The Bach Report: (4) Legal aid lawyers & the effect of LASPO

This is the second in the new series of blogs which will start with relevant extracts from the Bach  Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix Five to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

1. Extract from the Report

The legal aid profession and its continued viability

It is the work of legal aid professionals that props up the legal aid system and ensures that those who are eligible for legal aid can secure justice. It has never been the most lucrative branch of the legal profession. But the legal aid sector must be able to sustain itself, with providers continuing to carry out legally aided work and new recruits bolstering the profession. Yet with downward pressures on legal aid fees, cuts to bursaries for aspiring legal aid lawyers and low morale in the profession, many are turning away from legal aid work altogether. In the medium and long-term, such a shrinkage of the legal aid profession will inevitably have consequences on the quality and quantity of legal aid provision, and therefore people’s ability to access justice on a fair footing. The legal aid profession can also be a pipeline into the judiciary for people from a wide range of backgrounds, so its erosion will also compound existing problems of diversity within the judiciary, which fuels distrust of the justice system amongst communities who most need it.

The UK justice system is commonly praised as being one of the best in the world, with London praised as the “world’s legal centre and a destination for dispute resolution”.[1] Indeed, legal services contributed £25.7bn to the UK economy in 2015.[2] However, that statistic masks the huge pressures on the publicly funded arm of the legal profession that were accelerated by the enactment of LASPO.

Law firms working for clients in sectors which rely heavily on public funding – health, housing, local government, education, family – have seen much of their work dry up. Many have had to cut the size of their workforce and reduce or halt trainee recruitment.[3] To survive, firms have shifted to non-contentious or private sector work, and have stopped taking on meritorious cases which now fall outside the scope of legal aid if the client cannot afford to pay.[4]

The Law Society concluded that reform to legal aid, in combination with other factors, make it “extremely difficult” to estimate the future size of the solicitor profession, creating considerable uncertainty.[5] Barristers are also struggling, particularly at the junior end, with legal aid funded work paying so poorly that it is simply not a viable career option for many.[6] A government bursary scheme that had provided training to 750 legal aid lawyers since 2002 was scrapped by the coalition government in 2010.[7] Advice deserts are emerging where there are no advice centres, law centres or legal aid practices offering legally aided advice. The Law Society has shown that housing law, in particular, has suffered: “Almost one third of legal aid areas have just one – and in some cases – zero firms who provide housing advice which is available through legal aid.”[8]

Alongside the decreasing provision of legal aid by law firms, non-profit agencies have been hit hard too, with many closing their doors altogether. The original Birmingham Law Centre, the Immigration Advisory Service and Streetwise are just some examples of charities that have collapsed.[9]

None of this would be so significant if the level of need for legal support had fallen. But there is no evidence that this has happened. While there is evidence of increased pro bono activity at all levels of the profession, the leading pro bono charities are clear that unfunded legal support cannot, and should not be expected to replace publicly funded provision or the state’s duty to ensure access to justice for all.[10] The reduction in the capacity of providers has instead meant that fewer people are able to resolve their problems. And this state of affairs is unlikely to reverse quickly as it is affecting the career choices of young lawyers who can no longer risk dedicating their careers to areas of law heavily funded by legal aid.[11]

We recommend that the government commissions an independent review of the state of the legal aid profession and its continued viability. This review should focus on the impact any decline in size or quality has on the ability of the public to access justice, and consider the effects of the decision to cut the bursary scheme for aspiring legal aid lawyers.

 

2.  Appendix 5

Chapter 14: Legal Aid Lawyers – The Effect of LASPO

The evidence of Young Legal Aid Lawyers

Young Legal Aid Lawyers (YLAL) told the Commission that the reforms to legal aid have had a detrimental impact on access to the profession. Firms and chambers carrying out publicly-funded work are offering fewer training contracts and pupillages, with no guaranteed minimum salary for trainee solicitors and pupillage awards persisting at a level of £12,000 per annum.   In a report they published in October 2013,[12] they said that paralegals and junior lawyers were under increasing pressure due to increased caseloads, often with cases concerning complex and/or traumatic issues, at minimal levels of pay.

Anecdotally, they were aware that many young practitioners were moving into NGO or third sector roles due to fatigue, job insecurity and low levels of remuneration within the legal aid sector. This has had a knock-on effect on social mobility and diversity across the profession, as low rates of pay drive competitive candidates from under-represented groups, such as those from black and minority ethnic backgrounds, those who care for dependent family members and those without independent financial means, away from the legal aid sector and into more financially rewarding commercial and corporate roles.

