Evidence submitted by the Society of Asian
Lawyers (SAL) (LAR 89)
BACKGROUND INFORMATION
The society of Asian Lawyers ("SAL")
was formed in 1990 and is one of the UK's largest independent
legal societies. Members come from a cross section of the legal
community. SAL is a non political organisation and receives no
government or third party funding. Its aim is to promote the interests
of Asian Lawyers, the communities they represent and disadvantaged
members of society. This document is drafted by Sundeep Bhatia
the joint Vice Chair and Sailesh Mehta the Chairman who have both
been actively involved in making representations on these reforms
to the Carter review, the Government and the Law Society.
SUMMARY OF
MAIN POINTS
The society of Asian lawyers categorically rejects
Lord Carter's proposals because:
1. They would unfairly and disproportionately
affect BME firms and the communities they serve.
2. The reforms would significantly impede
access to justice for BME communities.
3. Diversity within the legal profession
will be set back many decades.
4. The planned reforms are not Race Relations
Act compliant.
5. The planned savings are disproportionate
in relation to their effects on the criminal justice system.
6. The structure implementation and level
of fixed fees has not been carefully thought through.
1. BME Firms
(a) In 2005 the legal services commission
planned to introduce price competitive tendering for police stations
and magistrates' courts in the London area. An impact assessment
was commissioned which was published in April 2006 and which concluded
that the proposals would disproportionately effect minority communities
and therefore, by implication, breach the terms of the race relations
act.
(b) Lord Carter, in his report, concludes
that his proposals do not disproportionately affect minority firms
or solicitors when looked at on a national basis. This does not
take into consideration the fact that BME firms are not evenly
spread geographically. They are, according to Lord Carter's report,
large regional sections of the country where minority firms and
solicitors are indeed disproportionately affected. The committee
is referred to tables 5.17 and 5.18 on pages 112 and 113 of Lord
Carter's report (thus, for example, table 5.17 indicates that
in London 22% of black and ethnic minority firms will need to
restructure as opposed to 12% of white British firms).
(c) The Carter report does not mention precisely
how many firms will be affected by the reforms, however a report
by LECG, commissioned by the Law Society concludes that 800 firms
will be forced out of business, of these a large proportion will
be BME firms serving local BME communities. It is therefore crucial
that a fully independent impact assessment is carried out in relation
to these reforms before any price cuts or restructuring are implemented.
(d) At present a suspect arrested at any
Police Station in the country can request a solicitor from any
firm that holds a criminal contract. This would include firms
with fee earners who might speak that suspects native tongue or
empathise with their culture.
(e) A substantial reduction in firms and
the proposal whereby only 20% of work on own client cases can
be conducted out of an area where firm has a contract will significantly
reduce choice and will mean that suspects would not be able to
select solicitors who reflect their culture and language.
(f) Lord Carter's report further advocates
that all initial telephone advice, whether duty solicitor clients
or own clients, will be handled by a LSC funded telephone call
centre called CDS direct who will then pass on calls to the relevant
duty solicitor or own solicitor as and when the need for interview
arises. This means that the suspect, whose native tongue is not
English, will be unable to speak to a sympathetic solicitor who
empathises with them on a cultural level and who understands their
language. It also means that if no police interview is going to
take place then the firm that usually represents that client will
not be aware that the client has been arrested.
2.
(a) Fixed Fees for work will mean a deskilling
of the profession and will have a knock on effect on the quality
of service provided. At present duty solicitors, conducting police
station work out of normal office hours, are paid a percentage
of the professional fees the firms they work for are paid. A normal
percentage is 50-60%. In London the out of hours payment for duty
solicitor work is around £70 an hour. Thus staff are paid
£35-£40 per hour.
(b) The reforms wish to replace this system
with fixed fees per case of £316 (in the London area costs)
which includes VAT and which is paid regardless of how many times
a suspect has to return to the Police Station and which sum includes
travel and waiting for all attendances. It will therefore not
be possible to pay current rates to staff or agencies when fixed
fees are introduced in March 2007.
