The Lawyers are revolting !

[detective-boy]

The system is that criminal barristers are paid a set fee on some sliding scales for the work that they do. Solicitors are paid on a separate scheme. But I understand that a lot of their rates are little better than the sort of fees that criminal counsel can get. In terms of the costs of that day, £83 was what it cost the government for my day in court. The solicitors would have got paid for preparing the brief to me and taking a proof from the client, but I can assure you that they would not have got very much.

I would like to see the actual breakdown of the fees paid by the Legal Aid fund and where they actually went. I am sure the system has some misconceptions in terms of how long things take (I have previously posted of how changes in legislation - disclosure is a good example - aren't thought through in terms of impact on either police, prosecution, defence or courts) and if that is a part of the problem it needs to be addressed.

I think there used to be hourly rates paid but that fell into misuse.

What would you consider an appropriate public-funded hourly rate by the way - and what would you command privately / corporately?

 

[teuchter]

What would you consider an appropriate public-funded hourly rate by the way - and what would you command privately / corporately?

@Aylee:

I would be interested to know whether you think there is a good reason why the public-funded rate should be significantly lower than the privately funded rate. From your point of view, it's not as if the work is "easier" in one case compared to the other, or is it?

Would it be true to say that most lawyers would be happy to work for less doing legal aid work because they feel it's for a good cause?

DB seems to have a problem with the idea of legal aid work being as well paid as private work ... I can kind of see why. But from a lawyer's point of view, do you think it's fair to say that the result of maintaining a large difference between the rates would be, generally, that the better lawyers will not do legal aid work because they can earn more doing other stuff?

Also, out of interest, what would you reckon to the idea of all lawyers being obliged to spend a certain proportion of their time dealing with legal aid cases ... would this be a practical system in any way? Is it something that's been proposed in the past?

 

[detective-boy]

DB seems to have a problem with the idea of legal aid work being as well paid as private work ... I can kind of see why. But from a lawyer's point of view, do you think it's fair to say that the result of maintaining a large difference between the rates would be, generally, that the better lawyers will not do legal aid work because they can earn more doing other stuff?

And, if you do, can you explain why exactly the same principles shouldn't be applied to education, nursing, doctors, dentists ... and everyone else, for whom the public sector rates are all lower than the rates charged in the private / corporate sector.

 

[detective-boy]

Also, out of interest, what would you reckon to the idea of all lawyers being obliged to spend a certain proportion of their time dealing with legal aid cases ... would this be a practical system in any way? Is it something that's been proposed in the past?

No-one should be compelled to do anything with their lives. The public sector should seek to provide a good foundation for those who wish to put together a solid CV for future advancement but it shouldn't be compulsory.

 

[aylee]

OK, a number of interesting points raised.

I would like to see the actual breakdown of the fees paid by the Legal Aid fund and where they actually went. I am sure the system has some misconceptions in terms of how long things take (I have previously posted of how changes in legislation - disclosure is a good example - aren't thought through in terms of impact on either police, prosecution, defence or courts) and if that is a part of the problem it needs to be addressed.

I agree with you completely, and this is half the difficulty that the criminal defence bar faces. Sentencing, in particular, has become so complex that it is almost impossible to keep up to date with the Court of Appeal's jurisprudence so as to ensure that the Crown Court passes lawful sentences.

I think there used to be hourly rates paid but that fell into misuse.

Correct, and they've now been replaced with this system of sliding-scale fees that doesn't really reflect the varied complexity of cases. Indeed, one element is the amount of paperwork which you have to read, which has led to some solicitors deliberately copying more than the barrister needs, just so that the barrister can claim a more realistic fee.

What would you consider an appropriate public-funded hourly rate by the way - and what would you command privately/corporately?

This is a bit personal!

I think it's impossible to generalise about publicly-funded hourly rates. For example, if you do two cases in one day on opposite sides of London each lasting half an hour, you need a higher hourly rate to reflect the travel time etc.

My fees on a private basis, when doing work for defendants, are usually £100 to £150 per hour. For court appearances I will get usually get a set fee to cover all preparation, travel and the time in and out of court, plus a 'refresher' for each day after the first that the hearing lasts.

I've no doubt that £100 to £150 per hour seems like a fortune to most people. Out of my fees has to come chambers rent (office costs, wages etc etc), clerks' fees (2% of my fees), expenses (expenses, travel, IT, subscriptions, books etc) and of course income tax and NI. Overall I reckon I probably take home about 40% of the fees I charge. There is also a lot of dead time - I would guess one to two hours a day - which has to be spent keeping up to date with legal developments and admin etc.

