, such as charitable companies, may be a possibility for some practices - and would reflect the reality that they are providing a public service.

But such changes can't be imposed overnight.'

Mr Keogh maintains that legal aid firms will also have to change their attitudes and adopt some 'innovative thinking'.

However, he predicts that if everyone seizes the opportunity to engage in constructive debate, next year's Gazette survey might not make such gloomy reading.

'I hope in 2005 we are able to look back and say that we used 2004 to devise and begin to implement a radical overhaul of legal aid that will serve us for many years to come,' he says.

'Anything less, and we have failed not only ourselves but the community at large.'