Procuring criminal defence services . Is there a better way? A response on behalf of The Society of Asian lawyers. Black Solicitors Network Society of Black Lawyers The Association of Muslim Lawyers Btitish Nigeria Law Forum Turkish British Legal Society
Introduction The response to the Law Society’s consultation paper is drafted on behalf of the organisations listed above. Sundeep Bhatia is the current secretary ,and a former Chairman of The Society of Asian Lawyers. The Society of Asian lawyers was founded in the early 1990s and seeks to promote Asian lawyers from all backgrounds as well as protecting the rights of the communities which we all serve. The Society also seeks to promote diversity within the professions as well as educating its members and arranging social functions. Sundeep is also one of two Law Society Council Members representing the Ethnic Minority Constituency. The views expressed In this response do not,, in any way ,reflect Law Society policy and should not be taken as so doing. They are ideas intended to influence Law Society Policy and to require it to adopt policies that do not undermine diversity within the profession.
Sundeep has been a criminal defence lawyer since 1994. He has ,during that time , run his own criminal defence practice ,Brent Law Practice ,which held a VHCC contract. Sundeep has been a Court Duty and police station duty solicitor since 1995 and gained his criminal Higher Rights Of Audience in 2004. 1 Have we identified the problem is correctly? We the aforementioned groups are concerned at this consultation paper. The Law Society of England and Wales represents all solicitors whether they be newly qualified, employed, sole practitioners or large city firms. Anyone reading this consultation paper would conclude that The Law society only represents the interests of large firms and is unconcerned by the fact that many of these proposals would mean that Diversity within the profession would be decimated. The paper speaks in disparaging terms about sole practitioners. Many of those sole practitioners are from black and Asian minority ethnic communities. The Law Society’s latest figures ( Trends in the legal profession) indicate that more than half of Black and Asian Minority Ethnic solicitors are to be found in firms of five partners or less. Many of these firms cater for the needs of their local communities. They give those communities access to justice. They have a unique understanding of the culture and language of those communities Yet the consultation indicates that the Law Society is quite prepared to see these small firms washed away . Moreover we are also concerned that the Consultation paper suggests that Price Competitive Tendering is workable if a suitable model is adopted. We do not see any model of Price Competitive Tendering as being acceptable or feasible. Any model would involve a reduction in choice,a reduction in professional standards and Justice only for those who can afford to pay. Any form of PCT is likely to lead to miscarriages of Justice such as those of The Guilford Four and Birmingham Six in the 1970’s.. We have no wish to see a few large solicitors firms exploiting the rest of the profession, at the expense of quality and diversity.That would be as unpalatable as bodies such as G4S and Stobart Barristers being in a similar position. The Society contemplates a future where criminal solicitors lose their status as a result of the proposal to severe the relationship between individual Duty solicitors and Duty slots. The proposal to remove the link between individual Duty Solicitors and Duty slots would lead to a substantial reduction in wages for the majority of Solicitors undertaking criminal defence work around the Country although it may be good news for some firm owners. We do commend The Law society for fighting for those arrested to have a choice of representation.However we do not wish to see mechanisms in place which merely allow large firms to expand at the expense of smaller firms (thus disproportionally affecting BAME firms and Solicitors).
2 Do you agree that allocation of duty slots should no longer be based on the number of duty solicitors a firm has, and in breaking the link between numbers of duty solicitors and slots? The destruction of the link between individual duty solicitors and Duty slots would reduce the status and prospects of many thousands of professional highly skilled solicitors. If there are abuses in the market such as firms being allocated slots they are not entitled to then The Ministry of Justice take steps to curb those abuses rather than cutting the link between Duty Solicitors and Rotas. The current system ensures that Duty Solicitors take ownership and responsibility for the slots even if representatives are sent to the Police Station to do less serious cases. That is because the Duty Solicitor makes the initial telephone calls and determines whether he or she should cover the case or whether the case is such that a representative can be sent out. The status of Duty Solicitor also means that the solicitor has a level of competancy which allows him or her to look after the needs of those ,at the Police station who do not have existing representation. Breaking the link between Duty Solicitor and slot would mean that their would be little financial incentive for anyone to achieve that status. The desire to get rid of the neighbouring borough system is put forward in order to allow Large firms to obtain a greater market share at the expense of smaller local firms offering local services to local communities. The neighbouring borough principle makes it easier for defendants to seek out local legal advice rather than having to travel dozens of miles away from their place of residence. The money saved by “decreasing the emphasis of Duty work” would inevitably reduce the living standards and conditions for many tens of thousands of solicitors and would play a part in signalling the death of local community based justice. Such a reform would cause a mass exodus from the profession.Few Solicitors would choose to qualify in such work which already involves antisocial hours and low wages. This reform would disproportionally affect small BAME firms and the solicitors working in them.It is therefore opposed. The Law Society,at this part of the paper blames the number of Sole Practitioners on firms going out of business and fragmenting whilst individual solicitors set up their own firms. That is not the full story.Many BAME solicitors set up their own businesses as sole practitioners because they have hit glass ceilings in existing firms. They therefore set up as Sole practitioners in order to advance their careers.