Of course this means that I am the luckiest person ever - I get paid very handsomely for a job that I love. I can't defend my earnings compared with people like nurses, doctors, teachers etc, so please don't ask me to!

I would be interested to know whether you think there is a good reason why the public-funded rate should be significantly lower than the privately funded rate. From your point of view, it's not as if the work is "easier" in one case compared to the other, or is it?

Would it be true to say that most lawyers would be happy to work for less doing legal aid work because they feel it's for a good cause?

DB seems to have a problem with the idea of legal aid work being as well paid as private work ... I can kind of see why. But from a lawyer's point of view, do you think it's fair to say that the result of maintaining a large difference between the rates would be, generally, that the better lawyers will not do legal aid work because they can earn more doing other stuff?

And, if you do, can you explain why exactly the same principles shouldn't be applied to education, nursing, doctors, dentists ... and everyone else, for whom the public sector rates are all lower than the rates charged in the private / corporate sector.

In an ideal world, people working in the public sector would get paid exactly the same as someone doing the same job in the private sector. The reality, however, is that public resources are finite. The reason why publicly-funded legal work is coming under so much pressure at the moment is that it's an easy target for government - no-one's going to vote against the government simply because it cut the earnings of lawyers!

I don't think it's right to say that all the better lawyers avoid legal aid work .... I know some awful lawyers who work purely in the private sector and some brilliant ones who do nothing but publicly-funded work. There are still huge numbers of people trying to get into the profession, many of whom wish to do it for the love of the job rather than as a means of making huge amounts of money. It's certainly right that publicly-funded work is not necessarily "easier" by any means.

The real problem is that many areas of publicly-funded practice are increasingly becoming unviable - for example, there are areas of the country where there are virtually no lawyers doing publicly-funded housing work because they can't make a decent living out of it. My concern is that the criminal bar will be squeezed so much that there will be a real shortage of advocates, leading to real injustice for many people.

Also, out of interest, what would you reckon to the idea of all lawyers being obliged to spend a certain proportion of their time dealing with legal aid cases ... would this be a practical system in any way? Is it something that's been proposed in the past?

No-one should be compelled to do anything with their lives. The public sector should seek to provide a good foundation for those who wish to put together a solid CV for future advancement but it shouldn't be compulsory.

It is not something that has ever been compulsory in the UK, although I know that it has been in some European countries (Belgium, for example - a Belgian lawyer took his country to the European Court of Human Rights complaining that it was equivalent to slavery! )

Personally I would be opposed to the idea of making it compulsory, if only because it would mean that you would get a huge number of people who are doing it reluctantly and would probably therefore do a rubbish job. I do quite a lot of free work myself - advocacy work for the Bar Pro Bono Unit and the Free Representation Unit and for an advice clinic where I advise one evening a week.

 

[detective-boy]

I've no doubt that £100 to £150 per hour seems like a fortune to most people. Out of my fees has to come chambers rent (office costs, wages etc etc), clerks' fees (2% of my fees), expenses (expenses, travel, IT, subscriptions, books etc) and of course income tax and NI. Overall I reckon I probably take home about 40% of the fees I charge. There is also a lot of dead time - I would guess one to two hours a day - which has to be spent keeping up to date with legal developments and admin etc.

But that applies to any professional - as a professional investigator I have to pay for a similar long list of things out of what I charge - it's because you are, effectively, a business rather than an employee.

I think there needs to be some root and branch reform of how legal services are provided to the public - if a business set up, paying you and some other solicitors and barristers a "wage" and then taking on legally-aided work would it pay? What would the charges for that work have to be? Would they be in the same ball-park as the legal aid fund's estimates?

The difficulty is that the arcane rules about solicitors and barristers, and employment thereof, get in the way of any such clarity.

 

[teuchter]

In an ideal world, people working in the public sector would get paid exactly the same as someone doing the same job in the private sector. The reality, however, is that public resources are finite. The reason why publicly-funded legal work is coming under so much pressure at the moment is that it's an easy target for government - no-one's going to vote against the government simply because it cut the earnings of lawyers!

I agree with all this. Public resources are of course finite. It's all about getting the level right, so that legal aid lawyers are well enough paid that what they are providing is of a good enough standard. If that level is approaching the level for private work, then so be it.

