Legal aid practitioners may refuse work if it threatens the viability of their firm, the Law Society has said. The advice appears in a practice note published today reminding solicitors that only duty work is obligatory.
Chancery Lane notes that the role of criminal legal aid solicitors is critical for ensuring that anyone accused of wrongdoing has a fair trial. Solicitors attend police stations at any time, day or night, under the Legal Aid Agency's duty rota scheme. However, remuneration rates have not increased since 1998.
James Parry, chair of the Society's criminal law committee, said: 'The reduction in funding for criminal legal aid work has created a situation where many solicitors are increasingly required to undertake work that is unremunerated or carried out at a loss. This presents a serious tension between continuing to undertake legally aided work and obligations to provide a proper standard of service to their clients or to conduct business in a financially sustainable manner.'
'As a result firms must carefully consider each instruction, in particular as to whether to accept or refuse such instructions will be contrary to their professional obligations.'
The practice note states that, under the General Criminal Contract 2017, providers can offer publicly funded criminal defence services in addition to those that must be provided by firms with duty solicitor obligations.
It says: 'Whilst potential clients seeking criminal defence services must be fully and properly informed of the availability and eligibility criterion of the legal aid scheme there is no mandatory obligation that requires a contract holder to offer to undertake work under a legal aid scheme provided that instructions are rejected on an appropriate basis.'
Rejecting instructions on the basis that undertaking that work was not properly remunerated or could not be properly resourced given the available funding under the legal aid scheme is compliant with SRA principles, the note states.
'It is a matter for firms and their compliance officers to establish the nature of the work that is not properly remunerated under the contract, and it is likely that such assessments will vary according to location and nature of the firm concerned and will need to be revisited at least annually or whenever the contract is varied,' it adds.
To determine whether work as a court-appointed advocate is properly remunerated and, therefore, accepted, a solicitor should take into account that the work is not remunerated under the General Criminal Contract. The work will be subject to tax and paid from central funds in circumstances where there is no guarantee that the claim for work done will be paid in full or at all.
Parry said many solicitors' practices undertaking vital work in communities around the country are struggling to survive. 'Persistent cuts to rates can create a situation for providers where work cannot be carried out to the requisite professional standards without undermining the financial stability of providers,' he said.
'We recognised that solicitors need help in identifying circumstances which may warrant a refusal to undertake legal aid work and in doing so to ensure compliance with the Solicitors Regulation Authority's code of conduct.'