4 Would you support greater use of peer review as a quality measure? Yes.Solicitors are the best Judge of Quality of work of other solicitors.
5 If peer review were to become routine once more, what is your view on the appropriate relationship between peer review,CLAS and QASA? It could make those costly schemes redundant because the requirement for quality control would be met by way of peer review.
6 To what extent could these schemes be used for comparing between firms as opposed to being used as thresholds that all firms must pass? That depends upon the scheme which is adopted.
7 Do you agree that it would not be appropriate to post any threshold criteria by reference to QASA?Yes 8 Do you agree that in the event of the government introducing a selective process, a firm with one level 3 advocate should be given credit over a firm that does not?no We believe that Firms should be free to organise their advocacy services in any way that they desire. They should therefore be free to select whether they have in house Solicitor advocates or whether they choose to use the services of the independent bar. Just because a firm has an in-house barrister at level 3 does not mean that it offers a better quality of service then a firm which uses the independent bar at level 3. 9 Do you agree that basic experience of the main categories of work should be a minimum threshold requirement? Yes. However the paper makes reference to experience of Crown court trials. Is that as litigator or as advocate or both? In relation to a solicitors firm the answer should be litigation preparation for Crown Court trials. 10 Are there any other types of experience that should be required as part of the threshold? No. The other areas are specialist areas which would involve low volumes of work. Those areas should therefore not be used to differentiate criminal firms so far as threshold is concerned.
11 In the event of the government introducing a selective process, would you agree that broad experience is a legitimate factor by which to distinguish between firms?no. This would not be appropriate In most areas the ability of a firm to do VHCC work will be irrelevant so far as a quality service is concerned. The important factor is how good they would be at conducting the usual day-to-day work of a criminal firm at the police station, magistrates court and routine criminal cases at the Crown Court. There are so few VHCC cases in any event.This would only give an advantage to Larger firms ,who tend to conduct such specialist work,at the expense of small firms .
12. What types of experience should lead to a firm gaining additional credit in the event of a selective process?
13 Do You agree that being registered to take training should not be a threshold requirement of any forthcoming tender process? Yes
14 In the event of the government introducing a selective process, should a firm that is registered to take trainees be given credit over a firm that is not? This would be a good move for the future of the profession. However one must take into consideration that ,given the recent SRA decision ,firms are able to take on trainees at the national minimum wage.
15 Should further credit be given to a registered firm based on the number of trainees it has actually taken on, and if so, over what period? No. This would benefit existing large firms at the expense of smaller firms. It would thus disproportionately affect BAME firms.
16 Do you believe that in principle there should be a minimum contract size? No.We do not agree with this because such a move will,by its very nature,disproportionally effect Black and Minority Asian Law Firms. 17 Would you support a minimum contract size based on this mechanism? No. See answer to question 16.
18 If a minimum contract size work to be set on this basis, at what level should it be set? We are against a minimum contract size but if one were to be imposed ,then it should be at a level no higher than £100,000 per annum and smaller firms should be given time and assistance to forge alliances and amalgamations which will allow them to continue in practice as larger combined units. This would,if handled properly,mitigate some of the damage to Diversity within the Legal profession caused by Price Competitive Tendering.
19 If a minimum contract size is introduced should there be different levels set in London and outside? There should be no different levels in London from the rest of the country. In remote rural areas with a low supplier base provisions for minimum contract size would have to be relaxed to ensure coverage. 20 Should any minimum be set at office level or firm level? Any minimum should be set at office level.If at firm level then it would allow several larger firms to monopolise the market by expansion at the expense of many local firms catering for the needs of their communities.
21 Would you support a minimum contract size based on this mechanism? No.
22 If this mechanism were introduced, what should be the smallest number of slots for which a firm could bid? We do not accept this proposal. However If it were introduced it should be as small as possible to allow smaller BAME firms to compete and bid..
23-26 Do you think that’s a tender could work based on blocks of police station cases? That depends on the price per block. If the administrative price is set too low then it would not work. The likelihood is that firms will bid for more than 100% unless the government was only selling a specified number of blocks of a certain percentage. If that were the case then smaller BAME firms might be excluded from the market.
