LAWYERS ARE BEING ENTICED INTO THE SALARIED DEFENCE SERVICE WITH OFFERS THEY MAY FIND DIFFICULT TO REFUSE.

BUT APART FROM THE THREAT TO FIRMS IN PRIVATE PRACTICE, THERE ARE ALSO ETHICAL OBJECTIONS, WRITES JON ROBINSThe recent advertisements in the national press seeking six lawyers to be 'the pioneers of a radical, far-reaching initiative' project - or the Salaried Defence Service (SDS), as it is more commonly known - will represent something of a dilemma for criminal defence solicitors.Many are dead against the SDS in principle and echo the damning view of the Criminal Law Solicitors Association (CLSA) that it is 'unnecessary and grossly expensive' and a 'waste of ...

valuable resources'.

But, then again, it is a tempting way out of the grim financial realities of private practice by effectively doing the same job.It is likely that such conflicting sentiments will be aired at what promises to be a highly-charged CLSA annual conference next week.

A clue as to chairman Franklin Sinclair's own take on a public-defender scheme is the working title of a recent speech.

'Why would you want a salaried defence service when you have got fools like us?' The Legal Service Commission (LSC) is currently interviewing candidates selected from more than 100 applicants.

The service in its pilot stage will comprise six offices, with at least three opening in April 2001.We are not against it - but we're not for it either,' says Malcolm Fowler, chairman of the Law Society's criminal law committee.

There are five 'non-negotiable principles' before any Society endorsement is offered: freedom of choice; adequate funding; equality of arms; guaranteed independence; and absolute transparency on the service's true costs.Of more immediate concern is the question of the advertisements themselves and, in particular, the invitation for candidates to bring their own client base or criminal defence team.

Mr Fowler calls this approach both 'alarming and insupportable'.The Law Society is currently taking advice on whether the effect of the campaign is anti-competitive.

President Michael Napier, in his recent conference speech, reckoned that practitioners in this area, when faced with the lure of salaries as high as £50,000, would be tempted to 'jump ship'.

'What will the competition lawyers have to say?' he asked.Brighton is the home of criminal law specialist firm Wedd Daniel and of former CLSA chairman Steve Wedd.

At this practice assistant solicitors of up to five years' post qualification experience are paid between £25,000 and £30,000, with 'no treats - just a basic salary and a pager'.

So what is likely to happen if an SDS office opens up Brighton offering £35,000, he asks?A common theme in responses to the consultation process earlier in the year was scepticism about how the new system would introduce any real cost savings.

Peter Binning, a committee member of the London Criminal Courts Solicitors Association, sees little scope for economising in a service which adopts 'the costs and capital investment that the private services is currently bearing for them'.Many commentators are mindful of another less-than-glorious nationalisation in the criminal justice system - the Crown Prosecution Service (CPS).

According to Mr Binning, a former crown prosecutor, the problem with working for public organisations such as the CPS is that 'the professional integrity of the individual lawyer' is subsumed to the organisation's priorities.

He adds that a public defender service already exists in the guise of defence solicitors operating under a franchise.

Creating the SDS, he says, 'doesn't seem to make much sense'.So, why is the government introducing the SDS? 'Simple political dogma,' is the blunt response of Rodney Warren, chairman of the Law Society's access to justice working party.

He reckons that it is 'the clearest indication' that the powers that be fail to understand the crisis that has befallen criminal defence solicitors in recent times.'We are now surviving on 50% of the money in real terms that we had in 1992,' he declares, adding that lawyers in this field exist on an hourly rate which is £7.50 below that of the average £50 per hour rate of a car mechanic.Certainly, the launch of the SDS is set against the backlog of an increasingly fraught dialogue between the profession and the LSC regarding the rates that solicitors will be paid under the new contracting arrangements.

The relevant page in the draft criminal legal aid contract is blank, to the fury of practitioners.The Law Society has taken legal advice from London law firm Kingsley Napley on the draft contract.

Mr Warren says the Society is actively considering all options to protect the position of beleaguered crimina l law solicitors.

And that includes legal advice as to the fairness of the contract and 'an invitation to the court to review the procedures that the government is adopting'.Mr Sinclair suspects that the commission is being 'economical with the truth' over its reasons for delaying the implementation of the contract until April next year when the SDS is also launched.

The spectre of the public defender gives the government a greater bargaining power.

'So, if in future we don't play ball, they'll say the public defender is there,' he says.A chief concern for the CLSA is that there is a level playing field between public and private sector work to make a true comparison.

To this end, the group has put together a non-exhaustive list of costs with 34 headings covering everything from salaries and lighting costs, to the notional interest on setting up the offices.'I know that there is a lot of suspicion out there among private practice,' says Richard Collins, head of the Criminal Defence Service.

