“Delivering more for less versus elivering less for less versus giving up legal aid work …”
Back in the 1990s, when I was a partner in a firm in Greenwich, I remember the incredulous tone in our accountant’s voice when he discussed our modest profits. He was charging us £200 per hour and asked why we were working for legal aid hourly rates of £50–£70. The firm survived as long as it did because salaries and drawings were modest. Generally, as equity partners, we managed to pay drawings but if there was no money, there were no drawings.
Fast forward to 2011, when we received this email from a partner in Cumbria: ‘This firm has already given up family legal aid work and when I retire in 2012 we will also be giving up our crime contract. I have enjoyed practising criminal law and can only express my gratitude to my partners who have continued to indulge my predilection even as remuneration rates have sunk from mean to ridiculous … [A]s senior partner, doing what I consider to be important work affecting the liberty of my clients, I am paid at roughly one-third the hourly rate that my partners are expected to achieve [and] I cannot disagree with [their] unanimous view that this is unsustainable.’
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was a game-changer. Not only were large numbers of clients to be turned away because of scope changes, but as DG Legal’s Matt Howgate says: ‘The civil legal help fixed fees were based on average case lengths sampled in 2005–06. Those cases were based on pre-LASPO scope and the associated mix of case types. Post-LASPO, the very basis of the data that underpinned legal help fixed fees must have changed. Logically, the fixed fees should have been re-cast to reflect the post-LASPO scope and case mix of each category but this didn’t happen.’
‘Arguably, changes brought about by LASPO rendered the fixed fees potentially wholly insufficient for the remaining in-scope legal help cases (or maybe not if, in fact, what was left in scope reflected only the shorter legal help matters) but no legal proceedings happened.’
A partner at a Birmingham firm told us in 2015: ‘Sadly, we have decided to give up all legal aid work. We will very much miss representing people from the local community. Sadly, we have come to the view over the past couple of years or so that it is virtually impossible to give legally-aided clients a comprehensive service within the constraints of public funding.’
This year, I asked a respected family practitioner why she had stopped doing legal aid work. ‘As a literally sole practitioner, I have found the strain of creating and updating an office manual and keeping up with all the Legal Aid Agency [LAA] requirements quite disproportionate and unnecessary, given my experience and commitment to my work.’ She also referred to panel membership as being time-consuming.
One fee-earner told us: ‘I ended up spending as much time fighting for funding as I spent trying to pursue the opponents.’
In evidence to the Bach Commission, criminal practitioners spoke of the unremitting difficulties in making defence work financially viable. Hull firm Williamsons’ Bill Waddington, former chair of the Criminal Law Solicitors’ Association, said in evidence: ‘The sad reality … is that if I wasn’t the senior person there, I would imagine that there would be pressure from other partners: we really don’t need to do crime because it is costing more in overheads for very little return.’
While partners and managers bear the brunt of juggling finances and decision-making, it affects others as well. An anonymous fee-earner told us: ‘I started off in benefits and debt, as a paralegal/fee-earner for two years, then during my training contract I worked in housing and employment. I qualified working on the Civil Legal Advice telephone discrimination contract.’
‘I watched full teams of people, who were doing crucial work to help their communities, lose their jobs … [T]he skills they had were lost as well, particularly in welfare benefits. Working on the discrimination contract, I ended up spending as much time fighting for funding as I spent trying to pursue the opponents.’
‘In the end, it became clear that if I wanted to provide the best quality of advice possible, and work without the threat of further funding cuts and concomitant job insecurity, I would have to move on.’
Bill Montague of Reading firm Dexter Montague is a former chair of the Legal Aid Practitioners Group and was a long-serving member of the committee. ‘Over 25 years after setting up as a community legal practice, we felt forced to give up civil legal aid due to unremittingly poor pay. The effects of LASPO in reducing scope and eligibility, and an overly bureaucratic, adversarial culture at the LAA didn’t help but, fundamentally, we could find no way of covering the cost of providing a proper service. We don’t feel that we gave up legal aid; the politicians and administrators running legal aid gave up on us and the community we serve.’
It has never been easy to run a legal aid practice, whether private or not for profit. It was not easy in the 1990s, but a mixture of issues has made it more and more difficult. It is easy for politicians to talk about getting more for less, but what happens when people have to deliver less for less (which may well conflict with lawyers’ professional responsibilities) or simply give up? The lawyers can find jobs elsewhere. Where will the clients go for advice and representation?
In my next column, I will look at the documented evidence about reduced numbers.