SO, NOW THE LAW SOCIETY WANTS ME TO WORK FOR FREE?
Well, no, it doesn't. The Law Society of Scotland actually wants legal aid solicitors to be paid and to expect to be paid for the valuable and worthwhile job they do. But as the Scottish Government secured the passing of the bill that brought about a system of client contributions to be collected by the solicitor, LSS thought that there was a need for guidance on how that would affect the operation of a legally aided system.
LSS was not against the idea that those who could afford to pay a contribution to their case costs should do so. Indeed it would have been difficult to argue against that, especially in a time of fiscal constraint. The line taken by LSS was that in a legal aid system where fee levels were much less than those charged on a private basis, it was incumbent on SLAB to collect contributions centrally and not expose individual practices either to the cost of collection or to the risk of non-payment. The arguments were well made but did not prevail. Where to then?
The law now says that contributions will be assessed as payable in maybe one case in 10, and so LSS says that those contributions should be paid. Surprised? You shouldn't be. Since the introduction of fixed payments over 13 years ago, the fees paid to solicitors in criminal work have not increased; in fact they were reduced with LSS agreement, and those savings would have accounted for an additional £12 million spend on the last full year of accounts.
The idea behind contributions was not that solicitors would be paid less – only that those who could afford to contribute to the case costs should do so. Many remunerated occupations regard themselves as professions. Solicitors remain professionals, but do require remuneration.
In a non-legal aid case, if the client doesn't pay, he or she will not be represented. At the intermediate diet the solicitor will have to confirm that they are not funded – and so not prepared – and, if that situation remains, the solicitor will withdraw. In a legal aid case today, before contributions, if SLAB has not been convinced on merits or finance the position is the same. It should be no different in a contribution system.
Clients need to understand that if the Government says they can afford to contribute, then the solicitor should be paid. LSS expects that practitioners will be paid at the rates set by Government and not at the "net" rate. The integrity of the system demands this. Practices should not invite business on the basis that contributions will not be sought, and solicitors should not proceed to trial on cases where contributions have not been paid. It is that simple. The dangers of anything else should be obvious. None of us wants to be the first solicitor to be the subject of a defective representation appeal on the basis that, as we hadn't been paid, we weren't trying hard enough.
Withdrawal may not be an end to matters. Experience in civil contribution cases suggests that, whatever the history of warning, it is when the certificate is suspended that arrears of contribution are paid. If a contribution is not paid you should fear not the incoming (transferred) solicitor, as they are in the same professional position as you. Though a transfer is in the gift of SLAB, we would expect that, consistent with the aims of the legislation, an unpaid contribution will not be grounds for transfer and, without a transfer, the core fee remains to be claimed – net of unpaid contribution.
And if you aren't paid and proceed regardless? Well, the legal aid contract involves the state, the client and the solicitor, and if the client doesn't fulfil their part that should be an end to it. Carry on at your risk, but if you do so, do so in the tradition of pro bono work and not on some discounted arrangement with legal aid. That is a matter of principle and an essential corollary to the expectation of full payment. Pro bono however presumes a system from which solicitors are, otherwise, properly remunerated, and there are those of us who think that those days are long gone.
The Government has set the level of remuneration in legal aid cases. It is in the interests not only of the profession but also of the public and of the criminal justice system that payment is made in full at those rates. That's what LSS wants.Ken Dalling is a solicitor in private practice, the Law Society Council member for Stirling, Falkirk and Alloa and a member of the Joint Working Group which presented to the Professional Practice Committee on the benefit of revised guidance to the Code of Conduct for Criminal Work.