Many of their members commented on how they were struggling with debt liabilities whilst surviving on a very low income from legal aid work. Of the respondents to our survey who were in legal work:

  • 5% were earning less than £10,000 per year (all were paralegals)
  • 8% were earning between £10,001 and £15,000 (including 3 pupil barristers and 5 paralegals)
  • 37% were earning between £15,001 and £20,000 (including 18 paralegals and 15 trainee solicitors)
  • 17% were earning between £20,001 and £25,000 (including 6 paralegals, 6 trainee solicitors and 4 solicitors)
  • 15% were earning between £25,001 and £30,000 (including 8 solicitors and 2 barristers)
  • 8% were earning between £30,001 and £35,000 (including 7 solicitors and 1 barrister; none were paralegals or trainee solicitors)
  • 11% were earning more than £35,000 (4 were solicitors and 7 were barristers although not all were working in the legal aid sector)

YLAL has recently[13] brought these figures up to date. 79% of their members now have debt exceeding £20,000, with 10% having over £50,000 f debt. Overall, 87% of respondents were now earning £25,000 or less (up from 67% in their 2013 report) and only 2.5% were earning over £35,000. When invited to identify the biggest challenge facing them, their members responded as follows:

  • Underpaid (34%);
  • Stress (21%);
  • Workload (11%); and
  • Long hours (8%).

Criminal legal aid fees: the effect on morale and recruitment

Jonathan Black, a former chair of the London Criminal Courts Solicitors’ Association, described the changes that were made to the arrangements for remuneration in magistrates’ courts:

In the early 1990s a fixed fee scheme was introduced, and lawyers were encouraged to reduce the number of hearings required in each case. In 2008 fees for travelling and waiting, whether to or from court or police station, were removed. There is now a huge cost-driver for firms to minimise the time spent in court. Solicitors are not paid for travelling or waiting. The problem is even huger outside urban areas, where solicitors and their clients may have to travel long distances – and to meet the cost of travelling themselves.

Some of the fixed fees are so derisory that solicitors won’t take the cases on.   For lower end cases with significant penalties such as actual bodily harm, harassment or burglary, the fixed fees are so low that people are turning their back on them. This causes huge access to justice problems. One size doesn’t fit all for these types of claim. There may be language difficulties or the client may be mentally ill. Then there are specific London difficulties, such as the transient nature of our client base, language problems and wider mental health issues.

The average age of the 21 solicitors in seven criminal defence firms in Hull was recently found to be over 54. At the same time, the average age of the 85 solicitors in the 13 firms represented on the committee of the Criminal Law Solicitors’ Association was 45. At the Bar, the Commission was told by Joanne Cecil that the incidence of “third six-month pupillages” in her large set of chambers had completely dried up (for lack of available work from which they could make ends meet) and new tenants usually wanted to move from crime to less badly paid and less demanding areas of practice within two years of being admitted to their tenancies.

Zoe Gascoyne (CLSA) summed up the situation in a nutshell:

It is fair to say that for a number of years the criminal justice system is being underpinned by good will, because the majority of people who go into criminal legal aid work, do so because it’s a vocation. They don’t do it because you earn vast amounts of money because you certainly don’t. It’s offensive when we read reports in the Press of what people think fat cat lawyers do in criminal legal aid work because the fact is they just don’t. It’s hard work, it’s 24/7, I don’t know any criminal lawyer who isn’t available 24/7.   I am available on the phone continually. I have three young children. This is something we have to do if we choose to go into criminal law.   It’s an area where there hasn’t seen any increase in pay – and I’m sure other people have mentioned this – in the last 18 years and then we’re faced with cuts.

The evidence of the Society of Labour Lawyers

The Society of Labour Lawyers said:

We continue to pay lip service to diversity for as long as those working at the junior end on both sides of the profession are not properly remunerated. Newly qualified barristers continue to attend in the magistrates’ courts for a fee of £150 for trials which could take hours of work in preparation. Other fees for magistrates’ court advocacy work are significantly less. These fees are gross of chambers expenses, travel expenses and incidental professional costs, including the cost of loans taken out to enter the profession.

