Evidence submitted by Peter Soar, Retired
Solicitor
My name is Peter Soar: I am a retired solicitor
living in Cambridge. This is a personal submission, not made on
behalf of anyone else or on behalf of any institution, so I feel
I should begin by setting out those parts of my CV which may justify
my asking you to read my evidence.
After qualifying as a solicitor I was for 12
years a partner in a high street practice in Cambridge. We were
generalists but undertook a good deal of criminal advocacy in
the magistrates courts, seeing cases through to Quarter Sessions
and Assizes. In 1974 I left in order to set up my own practice
in what was then a working class area in Cambridge; my objective
was to run a legal aid practice and this I did for the next dozen
or 15 years. I chose the place for my office after making an analysis
of the geographic origins of the work handled in my original partnership.
At its largest my firm employed eight or 10 solicitors. The legal
aid work we undertook was mainly family and criminal but we also
knew a bit about housing, benefits and immigration.
I took a fairly public interest in matters concerning
our enterprise and was invited to join The Law Society's Remuneration
Committee; in particular I was a member of the Society's team
which negotiated annual legal aid rates with members of the Lord
Chancellor's Department. I was a founder member of the Legal Aid
Practitioners Group and its Chair for several years. I chaired
the user group of my firm's computer software supplier. Butterworths
published my The Solicitors Practice which was perhaps
the earliest attempt to study in any detail the problems of the
management of small or medium sized practices. More recently (2002)
the International Bar Association and Kluwer Law International
published my The New International Directory of Legal Aid which
is an examination of the legal aid systems of some 80 jurisdictions
round the world.
In 1988 I was appointed one of the two original
solicitor members of the Legal Aid Board and remained a member
for five years, serving on several of its committees including
the Franchising Committee, IT Committee and chairing the Criminal
Law Committee. (In this paper I am not drawing directly on that
experience.) I am not alone in viewing recent trends in legal
aid with some concern and I am glad to have the opportunity of
contributing to your Inquiry. What follows is offered in a spirit
of adventurous goodwill. I shall follow your terms of reference.
What evidence is there of the emergence of "advice
deserts"?
You will receive much evidence on this, not
least from Citizens Advice whose paper I find persuasive. My small
addition consists of the results of spending a short time on the
Community Law Service web site, which offers a directory of publicly
funded firms and organisations. I searched by town and asked for
those providing housing advice, within a five mile radius. The
towns were chosen as they came to mind.
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| Ripon | None |
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| York | Four, including one solicitors firm which did not mention housing on their own website.
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| Marlborough | None |
| Exeter | Seven solicitors; only one mentioned housing on their own web sites and none mentioned legal aid.
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| Daventry | None |
| Tavistock | None |
| Ipswich | Two solicitors; one had a web site but made no mention of housing or legal aid.
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| Brighton | Three, one of which was a housing trust and legal centre. The two solicitors both mentioned on their web sites that they had a franchise and one made a detailed point about offering housing advice.
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| Wigan | One solicitor with no web site but the CLS details for the firm made much of housing and a wide range of housing law.
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| Cambridge | CAB and an independent advice centre.
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The impression given by almost all the solicitors web sites
is very much the mixture as before; the market they aim to be
in is the local property, commercial and professional one with
which most solicitors are identified.
What action is being taken to ensure that there is access to
legally aided advice in all legal specialisms?
You will no doubt receive detailed evidence from others;
the trend seems to be in the opposite direction.
How can the Department for Constitutional Affairs and the Legal
Services Commission provide incentives for legal aid practitioners
to continue legally aided work?
Why are practitioners likely not to continue? Has the main
exodus already happened or is there a constant drift away? Perhaps
the three key words are regulation—bureaucracy—pay.
The trend for the first two is to increase and become ever more
complex and entrenched, while the second stands still; that is
reduces against inflation.
To judge the meaning of regulation in this context, it would
be valuable if the Committee could arrange to inspect one of the
LSC's main contracts (civil or criminal); I do not invite you
to read the documents in full, one is some 370 pages long, the
other 260, just to be aware of their length and the detail of
control which they contain. Then again the main Transaction Criteria
are illustrative of the extent to which solicitors files are monitored
by the Auditors. (The LSRC report on their profiling of criminal
work mentions that one firm they visited had all their hundreds
of criminal files on the floor in order to rearrange them as required
by LSC auditors.) In the Divorce Criteria you will find 100 pages
of boxes to be ticked in the course of the audit of a single file.
