5. Memorandum from Michael Robinson,
Emmersons Solicitors
Level 1 Legal Help attracts a fee of about £90
plus vat. A solicitor undertaking private client work can charge
about £160 per hour plus vat in our area. That puts into
context the remuneration rate for level 1 work. Add into that
an hourly recovery rate of £70 per fee-earner, you can see
that any level 1 claim that takes more than 1 hour 30 minutes
to process is non-profitable.
Add into that the poorly drafted Unified Contract
and Specification (which are a tribute to cut and paste ability
as opposed to thinking skills) and the difficult-to-find LSC guidance
on obtaining evidence of means and the fact that the LSC, despite
the fact that it has been auditing family fixed fees for some
time, has not produced more up-to-date, comprehensive guidance
then you can see why solicitors might be in a mess.
The requirement for solicitors to obtain documentary
evidence before starting giving advice is an incredible concept.
Why? In essence it is not practical, causes unnecessary delay
and forces solicitors to do a lot of work for free. ("Oh
Dear", I hear you cry. What do you do for free?). "Free"
does not pay the bills.
1. The LSC recognises that clients "burn
out" if referred too often from one place to another—a
reason why CLACs have been established. Asking a client to keep
getting documents wastes time, delays advice giving and fails
to account for the fact that clients may be anxious for advice
yet not be in an emergency situation. Repeated requests for evidence
will cause clients to fail to return. Our audit report is evidence
of that.
2. The level of administration of the evidence-obtaining
process is disproportionate to the remuneration.
3. Those who create these systems tend to
be salaried people who don't seem to fully understand that if
a fee-earner does not earn fees then there is no money to pay
the fee-earner his/her salary, nor is there money to pay support
staff nor to invest in capital expenditure.
4. How is a solicitor supposed to orgainse
his business to ensure that clients bring all the documents required:
read a prepared script to each client when they book an appointment?
Send a letter confirming the appointment? See the client and send
them away with a list of documents to bring to the next appointment
(first appointment is enforced pro bono work)? What if
they don't come back? See the client, give them advice and don't
claim unless one has all the relevant documents? More enforced
pro bono. One can sue a private client but not a client
who may be entitled to legal aid.
One wonders how the CLACs and the CLA telephone
advice service deal with these issues? Aren't they salaried in
any event?
The result of the current Family Fixed Fee Costs
Compliance Audit process is forcing solicitors to delay seeing
clients until all the relevant documentary evidence is produced.
Below is a comment from a solicitor audited
by the LSC.
"We have been operating a zero tolerance
approach to documentation since we got the kick back on our intitial
audit in the summer. The problem is that, unless the client is
on a straight forward passported benefit the administration of
the scheme at this strict level defeats the object of it from
everyone's point of view, especially the client. Certainly, the
cost of actually opening a file on this basis is swallowed by
the level 1 fee so it really is starting to feel like what is
the point?!!"
Lord Bach, Carolyn Regan, the NAO and politicians
fail to understand the value of legal advice to people. They are
obsessed with bureaucacy, audits, evidence of means, means-testing
and value for money—which are all excuses for causing solicitors
to do work for nothing.
In case you have not worked it out legal aid
spend has risen because more people have become entitled to it.
More people have become entitled to it because the Government's
systems don't help or support the very poorest and those who are
not so poor. These people then have to get legal advice to correct
a decision of a government department (eg re education or benefits)
or to advise as to debt or immigration etc.
The rise in legal aid spending is not a success
of a quasi welfare state but an indication of how failed the systems
of governance are in England and Wales. Other countries spend
less on legal aid because they don't have to spend as much as
is spent in England and Wales.
Until there is a proper discussion with solicitors
and a proper review of the justice systems and then a review of
how those systems will be funded you will continue to make a mess
of legal aid "reform".
They have failed to develop with solicitors
reforms of the legal aid system which make sense and allow ready
access to quality legal advice for those who need it.
Clients are now being presented with hurdles
before getting advice so a solicitor can successfully claim £90
plus vat—which doesn't even bring with it a profit to the
firm in any event.
The National Audit Office fails to understand
the realities of solicitors in private practice in relation to
legal aid and sees nothing wrong with solicitors checking each
claim before submitting it. How much non fee earning time do they
think that a solicitor can spend checking the work of another
solicitor.
The system of fixed fees and all that goes with
it is bureaucratic nonsense developed by the ignorant without
any concept of the value or worth of the giving of legal advice
and without any grasp of the reality that we and our clients try
to operate in. Theory from the heart of Government and the Treasury
is one thing—trying to get a client from a sink estate in
Sunderland to bring her three screaming children to an office
on the bus with all relevant documents quite another.
My clients will be made aware of the fact that
our requests for evidence of means will be repeated until we are
satisfied because the politicians and civil servants who have
created the system don't care about them and care more about money.
Michael Robinson
Emmersons Solicitors
7 December 2009
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