Women who have managed to establish a trial practice in the Crown Court with a commensurate increase in earnings face the following problems when they have children:  

Towards the end of pregnancy – unable to commit to trials in the coming weeks/ warned lists/ trials running towards due date, not to mention undertaking an at times punishing workload during the latter stages of pregnancy being less than conducive to good health of mother/ child;

Breastfeeding through to weaning (about 6 months minimum) before returning to anything approaching full time practice, which then takes another 6 months or so to re-build (PTPH to trial often taking many, many months);

The cost of childcare in the early years (approx. £13,500 p.a. for full-time nursery care, and more in London).

This combination makes practice at the criminal bar financially unsustainable for most working mothers. This is the economic reality and it is why we continue to recruit marginally more women than men into the profession and continue to see an exodus of the late 20’s / early 30’s females, with few women continuing on into the highest levels, taking silk, or entering the criminal judiciary.

The volume of work required to make a reasonable living mitigates against high standards, which in turn costs the state more money. There are a number of recent examples of appeals in criminal law that are for no reason other than less than effective representation.

Of the problems that face new recruits to the Bar they wrote:

Many new barristers have taken on substantial debt not only to qualify but to survive financially for the first few years. This debt is often in the form of unsecured personal loans or credit cards. The profession is concentrated in large urban centres, where the cost of housing has rocketed. The financial burden is a heavy one and for too many is now proving unsustainable, to the detriment of the future health of the profession.

Newly qualified barristers and pupil barristers spend the majority of their time in the magistrates’ court for the first two years or so of practice where they are paid £75 for a half day trial, £150 for a full day trial and £50 for all other hearings. Most summary trials are listed and paid for half a day, but will absorb a whole day of the barrister’s time because of travel, delays at court and preparation time. After the payment of chambers rent (around 20%) and tax, barristers are often working for less than the living wage, the London living wage and the minimum wage.

The fees of the most junior have not been properly reviewed for many decades or index linked to inflation. This is a real time pay cut. Solicitors are paid a single fee for a magistrates’ court case and often struggle to cover their own costs. The ‘old system’, that the difficult first few years would eventually be compensated for, following a move into the Crown Court, no longer holds true. Increasing numbers of talented young barristers are pushed out of the profession for financial reasons long before there is any prospect of building a practice.

The pay is not only low, but slow. It can take months, sometimes years, to be paid for magistrates’ court appearances and for travel to be refunded. Meanwhile the debts and interest accumulate. The timing of payment is unpredictable.

The financial pressures are so great that many new barristers undertake long secondments in large organisations (most commonly the SFO and FCA) in order to earn enough money to pay off their debts. This stop / start practice development usually operates as a revolving door because it is inimical to the uninterrupted availability for work and development of advocacy skills that is required in the early years to get a practice underway. Much is said about the scourge of secondments for the junior criminal bar, however they are the inevitable result of a remuneration system that traps new barristers into a cycle of debt.

Consequently, those who are not financially independent are leaving the criminal bar in droves. We face the bleak prospect of the ‘bad old days’: a criminal bar and solicitors’ profession populated by those with independent incomes, working for private fees.

Other evidence about poor pay and conditions at work

When the Commission inquired about average annual rates of remuneration, Bill Waddington said that duty solicitors earned £24,000 and criminal defence solicitors between £30,000 and £34,000, figures which had seen little change over the last ten years.   Joanne Cecil said that a gross income (net of VAT and expenses) of more than £25,000 could not generally be expected from criminal legal aid work during the first five years at the Bar, and Andrew Keogh suggested that even for barristers up to ten years’ call £50,000 was probably the most they could usually expect to recover from a criminal legal aid practice.

 

And this is not 9 a.m. to 5 p.m. work. Joanne Cecil spoke of

the need to be on call almost, you know, all hours because when it comes to working practice, the reality is that you may be in court until about 4:30. But your work very rarely ends at that point, and you’re still working late into the evening. There’s an awful lot of pressure from the court to get things done overnight.

The Commission did not get itself involved in the minutiae of the arrangements for paying different fees for different types of case, topics which are currently the subject of major government consultations. It was accepted that a system of pay rates which are bound up with the number of pages of documents served by the prosecution is bound to produce a number of indefensible anomalies, but the Commission had no evidence on which to judge the extent to which savings in one area could adequately compensate for gross levels of under-payment in others.

The Association of Costs Lawyers wrote about the fact that, over the years, physical access to competent, qualified members of the legal profession had been eroded. This was in part due to the move away from high street practices into an environment where contact is often remote, but it was also due to the drive within the profession towards a law firm operating more as a commercial enterprise:

The latter has meant that fewer and fewer qualified solicitors are available, having been replaced with paralegals who often have no training before being parachuted into live files. This has a knock-on effect of ineffective representation with the associated costs of rectification of the errors.