This descends, literally, to checking whether certain names and
addresses have been recorded on the file.
In these circumstances the fact that the question of reasonable
pay is a continual battleground between the Department and practitioners
is an added aggravation. Legal aid remuneration has always been
bedevilled by the theory, implicit from the beginning, that it
was a sort of extension of the old Poor Man's Lawyer work and
that the lawyer should still be making a charitable contribution
of his own. Even now there is little true understanding of the
capital needed to run a modern office, or its cost; or of the
fact that work in progress has to be funded.
Much has changed generally. There is a continuing trend to
bigger firms which concentrate on the traditional property/commercial/tax/company/probate
and trust work which fuels most High Street offices. Some of these
continue with a limited amount of legal aid, family matters or
clinical negligence, but at partners meetings it is the legal
aid people who are seen as under performing. The movement towards
larger firms is shown in the important table Trends in Private
Practice at p59 of The Law Society's Protecting Rights and
Tackling Social Exclusion.
By and large legal aid work is about contention/litigation/conflict
which often entails standing up and speaking publicly in court.
Those who thrive on this are rare in all walks of life; solicitors
are no exception.
Even when the work pays well and is done independently under
your own steam this side of the profession never suffers from
a deluge of applicants. The qualities which go to make a good
conflict lawyer (summed up as "thinking on your feet")
are at odds with those required of someone who is at ease with
250 page contracts, file audits and 100 page transaction guides
which list in minute detail what the auditor will expect of the
file, which was kept in the heat of daily practice.
Regulation is wringing the life out of legal aid practice
but has this become irreversible? Has capping come to stay? How
to reconcile rationing by "matter starts" with the Government's
stated desire to extend access to justice to all who need it?
For me, now, returning to look at legal aid after a break
of a few years, the very language in which the CLS Annual Reports
are couched is alarming. Control and regulation has increased
considerably. To take just two examples from the 146 pages of
the 2001-02 Annual Report:
"The number of Controlled Work contractors remained
relatively steady again in 2001-02."
"A further 389 solicitors' offices held contracts
for Licensed Work only."
At page 24, just the headings of paragraphs are enough
to send up warning signs:
Developing National Occupational Standards for legal advice
Inclusive Quality project
Race equality casework standard
Quality mark for websites
Learning and Skills Council Quality Mark support project
It is not surprising to see that the cost of running the
organisation rose from £63.769 million in 1999-2000 to £71.890
million the following year, or that the contracts awarded fell
from 4,039 in March 2001 to 3,760 in March the following year,
at a time in the life cycle of the CLS when you might expect the
number to increase. It is little consolation that there is a Reduction
of Bureaucracy project (Annual Report page 57 para 4.22).
Again, this warning from the Report itself at page 8, para
2.7:
We are concerned about the changes we are seeing in the supplier
base. Between March and April 2002 6% of CLS suppliers left, including
some firms of good quality. We are picking up intelligence through
our regional offices that up to 50% of firms are seriously considering
stopping or significantly reducing publicly funded work.
"We are picking up intelligence" sounds as if HQ
is some distance from the front line. Their studies showed that
at current rates many firms are at best marginally profitable.
A study by LAPG claimed that 54% of firms said legal aid work
was unprofitable.
My suggestion that the problems were regulation, bureaucracy
and pay seems to be justified. This term of reference asks what
can be done about it? Difficult to see, given that the Commission
appears to be wedded to the present philosophy; to the extent
I understand of introducing a Preferred Supplier policy which
will in all likelihood reduce the ranks still further. I am tempted
to look right outside this world of regulation and adopt a phrase
from psychiatry—"a good enough parent". If we
look for ideal, perfect parents we will be disappointed and the
parents who fail to reach perfection will become depressed and
anxious. We need good enough solicitors in this business, rather
than men and women who feel driven to leave the service (reluctantly;
they know there is a job to be done) because every move they make
has to be ticked in a compliance box. The test of a profession
used to be that it regulated itself; now we have got ourselves
in a tangle, unable to go forward or back. There has to be a more
balanced view of regulation and a more rational attitude towards
pay.