And it's very true that lawyers are an easy target.

I don't know very many lawyers but almost all those that I do know do it out of love for the job / a desire to contribute something positive, and work on legal aid cases.

Not that this means all lawyers have similar motivation, of course.

It is not something that has ever been compulsory in the UK, although I know that it has been in some European countries (Belgium, for example - a Belgian lawyer took his country to the European Court of Human Rights complaining that it was equivalent to slavery! )

Personally I would be opposed to the idea of making it compulsory, if only because it would mean that you would get a huge number of people who are doing it reluctantly and would probably therefore do a rubbish job. I do quite a lot of free work myself - advocacy work for the Bar Pro Bono Unit and the Free Representation Unit and for an advice clinic where I advise one evening a week.

I can see why there would be problems with a compulsory system, including the fact that some would be doing it reluctantly. But surely isn't that the case now, anyway? Would it be fair to say that there is currently a proportion of lawyers who aren't that great and do legal aid stuff because they can't get much else work, and resent the low pay? (This is just speculation by the way).

 

[detective-boy]

Would it be fair to say that there is currently a proportion of lawyers who aren't that great and do legal aid stuff because they can't get much else work, and resent the low pay? (This is just speculation by the way).

Some of the most competent lawyers I have met have been happy to work for legally-aided cases. And some of the most expensive I have met have been complete and utter fuckwits.

It is over-simplistic (and patronising) to suggest that those doing legal aid work are doing it because they are not good enough to do anything else.

 

[teuchter]

Some of the most competent lawyers I have met have been happy to work for legally-aided cases. And some of the most expensive I have met have been complete and utter fuckwits.

It is over-simplistic (and patronising) to suggest that those doing legal aid work are doing it because they are not good enough to do anything else.

I'm not saying this at all. I'm just speculating that there may a proportion who do it for this reason. And am willing to be corrected.

I myself personally know some perfectly competent lawyers who do legal aid work in preference of other better paid stuff. As I mentioned above.

No way am I trying to suggest that all legal aid lawyers are rubbish. Just that the proportion who aren't that great would be less if they were better paid.

 

[janeb]

I think there needs to be some root and branch reform of how legal services are provided to the public - if a business set up, paying you and some other solicitors and barristers a "wage" and then taking on legally-aided work would it pay? What would the charges for that work have to be? Would they be in the same ball-park as the legal aid fund's estimates?

Sorry, been away for a while so missed the discussion but it's interesting catching up. The set up described above is kind of like the law centre I know, except it operates as a workers co-op and has recently got charity status (following a huge discussion withon the co-op as to if this was the right thing to do or not). So the solicitors are effectively employed as are the support staff who work there.

Their concern as I understand it is that the proposed fee changes will not bring in enough income to continue to run the centre as they do almost 100% public funded work so they have no private clients to subsidise the lower income - already private firms in the area are sacking solicitors who work in what will now be lesser funded areas of work and so the number of clients coming to the LC will increase actually probably to more than they can cope with - theoretically they could employ more solicitors but again the income won't cover the costs. Or they can start to take on private work, but that switches the focus of the LC who seek to provide services to those who can't get representation elsewhere. They do have some grant funding, always on short term contracts of course, so this will have to be an avenue they explore in the future,

A way around this, and what I suspect will become the case, will be for firms to employ legal caseworkers rather than qualified solicitors to cover much if not all of the public funded work, with supervision from a solicitor - much as I understand many of the big 'no win no fee' firms tend to do. These caseworkers can be paid £13 / £14k and so their costs reduce significantly - this will inevitably have an impact on some of the quality of service and lead to two tier provision across the public / private sector.

 

[detective-boy]

- this will inevitably have an impact on some of the quality of service and lead to two tier provision across the public / private sector.

The use of properly trained and supervised less-qualified staff to do appropriate parts of the work sound both sensible and inevitable - the same principle applies in every other field too. There will be limits on what this turns out to be and they should be properly researched and set (but, like every other public sector activity I suspect they will consistently be breached).

And I do not think that a two-tier system is the problem everyone makes it out to be - provided the publicly-funded provision reaches an appropriate minimum standard there is no problem with people having the opportunity to privately purchase different / more / (perceived) better service. As I have posted repeatedly: this happens in every other field, why not the law? No-one has provided any logical reason for an exception being applied.

