Written by: John Storer
Are legal aid clients second class citizens?
It is not often that I read something that makes my blood boil. When I do, it usually relates to some new proposal by our Government (of whatever political persuasion) that will affect my job as a criminal defence lawyer, or some half-baked idea put forward by one of the many agencies we have to deal with. However, this article in the Law Society Gazette had me seething.
Ian Kelsey, deservedly a well-respected criminal lawyer and advocate, addressed the Law Society’s Criminal Law Conference on 8th May 2012 and propounded that Criminal firms should make it clear to legal aid clients how their publicly funded status affects the service they get. He is quoted as saying:
‘It’s a myth that clients get the same level of service on legal aid rates as when they pay privately – that disappeared about 10 years ago.’
I am sorry, Mr Kelsey, but you do not speak for me, my firm, nor (I suspect) the majority of criminal defence practitioners who deal with legal aid cases either as solicitors or barristers.
At a previous firm I worked at, I was regularly laughed at by answering the question ‘Why are you a solicitor?’ by saying ‘To help people!’ I did not think this was the slightest bit funny. I am certainly not a criminal defence lawyer to make my fortune. I’m never going to be rich. I am, however, doing a job that has given me, and continues to give me, tremendous job satisfaction.
The overwhelming majority of work that goes through my firm is legally-aided. The same can be said for most of the criminal defence lawyers I know. Our private work comes from those that are not eligible for legal aid for a number of reasons, such as failing to pass the interests of justice test or because their means are such that they do not meet the financial criteria. That a client is the recipient of legal aid, or is paying for our services from their own pockets, makes not one iota of difference to the service they receive.
Mr Kelsey is also quoted as saying that there is a limit to what criminal legal aid firms can be expected to do and that:
‘We can’t supply a platinum level of service with base metal rates of pay.’
With respect, Mr Kelsey, one cannot help but ask why your firm is still continuing to take on legally-aid clients?
Of course, every firm needs a steady stream of income to survive. A firm predominantly taking on publicly-funded work knows at the outset that that income source is subject to the whim of Government. We have seen the introduction of fixed fees pretty much across the board. We have seen funding for some areas of work totally removed.
We face further challenges – increasing levels of bureaucracy at the soon-to-be-defunct Legal Services Commission (a situation not likely to improve when the Ministry of Justice takes over the role); the introduction of electronic working in courts and in the preparation of cases; constant changes to the Criminal Procedure Rules
That, however, is no excuse for not doing your very best for each and every client (which I am sure Ian’s firm does), or for reducing the levels of service you offer if you intend to carry on with criminal defence work that is state-funded. No one is forced to take on a legal aid contract; it is a matter of choice for each firm.
I do not deny that economies have to be made, but that certainly does not have to be in the level of service given. I accept that the only way to make a profit from criminal defence work is by keeping overheads down and by working harder. No swanky offices and, for us, no secretaries or telephonists. The upside of such economies, however, is that clients actually believe they are getting a better, and more user-friendly, service.
Making such comments merely perpetuates the real ‘myth’ that legally-aid clients DO get a second-rate service. I have lost count over the years of the number of times I have been asked by clients, who have been eligible for publicly-funded representation, whether it would make a difference to their case if they paid me themselves. My answer has always been the same … not one jot!
The proof, as they say, is in the pudding. We send out a client satisfaction questionnaire to all clients at the conclusion of their case asking them to rate our performance during the various stages of their case and our overall performance. We have an extremely high client satisfaction / client complaint ratio as do, I suspect, most of the other criminal defence firms I have dealings with. Anecdotally, most legally-aid criminal clients around the country are very happy with the service, advice and representation they receive.
And criminal clients can be a fickle bunch! A firm can only retain client loyalty by consistently providing them with accurate advice and effective representation in court. A client who does not think his case is being treated as importantly as he believes it should be (which is usually of the highest importance) will soon ‘jump ship’ and seek representation elsewhere.
Mr Kelsey’s comments are sure to divide opinion amongst both professions but I think he has done a disservice to the considerable number of extremely conscientious criminal lawyers who, day in and day out and over very long hours, do give a ‘platinum’ service to each and every client they advise and represent. I also think he has unwittingly supplied ammunition to those who seek to control the provision of criminal defence services even further than they are already doing so.