Friday, February 13, 2009

Pay Peanuts, Get Monkeys

I wanted to say something about the proposed changes to legal aid funding for barristers. Now, before I begin I should explain that the post title above is not intended to be derogatory in any way to the many talented and hard-working lawyers who still provide a legal aid service (or, indeed, to our primate cousins). Instead, it is meant as a stark warning of the ultimate effect of these changes.

I have already mentioned here the excellent post of Lucy Reed at Pink Tape, in which she estimates that the proposals will result in cuts to barristers remuneration for family work (excluding public law work) "equating to approximate hourly rates of £27 - £35 per hour before expenses, which as a rule of thumb are likely to amount to 30% and tax". So, by my estimation, they will effectively be paid between about £19 and about £25 per hour gross of tax and National Insurance. Now, I don't know how many 'chargeable hours' the average legal aid family law barrister does each year, but I doubt that it would exceed 1000, in which case they would receive a maximum of £25,000 per annum. This, of course, assumes that they do no privately-funded work, as it should - why should private clients subsidise legal aid clients beyond the tax that they pay? So, is £25,000 per annum reasonable remuneration for someone who has gone to enormous effort and great expense (Lucy Reed estimates £40,000 on average) to train as a barrister? No, of course it is not. The inevitable result will be that many highly experienced barristers will stop doing the work, and many talented people entering the profession will look elsewhere for their specialism.

Of course, the LSC expect that much of the advocacy work now done by counsel will be done by solicitors, but there are at least three points against this: Firstly, whilst there are many talented solicitor-advocates, they are surely not, on average, as highly trained or skilled as the 'average' barrister, so quality of representation will inevitably diminish, especially in the more complex cases. Secondly, the LSC assumes that solicitors will want to do this work - this may be so during a time of recession, but surely once the recession is over then there will be a return to the exodus of firms from legal aid work, resulting in far less choice for members of the public. Thirdly, the LSC has long envisioned fewer but larger firms doing legal aid work, taking advantage of economies of scale - this will not just mean less choice but also, as Lucy points out, may actually mean that there are insufficient legal aid firms in a particular area to represent all the parties to a particular matter, meaning that some parties will have to travel large distances to seek representation.

All in all, another disaster for those in most need of high-quality representation.

8 comments:

  1. I agree and would like to add that to compensate for the falls in revenue the legal sector as a whole will open up positions for law/ BVC/ LPC grads to help with work - but these positions will more frequently be unpaid voluntary positions for aspiring barristers/ solicitors to gain experience. This will reinforce class divides by reducing the amount of opportunities for low income graduands to qualify in legal aid areas: We're seeing this happen due to the credit crunch already.

    In contrast however your suggestion that the advocacy work provided by solicitors is lower quality is only a short term problem: if these measures do take effect more solicitors will seek to gain the skills/ access required to become "talented solicitor-advocates" therefore increasing the quality.

    I hesitate to add this latter point as it is contrary to much of the barrister based opinion on much of the blogosphere: in general i agree with the economic opinion that reforms to the legal aid system do need to take place but the answer, as with criminal legal aid, is near on impossible to find: and reducing legal aid funding overall certainly isn't it.

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  2. Thanks. You may be right about solicitors becoming 'talented solicitor advocates', but the fact remains that training for the Bar is dedicated to advocacy, unlike solicitor training. Further, dare I say it, the more talented advocates are always likely to go the Bar route, rather than train as solicitors.

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  3. I feel I should add a slight caveat to my estimates of the extent of the drop in income and the approximations of hourly rates - the figures I referred to in my blog post were arrived at from a calculation of what I would get paid under the proposals for a series of hearings I have carried out in recent months, as compared with what I have been paid under the existing arrangements.

    So whilst those figures are my best guess at the moment of what the impact will be there is inevitably a margin of error which is multiplied when you take my original estimates, net them down and then multiply them by an estimate of cases per year to further extrapolate a likely annual income. I therefore wouldn't like to say if that figure of £25k p.a. is accurate - I certainly hope it is way out but frankly, I cannot face the prospect of working it out. No doubt we will find out in due course...

    Sorry to be a pedant but I would not want eitehr you OR I to be accused of touting misleading figures, something of which I know the LSC would strongly disapprove!

    PS Of course for most of us we subsidise our legal aid work with privately paying work and so even if the reduction were 50% of or legal aid work we may not experience a 50% cut overall. Small comfort...

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  4. Thanks for that Lucy. I did not intend the figure of £25k to be accurate, just illustrative. As you say, you subsidise your legal aid work with private work - but why should you have to, in order to enjoy a reasonable living?

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  5. I hesitate to comment, because i do have a jaundiced eye of family Law, but, just how many of the Legal Aid cases which get dragged through the courts at great expense, are actually worthy of being there at all?

    How many people use Legal Aid just because its there and they can.

    I know that in some fathers Rights Groups (Who I have sympathy with, but have not sold my soul to), there is a view that if Legal Aid was removed, their cases would finish much quicker than they currently do.

    As an example, and I hate to hinge an argument on one case, last week in Court the Judge said 'If she wants to pursue this litigation, then let her pay for it. I am not prepared to allow Legal Aid to continue funding this senseless litigation.' She then gave in and allowed contact to be increased. Obviously you could say that she was forced into something which she knows is wrong, but it wasn't in this case.

    I support legal Aid when its needed, but it seems to be that it has been misused and wasted for too long. I would hate to see it go the way of the Criminal bar though.

    Of maybe 200 cases that I have been involved with, about 5 were privately funded. 199 resulted in contact.

    When both parties represent themselves, now THAT is what the Courts need to avoid!

    Swiss

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  6. Hi Swiss,

    I've always thought that legal aid is abused by some. The problem, of course, is coming up with a fair method of sorting the wheat from the chaff.

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  7. John, if they did sort the wheat from the chaff, there would be a heck of a lot more money to fund the cases that need funding. Smiles all round.

    Swiss

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