Is the perception that legal practitioners are moving out of
legally aided work correct?
The Law Society says so, the CLS is expressing serious concern
and studies by LAPG and Citizens Advice all confirm it. They leave
no room for doubt. There was an exodus when the new regime of
contracts was introduced and this was to some extent due to the
fact that many firms who did legal aid work did very little. Speaking
from memory 80% of legal aid bills were delivered by 20% of firms.
Some, therefore, would not have considered undertaking the weight
of form filling and regulation required and so the number of 8,000
or more firms doing legal aid fell at once to something like 5,000.
That was not necessarily a bad thing as the uncommitted no doubt
left first, although it should not be assumed that quality is
always linked positively to size. What it has meant is a reduction
in access and that is bad. In small places the volume of legal
aid work is always going to be small and if a system is introduced
which virtually rules out the small practitioner it is difficult
to see how the former position can be recovered. No amount of
juggling with advice agencies, law centres or regional community
studies, or distance services, or transport plans will get over
the fact that practitioners have walked away from work which many
of them have been getting on with, doing their incompetent best
perhaps, being good enough solicitors, since 1949.
Strange world in which we regulate criminal and family work
down to the last name AND address (see Transaction guides for
the capital letters) but throw civil work to the wolves (or at
least Wolfe).
Even if much of the fallout was of firms who did little legal
aid we cannot take much comfort from it; it conceals another reality.
If, say, in Wigan (one former Secretary for Legal Aid used to
ask himself of any new proposal "How will that play in Wigan?")
there were four firms all of whom would take on matters under
legal aid. Three drop out. The clients of those three will certainly
notice that they can no longer use their solicitor of choice and
whenever a conflict of interest arises, as it does in every divorce,
someone will have to look far afield and may be disadvantaged.
You may dislike solicitors, you may think all lawyers are greedy
and self interested but you must allow that the existence of an
independent solicitors profession is a vital part of our unwritten
constitution. It becomes more important when there are proposals
to restrict the right to trial by jury, allow the jury to see
the accused's previous convictions, remove a layer of appeal for
immigrants, reduce the standard of proof in some cases; it was
Erskine who said that the day a defendant is denied the lawyer
of his choice, that day freedom dies. To my mind, that applies
to this day, no matter what form the denial takes.
Can the requirement for legal aid be reduced by the resolution
of some legal issues on a more informal basis, through Citizens
Advice Bureaux, long distance services or otherwise?
Beware informality; the practitioner is still liable in negligence.
The Citizens Advice paper explains very clearly a situation
in which there is a shortage of resources of all kinds, formal
or informal. They are seriously worried about what they feel is
a lack of support from the CLS.
The use of long distance services as a source of consultation
for professionals or advice workers is discussed at great length
in the LSC's own research paper but here we must be being asked
to consider long distance advice as a point of contact with a
client. There may be, I suppose, situations in which basic advice
could be given over the phone, but in general, interviewing a
client must be done face to face. Avrom Sherr's Client Interviewing
for Lawyers (Sweet and Maxwell. 1986) makes clear how difficult
a task it can be. Any problem which needs the lawyer to look at
pieces of paper, from writs to pension books, HP agreements to
passports, rules out long distance services. At some future time
video conferencing might be usable but it looks a long way away
at the time of writing, and many of the present generation will
never be comfortable with it.
Therefore, while I can see a real benefit from a formalised
system of telephone consultation between professionals, or between
volunteers and professionals, I do not see that it has a future
as a contact between client and lawyer. There are all manner of
other problems over identification of the caller, payment, making
appointments and, I should imagine, recruitment; one of the few
remaining pleasures of the advice business is in meeting a large
number of people from diverse backgrounds.
