The Law Society of England and Wales has published guidance to help firms decide whether they can continue to provide criminal legal aid work after stating that ‘goodwill has run out’.
“The dedication of criminal legal aid lawyers has allowed successive governments to paper over the cracks and avoid the hard decisions that need to be made about our criminal justice system. That goodwill has run out,” said incoming Law Society president Richard Atkinson.
“We can no longer ask firms to hold on in the hope of action from government that may never come. We have gone beyond a system that is based on goodwill, and now it is at the limits of financial viability.
“We recommend firms examine the viability of each type of criminal legal aid work they undertake to decide if they should scale back or withdraw altogether until there is meaningful action by the new government.”
In November 2023, the society issued a practice note to help solicitors identify the circumstances in which it may be appropriate to refuse to undertake legally aided police station work and advice, representation and advocacy at court.
Such decisions raise issues of compliance with the Solicitors Regulation Authority’s Code of Conduct (the SRA Code) and the Legal Aid Agency’s (LAA) Standard Crime Contract with firms.
Although the 2023 practice note still reflects our view of good practice, there have been several significant developments since then and the society said they have ‘considered there are certain circumstances in which firms should scale back services as a result of a viability review, if they are not to be withdrawn altogether.’
The new guidance states that there are options for ‘scaling back to help ensure firms’ short-term viability’.
The guidance suggests that scaling back duty solicitor work in police stations, firms should now actively consider withdrawing the provision of advice and representation at police stations to the specified minimum of 90 per cent of prospective clients referred by the Duty Solicitor Call Centre (DSCC) to solicitors on a rota if accepting more referrals means the number and timing of attendances will lead to breaches of the SRA Code (for example, because services cannot be provided in a competent and timely manner to new or existing clients or to both and ceasing to use self-employed agent solicitors and accredited representatives to cover their duty solicitor slots whenever their own duty solicitors are unable to supervise such persons ‘adequately’ because of their professional obligations under the SRA Code or the WTRs 1998.
The Law Society suggests: “The reason we say firms should actively consider scaling back or withdrawing services in these circumstances is that continuing to provide them either breaches professional conduct requirements in the SRA Code, or legal requirements, or both.
“However, we consider that firms’ obligations under the SRA Code should always take precedence over the Specification KPIs in the event there is a conflict.
“Firms cannot contract out of their professional or statutory duties and, in any event, clauses 7.14 and 7.15 of the Standard Terms state in strict, mandatory terms that firms “must comply with all relevant legislation” and “must comply with any Relevant Professional Body rules”.
“The Specification and Standard Terms frame the supervision requirements in that way too. Again, we consider they take precedence over KPI compliance.”
The guidance set out says that firms may now also wish to consider scaling back duty work in police stations by refusing to “accept and deal appropriately” with up to 10 per cent of “communications from the DSCC for Police Station Advice and Assistance” when one or more of their solicitors are “the allocated Provider on a Duty Solicitor Scheme Rota” because KPI 2 of the Specification will be met if 90 per cent of such communications are accepted and dealt with, carefully considering the limits of the “reasonable endeavours” they must take to contact a new client within 45 minutes (in person or by telephone) when first notified they have been arrested and have sought advice and one of their duty solicitors has accepted the new client’s matter.
That attending at police stations to provide advice and representation only within, and at, a reasonable time, as no specific time frame is given for attendances and refusing to accept panel and back-up matters referred by the DSCC when doing so would involve unreasonable endeavours bearing in mind the circumstances of the individual duty solicitor, the timing, travel distance and remuneration for the attendance: see clause 9.49 of the Specification which only requires firms to use “reasonable endeavours” to accept panel and back-up matters.
Firms could also consider refusing to accept ‘own client’ referrals.
On scaling back duty solicitor work in magistrates’ courts, firms’ options are more limited due to the drafting of the relevant parts of the Specification, says the new guidance.
“Further, clause 10.15 of the specification of the Standard Crime Contract 2022 provides for the assignment of a court duty solicitor as a court-appointed advocate under section 38(4) of the Youth Justice and Criminal Evidence Act 1999.
“It requires the duty solicitor once appointed to undertake the work “unless there are exceptional circumstances that prevent them from doing so”.
However, the advice of the Law Society is that firms should now actively consider declining to provide advice, representation and advocacy services listed in clauses 10.7 and 10.8 of the Specification in magistrates’ courts in duty slots allocated by the LAA and clause 10.15 advocacy if providing such services will lead to breaches of the SRA Code (for example, because such services cannot be provided in a competent and timely manner to new or existing clients or to both).
Firms should also consider declining to undertake work that goes beyond the letter of the duty solicitor rules (and is therefore in effect unpaid), according to the guidance.
The Society say: The reason we say firms should actively consider scaling back or withdrawing services in these circumstances is that continuing to provide them either breaches professional conduct requirements in the SRA Code, or legal requirements, or both.”
On scaling back all other new work in magistrates’ courts and any Crown Court work, firms must refuse to accept it if it would lead to SRA Code breaches, suggests the guidance, also saying there is no obligation in the Standard Terms or Specification to offer a comprehensive service.
“Firms can also scale back other new magistrates’ court and Crown Court work selectively, including on the basis that taking certain categories of new case is impractical because the levels of remuneration will undermine their viability.
“We recognise that scaling back in this way is profoundly unattractive to firms that would provide a comprehensive service if one was properly funded.
“However, in rejecting CLAIR’s recommendations, the former lord chancellor has chosen not to fund services in that way.
“Options for firms include identifying those categories of case: that are remunerated by the LAA in a way that means firms can only take them at a loss, or making profit at a level which will undermine their viability, and deciding against taking such cases unless there are exceptional reasons to do so, and for which firms can realistically provide only a preliminary service to new clients before referring them on to the PDS because other work means the firm cannot continue to provide the work that is necessary within a reasonable time and taking cases in those categories on this basis,” the guidance states.
Following a viability review, firms may decide they need to withdraw certain services altogether, says the Law Society’s new guidance.
Typically, when firms withdraw from duty schemes, the LAA allocates their slots to the firms remaining on the scheme.
Where this is impractical or could lead to a breach of the lord chancellor’s Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) duties, the LAA often merges the scheme with a neighbouring one.
This increases the number of duty solicitors hypothetically available, but also increases average travel distances to police stations and magistrates’ courts.
Where firms in neighbouring areas have resisted this, the LAA has sometimes converted rotas into panels, or relied on one or two firms to cover all the rota slots.
The main options for withdrawal are: to propose amendments to the Standard Terms relying on clauses 13.13 and 13.14 which, if agreed by the LAA, would limit the work firms would be obliged to undertake in future, either by category of case, type of service or volume, withdrawal from duty rotas and so taking only new ‘own client’ work. It must be ensured that all Duty Slots allocated to you (in respect of both Police Station and magistrates’ court work) are covered by you. If you are unable to meet this obligation, you must notify us that you no longer require the slot so that we may reallocate it to another provider”; and withdrawal from legal aid work altogether by giving three months’ or more notice under clause.
As above, the LAA and MoJ should be informed of any withdrawal and the reasons.