Adam Tear, a solicitor in a very large firm of legal aid lawyers told the Commission that legal aid had always worked on the basis of committed individuals doing good quality work, and thinking about charging as an afterthought:

With the cuts legal aid firms can no longer afford to employ as many of the dedicated lawyers to social justice as they once did, and must rather focus on recovery of costs. I spend a considerable amount of my time checking bills, pursuing claims for Judicial Review against the LAA, and generally not doing the work that I used to enjoy of helping vulnerable individuals.

The degrading of the value given in terms of both recognition and remuneration is concerning. The tipping point has gone, such that legal aid firms must employ more and more money-orientated lawyers, rather than those that are attempting to ensure the highest standards for social justice. This is not simply a legal aid issue, but also a political, judicial and general attitude towards legal aid lawyers. A firm commitment to stop taking pot shots at lawyers because they represent unpopular groups must be firmly established.

The Coram Children’s Legal Centre said they were deeply concerned about the capability of the legal aid sector to continue to encourage good lawyers into the profession and to grow talent, and the impact on young people who want a career in legal aid. The financial pressure on providers meant they cannot offer job security or development opportunities to staff, including financing the career progress sought by most young people who will want to transition from paralegal to solicitor or barrister, and this makes for a volatile working environment. Those who are unqualified are working for less than the Living Wage (£8.25 per hour) and the problem is particularly acute in London where rent increases have left many young legal aid lawyers unable to afford their living costs[14].

The Haldane Society of Socialist Lawyers said that their experience was that for the most junior barristers the level of remuneration in many cases is set at a level lower than minimum wage. The standard fees in London for magistrates’ court work are: (i) £50 for first appearances, remands, bail applications, sentences, adjourned trials; (ii) £75 for half day trials, half day contested committals and where a defendant pleads guilty at trial; (iii) £150 for full day trials and full day contested committals:

The references to contested committals demonstrate the length of time for which these fees have not increased since they were abolished in 2013. Some chambers are content to allow the most junior barristers to attend court for even lower sums. The closure of courts, leading to the over-listing of cases in magistrates’ courts, results in large numbers of cases scheduled to start at 10am not being called on until late in the afternoon. Where the preparation and follow-up work for a case is added to the time spent at court and travelling from chambers to court, fees regularly fall to the level of £5 per hour or less. No legal system can hope to provide adequate representation in court to a defendant at a level far below the minimum wage, let alone the living wage or London living wage.  

The Islington Law Centre was deeply concerned about the loss of skills within the sector – for example, Housing Benefit issues are no longer taught to law students, as they are not in scope of legal aid.   They welcome the excellent Justice First Fellowship initiative, and other development programmes such as the Leadership programme funded by the Baring Foundation and JP Getty, and the LAPG programme. However, these are relatively small scale, and as current social welfare lawyers retire and move out of the sector, it will be increasingly difficult to recruit suitably experienced staff.

Whilst pay is not the major factor, they said they were now in a situation where their experienced solicitors who have 20 -year and more post-qualified experience (PQE) were earning less than the starting salary of volunteers who are about to take up a training contract at a City firm.

Julian Hunt, a criminal barrister wrote of:

  • The ludicrously low legal aid fees paid supposedly on a swings and roundabout basis but with far more swings, most of which are broken, than roundabouts, most of which are busted, and the effort in collecting it with AF1 forms rejected and having to be resubmitted for technical and absurd reasons – something I see as I clerk myself.
  • Everyone having to do a rush job. The result of the case may not change but I see on a regular basis individuals on both sides completely demoralised and just not really even trying. I doubt, like many, there was a “golden age” of advocates but these days we have demoralised, poorly paid lawyers being harangued by overly powerful hectoring District Judges (or worse lay magistrates) creating a perfect storm.   I am sorry I can only give anecdotal evidence but I am sure I will not be the first person to have made this observation. At least they remain polite in the Crown Court rather than ranting and raving about criminal procedure rules.

 

 

The evidence set out in this blog – which is supported by the much fuller evidence in Appendices 1 to 4, and the totality of the written evidence filed on the Fabians website, has got to be taken very seriously by everyone who cares for the future of justice in England and Wales.