(c) The only staff who will therefore attend
Police Stations out of hours at substantially reduced rates, will
be accredited representatives with as few qualifications as possible.
They will inevitably be inexperienced and, despite peer reviews
there is no substitute for experience. The number of miscarriages
of justice is likely to increase.
(d) In many ways representation at the Police
Station is the most important part of any case. If a client is
improperly advised at this stage then it does not matter how good
any advocacy provided at a later stage is. The general effect
of fixed fees will be to send less qualified staff to both courts
and police station. The preferred supplier scheme and peer review
cannot ensure high standards are maintained particularly as peer
review is carried out at three yearly intervals.
3. Reduced Diversity
(a) The government is keen to increase diversity
in the legal community and is keen for judges to be selected amongst
BME lawyers.
(b) Criminal Justice is one of the few areas
where BME firms currently compete on an equal basis with larger
longer established non BME firms. There is therefore a wealth
of talent from which to select individuals for high office. However
the effect of the reforms will be to reduce their influence and
thus to reduce this pool.
(c) Lord Carter's proposals seek not to award
new criminal contracts to firms currently billing less than £50,000
per annum on criminal work.
(d) Tables 5.17 and 5.18 of Lord Carter's
report shows that, on a regional basis, BME owned firms and consequently
the solicitors they employ, will be disproportionately affected.
The proprietors of these firms will be forced to (i) merge (ii)
be employed as fee earners by non BME firms (iii) form consortia
(iv) withdraw from criminal defence work or from legal work in
general.
(e) All of these options will lead to their
diminution within the legal community. Many of these lawyers will
have left existing non BME firms after reaching a glass ceiling.
These solicitors, in order to advance themselves have taken control
of their destiny by means of establishing their own firms which
have successfully competed in the existing unfettered marketplace
alongside larger and longer established firms.
(f) In place of entrepreneurship and hard
work Lord Carter's reforms seek to protect minority solicitors
by introducing monitoring and by compelling firms to produce diversity
policies.
(g) The society has no faith in the ability
of such proposals to protect the influence and presence of BME
solicitors in the criminal justice system. Moreover such proposals
do nothing to safeguard the presence of BME solicitors at the
highest levels of the criminal justice system.
(h) The reforms advocate loans and grants
to allow firms to merge, streamline and become more efficient.
However the Society has the following concerns over these proposals
(i) The Law Society have not published any details as to how and
when such grants and loans are to be made available. (ii) The
report lays emphasis on increased borrowing. Criminal defence
firms operate at low profit margins due to, (a) the fact that
there have been no rate increases since 1996 and there have been
decreases in the amount payable for telephone advice and return
on bails during that period. (b) Many criminal firms already have
large borrowings and increased borrowing together with substantially
lower rates are likely to overstretch such firms and to put them
out of business.
(i) Small BME firms offer opportunities to
BME lawyers who are not taken on by non BME firms. The disappearance
of such firms will once again reduce diversity in the criminal
justice system. The reforms will also cause a further reduction
in recruitment, since low wages, low fees and longer hours will
not encourage cash strapped students to enter the profession.
(j) The neutering of duty solicitor status,
as a result of allocating duty slots to firms on the basis of
historical capacity rather than on the basis of the number of
duty solicitors, will also make the work less attractive to BME
students.
(k) The reforms will loosen the regulations
and will allow less experienced staff to do duty solicitor work.
Thus the amount paid out of hours will be reduced and there will
be no incentive on solicitors to become duty solicitors. Thus
the work will become less attractive due to the lack of a career
path.
(l) The Society's own research suggests that
many BME proprietors of criminal justices firms are considering
withdrawing from criminal work if the proposals, as currently
drafted, are introduced.