27 Would you support a requirement that firms should be asked to provide evidence of capital available to support their date and all approval of the business plan by their bank? That certainly makes sense if price competitive Tendring were to be adopted against our recommendations
28 What other measures could be used to protect firms from unrealistic ” suicide bids” by others? 29 Do you think there should be a Maximum bid size in each big area?Yes 30 Do you think that there should be a minimum number of firms per area? Yes we believe that there should be a minimum number of firms per bid area for the following reasons. A It is unhealthy for any one firm to be dominant in any one area. B There needs to be a sufficient number of firms to deal with instances of conflict of interest between co-defendants. C A minimum number might allow locally based community firms to remain in existence. 31 Do you agree that there should be some sort of cap to guard against excessive expansion? Yes. 32 If yes do you think the above proposal to limit expansion by means of the selection system within the tender process would work? No. There is no reason why new entrants to the market should be prejudiced . 33 What other means might be used to ensure some protection against excessive expansion? The existing system of neighbouring Boroughs. 34 Do you agree that capacity should be measured in the above way, via the allocation of points per duty solicitor/accredited rep? That would be one means of keeping the existing desirability of employing persons with a duty solicitor or accredited representation qualification. However such a measure would also give an advantage to larger firms at the expense of smaller firms many of whom will be BAME owned. On balance we therefore feel that the idea of using the business plan as a means of deciding whether a firm has adequate staffing is the more appropriate suggestion. 35 Do you believe that that should be required to undertake all work, rather than being committed to cherry pick a higher level work and the biggest cases? Yes. 36 Do you believe that very high cost cases should be treated differently? If so, how should these cases be handled? We accept the suggestion that all firms with a contract should be allowed to deal with VHCC cases if they feel that they have the resources required to handle such a case. If they feel they are unable to deal with such a case then they should be permitted to pass that case on or subcontract it without being in breach-of-contract. 37 Do you believe that the retention of work in house rather then using agents would tend to assure a higher degree of quality? No. That depends on the quality of the agents which are used. All firms should be free to run their organisations without administrative restriction. This is especially so in circumstances where fees are already low and are likely to be reduced by at least 20% .The restriction on agents would also prejudice part-time workers such as mothers with children who more likely to do work as and when required ,for different organisations,rather than being employed by an organisation. . Furthermore the use of agents allow smaller BAME firms a chance to compete in the market.
38 Would the suggested mechanism for such a provision work? No. The flow of work in criminal defence work is unpredictable. The number of cases handled by a firm is not constant. There will be times when organisations would need to use agents more than 20% of the time. The suggested mechanism is therefore unfeasible.
39 If a provision requiring work to be retained in house work to be introduced, what level of work conducted by agents will be necessary to ensure reasonable flexibility to cover stop at absences and emergencies? Please see the answer to question 38.
40 If such a measure were to be introduced, should advocacy be included, handled separately or excluded from any such provision? Advocacy should be excluded from any such provision. This is particularly so if own client work is to still be a reality. Firms will need to instruct agents at courts further afield or in cases of overnight emergencies which are a regular occurrence for established law firms. Furthermore we believe that firms should be free to outsource advocacy or keep it in house ,as they wish, provided that quality remains constant.
41 Could such a measure be used as a way of selecting between providers rather than as a fresh of requirements, by giving preference to those fans retaining more work in-house? Please see the answer to question 40. 42 Do you believe that the VHCC and higher and higher end crown court cases would be suitable for a tender process? This makes more sense than with lower end work. However we would advocate that all firms,holding a criminal contract, should be allowed to tender for such cases.
43 If yes do you think the process outlined above is appropriate for such a tender? Yes. 44 If not, what other means of tendering such cases would you suggest? Not applicable. 45-47 Do you agree that criminal legal aid should be provided as a loan, to be repaid at the end of the case? We have reservations regarding this idea. Most defendants accused of committing criminal acts would not have sufficient means to repay such a loan. In the event of someone accused of a crime, for the first time, the ability to repay the loan is another cause of worry and concern.
Furthermore if a defendant were to be found not guilty of the charges against them then the loan should be written off in its entirety. The problem here it is also that such a loan system is likely to be expensive to run and it’s administrative costs could make it unviable. 48 -51 Do you agree that a system of top up fees could work? This goes against the philosophy behind legal aid . It would create clear barriers between those who are able to find the top up fees and those who are not. It would create inequality of provision within the Legal Aid system dependent upon the ability to pay. Someone who could afford to pay a top up fees is likely to receive a superior service to someone who could not . It could also, among some less scrupulous legal professionals, lead to then putting pressure on clients to pay top up fees in circumstances where they may not be essential.
CONTACTS Society of Asian Lawyers – Sundeep Bhatia 07803727534 Black Solicitors Network – Cordella Bart-Stewart 02083696119 Association of Muslim Lawyers -Ismat Rawat 07852146056 Society of Black Lawyers- Peter Herbert 07973794946 British Nigeria Law Forum Jonathan Akinsanya 07515351731 Turkish British Legal Society Emma Edhem emma_edhem@yahoo.co.uk