 

[janeb]

The use of properly trained and supervised less-qualified staff to do appropriate parts of the work sound both sensible and inevitable - the same principle applies in every other field too. There will be limits on what this turns out to be and they should be properly researched and set (but, like every other public sector activity I suspect they will consistently be breached).

And I do not think that a two-tier system is the problem everyone makes it out to be - provided the publicly-funded provision reaches an appropriate minimum standard there is no problem with people having the opportunity to privately purchase different / more / (perceived) better service. As I have posted repeatedly: this happens in every other field, why not the law? No-one has provided any logical reason for an exception being applied.

The reason to me is simply that when you look to cut costs, you almost always cut quality. Crucially, how minimum will the standard be?

What flexibility will there to be to deliver an individually tailored service for cases that need to but need to be delivered to people who can't afford to pay private rates? Will there be additional time / funding available on fixed fee cases to provide interpretation for clients who 1st, 2nd or 3rd language isn't English for example but who need a lot of time spending on the case as they may be about to be deported to Zimbabwe?

I've also worked in the public sector all my working life, 23 years so far, and I know the pressure to drive down costs at the expense of quality. It's bloody hard work to deliver a quality service when all you get is hassle about missed targets and pressure not to do the 'bit extra' so you can get on with the next case / see your next client.

For simple, straightforward legal cases fixed fees may well work, it probably will - but once these have been cherry picked out what's left will suffer as a result.

 

[teuchter]

As janeb says, it's all about what an appropriate minimum standard is. In the case of legal defense, where there potentially so much at stake for the legal aid recipient, I reckon that standard should be pretty high. And achieving that means paying decent fees to the lawyers. I think is all that they are asking for.

Surely there are certain fields (legal aid and health care come to mind) in which good quality is so crucial, that, although we have to accept there will be something of a two-tier system, the difference between those two tiers should be kept fairly low.

That said, increasing fees isn't the only way to provide a better quality of legal aid provision, as has been pointed out.

 

[detective-boy]

For simple, straightforward legal cases fixed fees may well work, it probably will - but once these have been cherry picked out what's left will suffer as a result.

I'm not arguing for fixed fees - I never have been. To be honest, I can't see how they can operate for precisely the reasons you outline.

ALL I am saying is that lawyers should expect to be treated in exactly the same way as any other profession operating across both public and private sectors. There will be restricted public sector funding whereas the private sector will be constrained only by market forces. There will be a "reasonable" cap (and there is a debate about what that should be) on earnings and fees charged in the public sector whereas the private sector can charge what it can get away with.

Some (and I believe quite a significant "some") of the complaints about any effort to rein in legal aid spending are from those with little interest in the actual access of the public to the law and much interest in making sure that the gravy train they are on does not suffer the same fate as the Virgin Trains Pendolino ...

 

[detective-boy]

Surely there are certain fields (legal aid and health care come to mind) in which good quality is so crucial, that, although we have to accept there will be something of a two-tier system, the difference between those two tiers should be kept fairly low.

I think looking at it that way is bound to fail. The consideration of what is a reasonable level of remuneration in the public sector should be taken across different professions. (In fact, in an ideal world, I would like to see individual pay and reward capped at some fairly modest level to go with the foundation at minimum wage level (which should be raised a bit as well) so that there is a narrow gap across society as a whole, but that simply isn't going to happen)

I assume that taking your approach will see you on the picket lines in Whitehall, arguing for a mahoosive pay rise for the Prime Minister, CEO of UK plc, on the basis that the CEO of, say, HSBC Bank plc earns about a million times more ...

 

[teuchter]

I assume that taking your approach will see you on the picket lines in Whitehall, arguing for a mahoosive pay rise for the Prime Minister, CEO of UK plc, on the basis that the CEO of, say, HSBC Bank plc earns about a million times more ...

I'm just saying that pay should be at a level high enough to attract people of a sufficient quality to the job, and no higher than that.

As regards the prime minister, well, if there was an indication that paying politicians higher wages would lead to a better quality of politician, then it would be worth considering. I don't think it would, however, as salary isn't really the prime motivation for people going into politics.

 

[detective-boy]

I'm just saying that pay should be at a level high enough to attract people of a sufficient quality to the job, and no higher than that.

Which is not necessarily what the protests of the lawyers is actually aimed at. What they are used to / would like is not necessarily the same thing at all.

Which brings us right back to the original point I made ...