If this happens, a valuable resource
in the criminal justice system will be lost and BME clients who
are processed by the criminal justice systems will feel disenfranchised
as a result of not seeing themselves reflected in the advocates
or solicitors representing them or in the Judges trying their
cases.
If this valuable resource is
lost and specialist BME firms disappear, then the government and
the LSC will not be able to persuade them back into practice.
It will be a case of once bitten twice shy.
(m) The proposals, as currently drafted,
will also result in the disappearance of many specialist BME firms
who obtain their cases by means of recommendations and ties with
their local communities rather than by means of access to duty
solicitor schemes. The reforms need to take into consideration
the fact that such firms provide a valuable role to the BME communities
they represent.
(n) There will also be a knock on effect
on BME members of the criminal Bar
BME firms often (but not exclusively)
instruct members of the criminal bar who reflect their clients
linguistic and cultural needs.
If the small criminal practices
instructing BME barristers disappear then the criminal practices
of those BME barristers are likely to disappear with them. If
800 firms are going to disappear then this effect will be substantial.
4.
(a) The implementation time table is not
realistic. The fixed fees (amounting to rate reductions) in March
2007 are being implemented before any planned efficiencies under
Lord Carter's proposal are introduced.
(b) The current rates mean that small firms
operating at tight margins will be forced out of business unless
the rates are rethought or any rate cuts are not brought in until
such time as the planned efficiencies have been introduced. It
is not possible for small firms to restructure themselves efficiently
by March 2007 in order to survive the effects of these cuts.
(c) The fixed fees at Police Stations are
unrealistic in any event. The removal of a travel and waiting
element fees at the Police Station and the Magistrates' Court
will impact heavily on BME firms.
(d) Many specialist BME firms represent members
of ethnic communities outside of the geographic area where they
operate due to recommendation and due to possible non availability
of BME firms in areas where those clients live. As a result of
these reforms those defendants may find it difficult or impossible
to obtain a solicitor they can empathise with linguistically or
culturally due to the removal of travel and waiting along with
the 20% own client out of area.
(e) The society also fears that the litigators
fee proposals at the Crown Court will significantly reduce income
in the Crown Court for solicitors due to their current inflexibility
and lack of enough suitable proxies. More research needs to be
done in such areas in order for the system to be workable.
RECOMMENDATION
(a) Before any of these proposals are introduced
a full impact assessment needs to be conducted as to the effect
of these reforms on BME firms, solicitors and BME communities.
(b) The LSC and Government should reconsider
the 20% own client out of area rule. Firms should be allowed to
represent own clients wherever they are arrested. The fact that
such firms will not be paid a travel and waiting element is an
incentive for them not to do so.
(c) The LSC and Government must reconsider
the decision for all telephone advice, both own and duty solicitor,
to go via the CDS direct call centre. Such a move destroys the
perceived independence of criminal defence firms and will alienate
non English speaking clients and the long established goodwill
between firms and the clients they represent.
(d) The decision to allocate duty solicitors
slots to firms on the basis of historical capacity rather than
number of duty solicitors, should be reversed since it destroys
the career path of young solicitors in criminal defence work and
will inevitably lead to a deskilling of representation at police
stations.
(e) The level of fixed fees at the police
station needs to be revised. The current fees represent a significant
decrease in income which will cause many firms, BME amongst them,
to shut their doors.
(f) Fees should not be reduced until such
time as the perceived "efficiencies" under Lord Carter's
proposals have been implemented and firms have been given sufficient
time and opportunity to restructure.
(g) The litigators graduated fee scheme needs
to be re thought so that sufficient proxies are introduced.
(h) The exact nature of grants and loans
being paid to firms to restructure and to update IT systems must
be published in full and implemented before any reforms, fixed
fees or price cuts are introduced.
(i) Unless the government can show that these
proposals are Race Relations Act compliant they should not be
implemented.
Sundeep Bhatia and Sailesh Mehta
October 2006
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