. . .or otherwise?
invites thinking at large and I would like to consider here,
first, the possibilities of information technology and, second,
the growing pool of unused skills in the profession from among
those who have declined to work in legal aid. Others have emphasised
the need for a plurality of approaches; mediation is important,
advice services have not yet fulfilled the hopes of a few years
ago; public transport is nowhere catching up with decreased access
in rural areas or in deprived urban areas; courts are diminished
in number and concentrated in central areas, to suit their paymasters
not the citizen; past initiatives have come unstuck—the
County Courts were meant to be tribunals for ordinary people but
have become over lawyered—Legal Aid itself, supposed to
"open the doors of the King's Courts to the man in the street"
(Sir Hartley Shawcross introducing the Bill in 1948) has proved
to be a never fulfilled promise. So, my suggestions are directed
to better use of technology (if that is realistic) and better
use of those solicitors who now decline to work in legal aid.
Technology take up within solicitors' firms is patchy and
surprisingly low (see LSRC Profile paper p28 para 4.2.7); the
very biggest have embraced it and deploy substantial resources
to all aspects of its use. Our concern is with moderate or small
firms and here the picture is different. An examination of the
web sites of computer suppliers on The Law Society's list of suppliers
suggests that little has changed in the last few years, although
the outside world has seen a transformation. The reasons are no
doubt obvious; partners who make the decisions are among the older
members of the profession, less likely to be receptive to the
use of computers, let alone computer literate; successful adoption
of of this technology demands the investment of much time in diagnosis
of a firms' needs, persuasion of the uncommitted, training of
all levels of staff, investigation of the equipment available
and matching it to the known needs and, perhaps crucially, finding
the money. Having been through the process more than once, I believe
that anything beyond basic accounts and word processing will need
the use of more software than is usually supplied in standard
packages and great commitment on the part of the partners to ensure
that its use makes a return on the additional investment. A good
relational database for example can cost thousands for a licence;
access to statutes and case reports are by subscription. Significant
use of external sources needs professional standard broadband
connection—more expense. It is not hard to see why small
firms get no further than accounts and word processing, using
the computer as a sort of magic typewriter. Firms of four partners
or fewer constituted 83% of the total in 2002. These are the realities
of computer use in the profession. It is no use airily asserting
that much more use could be made of computers and that this, by
implication, would improve their performance if they choose to
adopt legal aid. CDS and CLS seem to be doing something to increase
access for firms who wish to transact business with them by computer
but there are quite strict limits to how far this can go.
There is one area where I believe use of computers could
be expanded dramatically and at modest cost; no need to convert
the senior partner. A single domestic scale, £800 computer
with a broadband connection at £15 per month will give effective
access to the Internet. I have tried to suggest in the Annex to
this paper the range of resources now available. Their recognition
and regular use by litigation staff would make a noticeable contribution
to handling their workload.
It may seem unlikely that pro bono work could make
much contribution but I believe it may have a future in one particular
way. The growing number of solicitors who feel that their duty
to perform some kind of legal aid service is negated by the present
and growing degree of control are a resource of experience and
skills waiting to be called upon. To lay upon these lawyers a
duty to provide a few hours (or equivalent cash) for the local
CAB, advice or law centre, or to run their own scheme in a parish
hall, would go some way to restoring this important work. Organisation,
of the lightest, should be local, but there would be a profession
wide obligation to report fulfilment of the duty—attached
perhaps to the reporting of Continuing Professional Education.
I hope to develop the idea in detail elsewhere within the
profession, but in brief:
(1) Advice only; no client money to be handled.
(2) Strong encouragement to refer matters if beyond competence.
(3) Members free to take matters to their own offices
if casework needed.
(4) Contributions in lieu of personal attendance would
be used to cover office costs.
(5) A volunteer treasurer and rota organiser.
Very many solicitors have in the past taken part in such
schemes; this proposal raises it to a higher level of consciousness
(and conscience).
How moving it was, at Quarter Sessions or Assizes, when Counsel
rose to speak as Poor Man's Lawyer (it always was a man) in the
tradition of in forma pauperis. The scheme I shall be suggesting
would give the senior partner an admirable excuse for refusing
a golfing invitation with "Sorry. I'm Pro Bono that morning".
Could something as simple as this survive in today's culture of
irony and cynicism, and the advancing tide of control? Worth trying;
the present administration of legal aid has created a large, unused
resource.
Peter Soar
Cambridge
February 2004
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