As the Law Society tells practitioners to refuse work if it is uneconomical, is it time to revisit the issue of funding criminal defence work?
Legally Aided Criminal Defence Work
Yesterday the Law Society issued a practice note which reminds the profession that it does not have to undertake work which threatens the economic viability of the firm. Legal aid rates from criminal defence work have not been increased since 1998, that is nearly 20 years, and the Society is now advising members to take a more robust approach to accepting publicly funded work.
James Parry, chair of the Criminal Law Committee is quoted in the Law Society Gazette:
‘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.’
Difficulties with Legally Aided Criminal Defence Work
Yet the difficulty with many cases, especially those in the Crown Court is that it is only as the case progresses that it becomes apparent that the fee payable to the defence is going to be so low that the firm wishes it had not taken on the case in the first place. This may be due to a particularly low page count, high levels of defence enquiries (unused material) or a case that is fully trial prepared and which cracks unexpectedly meaning the anticipated trial fee is not paid. Sometimes it can involve a combination of all three factors and the solicitor is left to calculate an average hourly rate that is so pitifully low that they might have earned more on a busy night working for Deliveroo.
Sometimes geography is a factor. How many practitioners in Manchester would represent a shoplifter facing a trial in the Magistrates’ Court in Cornwall? Yet if the client lives in the north he may struggle to instruct a lawyer 300 miles away. He becomes unrepresentable at legal aid rates.
Can any firm survive undertaking legal aid work alone? Is it possible for defence practitioners to take a swings and roundabouts approach where all cases are undertaken and the more lucrative cases subsidise the loss leaders?
Privately Funded Criminal Defence Lawyers
At Olliers a number of our senior lawyers undertake a very limited amount of publicly funded work. Other fee earners will carry a mixed caseload of privately funded and legal aid cases. We may suggest a client in another part of the country seeks local representation. What we don’t yet undertake is a procedure for the assessment of cases whereby we calculate the profitability of a case before agreeing to act.
Law Society Practice Note
The Law Society seems to be making it fairly clear. We have always known that taking on any case has never been compulsory. Yesterdays practice note serves to remind practitioners that they are not charities and that we all have businesses to run. Without our businesses functioning profitably we will be no good to any of our clients.
Matthew Claughton – Specialist Criminal Defence Lawyer
Written by Matthew Claughton. Matthew specialises in defending allegations of fraud, serious crime and sexual offences. He is often asked to act for clients during the investigation stage of the criminal process and frequently involved in preparing representations against charge. Matthew also acts for clients interviewed by the Serious Fraud Office under section 2 of the Criminal Justice Act 1987.