I repeat:

The average age of the 21 solicitors in seven criminal defence firms in Hull was recently found to be over 54. At the same time, the average age of the 85 solicitors in the 13 firms represented on the committee of the Criminal Law Solicitors’ Association was 45. At the Bar, the Commission was told by Joanne Cecil that the incidence of “third six-month pupillages” in her large set of chambers had completely dried up (for lack of available work from which they could make ends meet) and new tenants usually wanted to move from crime to less badly paid and less demanding areas of practice within two years of being admitted to their tenancies.

Zoe Gascoyne (CLSA) summed up the situation in a nutshell:

It is fair to say that for a number of years the criminal justice system is being underpinned by good will, because the majority of people who go into criminal legal aid work, do so because it’s a vocation. They don’t do it because you earn vast amounts of money because you certainly don’t. It’s offensive when we read reports in the Press of what people think fat cat lawyers do in criminal legal aid work because the fact is they just don’t. It’s hard work, it’s 24/7, I don’t know any criminal lawyer who isn’t available 24/7.   I am available on the phone continually. I have three young children. This is something we have to do if we choose to go into criminal law.   It’s an area where there hasn’t seen any increase in pay – and I’m sure other people have mentioned this – in the last 18 years and then we’re faced with cuts.

 

This is not about “fat cat lawyers”.  It is about “just about managing” and poorer members of the public no longer being confident that they will be able to secure the help of competent lawyers when the current generation of ageing legal aid lawyers has retired – or given up their legal aid practices.

 

 

 

 

[1] Rt Hon David Lidington MP. (2017) Speech by the Lord Chancellor: Dinner for HM Judges 2017. Accessed September 2017: https://www.gov.uk/government/speeches/speech-to-hm-judges-dinner

[2] The City UK. (2016) UK Legal Services 2016. Accessed September 2017: https://www.thecityuk.com/assets/2016/Reports-PDF/UK-Legal-services-2016.pdf.

[3] For example, it was reported recently that Fisher Meredith had halved the number of trainees it employs in the past few years and cut solicitor numbers by a third. See Chambers Student, Trends affecting the legal profession. Accessed September 2017: http://www.chambersstudent.co.uk/where-to-start/trends-affecting-the-legal-profession

[4] Ibid.

[5] The Law Society (2016). The Future of Legal Services. Accessed September 2017: http://www.lawsociety.org.uk/news/stories/future-of-legal-services/

[6] Martin Bentham. (2015) Legal aid cuts see barristers work for “below minimum wage”. The Evening Standard. Accessed September 2017.   https://www.standard.co.uk/news/politics/legal-aid-cuts-see-barristers-work-for-below-minimum-wage-a3139806.html

[7] Law Gazette. (2010) MoJ axes training grants for legal aid. Accessed September 2017: https://www.lawgazette.co.uk/news/moj-axes-training-grants-for-legal-aid-/56225.article

[8] The Law Society. End Legal Aid Deserts. Accessed September 2017: http://www.lawsociety.org.uk/policy-campaigns/campaigns/access-to-justice/end-legal-aid-deserts/

[9] Chambers Student. (2013) Legal Aid Cuts and Reforms. Accessed September 2017: http://www.chambersstudent.co.uk/where-to-start/newsletter/legal-aid-cuts-and-reforms

[10] LawWorks. (2016) LawWorks clinics network report April 2015-March 2016. Accessed September 2017: https://www.lawworks.org.uk/sites/default/files/LawWorks%20Clinics%20Network%20Report%202015-16.pdf

[11] “… it is a tragedy that able and capable barristers are leaving publicly funded areas of work, or leaving the Bar entirely, because they cannot afford to practise or because they see no future there”. Daniel Sternberg. (2016) Reflection on the future of the Young Bar, Counsel Magazine. Accessed September 2017: https://www.counselmagazine.co.uk/articles/reflections-the-future-of-the-young-bar

 

[12] Young Legal Aid Lawyers. (2013) Social Mobility and Diversity Report, One Step Forward, Two Steps Back. Accessed September 2107: http://www.younglegalaidlawyers.org/sites/default/files/One%20step%20forward%20two%20steps%20back.pdf

[13] The Justice Gap, Proof Issue No 3. (2017) Why legal aid matters, pp 86-89.

[14] For further information, see the Young Legal Aid Lawyers (2013) Social Mobility & Diversity in the Legal Sector: one step forwards and two steps back, which found that 50% of their members were earning £20 000 or under. See fn 163 above.

2 thoughts on “The Bach Report: (4) Legal aid lawyers & the effect of LASPO

  1. Pingback: THE BACH REPORT: (7) CRIMINAL JUSTICE – Henry Brooke

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