But he adds that he and his colleagues are seeking to identify the 'real cost' of defending a case.

'I can't make them believe me - but we are doing as much as we can to address this point.'Mr Collins insists that he has no intention of running a service that 'skews the results in any way'.

He is currently interviewing for the six public defenders and says his time will be accounted for in the assessment of the pilots.Money grumbles aside, there are objections in principle to the public defender scheme.

'The state arrests, prosecutes and sentences individuals involved in the criminal justice system,' the CLSA argued in its response to the consultation.

'For the state to purport to defend that individual will allow a breeding ground for miscarriages of justice.'Certainly Mr Fowler is anxious about the development of a 'canteen culture' where deals are struck between crown prosecutors and public defenders over a coffee in the morning.

Both lawyers would be on a salary and a pension, he argues, and neither would want to rock the boat.Richard Miller, acting director of the Legal Aid Practitioners Group, points out that clients are suspicious enough of the independence of duty solicitors even though they could be their 'own solicitor on another night'.Like other commentators, he was struck by the government's assertion in its consultation paper that there was a 'mismatch of objectives' between the Legal Services Commission and private practice.

Apparently, according to the LSC, the problem is that independent lawyers 'seek to maximise the price received for their services in order to maximise their profits'.Surely that is a statement in favour of the nationalisation 'pure and simple', Mr Miller argues.

He also points out the such an argument does not sit comfortably with New Labour's enthusiasm for privatisation in other areas - for example, air traffic control.Commentators have been watching the progress of Scottish Public Defender Solicitors Office, which is two years into a pilot project and currently has five solicitors working from its Edinburgh office.According to its director, Alistair Watson, the biggest problem for the office was the compulsory referral scheme requiring those defendants born in January or February to be represented by the office.Helena Kennedy QC memorably condemned the scheme as 'justice by star sign' and it was scrapped in July.

'There is no compulsion now - people have complete choice,' says Mr Watson.

But the issue has over-shadowed the project and he argues that it led to the Scottish Law Society's entrenched opposition to his job.He was disappointed with the approach of the Scottish society and contrasts it with Chancery Lane which, although 'obviously sceptical and fearful', was more open-minded.

He reckons that his critics have failed to distinguish between the concept of a public defender from the short-term policy of restricting choice.Mr Watson is an enthusiastic advocate of the concept of public defence and backs a mixed model where public sector and private practice co-exist.

'The inherent dangers in either system are potentially counter-balanced in a mixed economy of the two,' he contends.

'Most of the problems with either system tend to come from the fact that they operate in a monopoly.'To what extent that happens on either side of the border remains to be seen and lawyers remain unconvinced.

So, would Mr Sinclair ever consider sending his CV off to the SDS? ' If I want to do criminal law in ten years I may have to,' he replies.Mr Wedd says that he would not 'on principle'.

But he adds quickly that - 'as a pragmatist' - it is hard to resist the money, the pension and leaving the office at 5.30 on the dot.JON ROBINS LOOKS AT THE TRIBULATIONS OF THE PILOT PUBLIC DEFENDER SOLICITORS OFFICE IN SCOTLANDAs the Legal Service Commission continues interviewing for the first six public defenders, north of the border the Public Defender Solicitors Office (PSDO) has been up and running for two years.The pilot initiative reports next month to the Scottish Executive and a decision as to its long-term future will be made two years after that.'The biggest problem in the first year was the very strained relationship between this office and local private solicitors,' says Alistair Watson, director of the PSDO, which currently employs five solicitors.

The situation has 'improved immeasurably' since the compulsory referral scheme was abolished in July.

It had required that defendants born in a specific two-month period of the year were represented by the office.The freedom to chose a legal representative has been identified by the Law Society of England and Wales as one its chief concerns about the Salaried Defence Service.

Mr Watson comments: 'It's a bigger deal for us as solicitors than for a lot of clients who in a lot of walks of lives - like with the National Health Service - accept that they are sent in a particular direction.'Solicitors in England and Wales are concerned that the experiences of the public defender will be used to peg their rate of pay.

'I don't think there is any point shirking from the fact that it will provide information for those who regulate costs,' he says.

However he acknowledges that the office, with a staff of five solicitors, is unlikely to deliver massive savings in its pilot stage.According to Mr Watson, the 'bottom line' is that the PDSO is a non-profit making organisation which offers different focus to the independent lawyer.

He argues that the role of a public defender 'almost creates a business pressure' to address ways of assisting clients in terms with their problems.

He cites the work his team does with a voluntary organisation to help the unemployed back into jobs.'I'm not a social worker, and it's important that we as solicitors don't pretend to be social workers,' he says.

'But nonetheless we're people with a confidential relationship with a client group and often the only people aware of the problems some of them have.'