Should family firms refuse legal aid work if it is uneconomical?

divorce

I was very interested to read the other day that the Law Society has published a practice note stating that firms holding a criminal legal aid contract may refuse to accept legal aid work if it is not properly remunerated. I suspect that there are many criminal legal aid lawyers up and down the country who are saying: “about time”.

Tying a firm into a contract that basically says that you must undertake all legal aid work that comes your way irrespective of what you are paid for that work is surely both absurd and unfair. Rates of payment for criminal legal aid work have not increased since 1998, since when the total rate of inflation has been 67 per cent. In effect, over those years criminal legal aid lawyers have had a pay cut of about 40 per cent, by my calculation. How many other workers in this country have suffered such a cut? I’m sure that for most workers there would be uproar from the unions if it was even suggested.

In these circumstances it can only be right to say that criminal law firms are not obliged to do legal aid work if it is not properly remunerated. Of course, there may be considerable argument as to when the remuneration on offer from the Legal Aid Agency is ‘proper’, with factors such as the firm’s location to be taken into account, but my view is that is should simply be up to the firm. After all, law firms are businesses and businesses in other fields are free to decide whether it is worth their while doing a particular piece of work. Businesses that regularly do work at a loss are not going to last very long.

So the question is, should family firms refuse legal aid work if it is not economical?

If the answer to that is ‘yes’ then the implications could be extremely serious. Just consider some of the types of family work that lawyers still do under legal aid. In particular, domestic violence work springs to mind. Would a law firm refuse to act for a client who was a victim of domestic violence, because the work was not properly remunerated? That would be an extremely tough call to make, potentially leaving the client without the protection of a domestic violence injunction. And what about child care work? If firms in a particular area all refuse to do that work, then where are the parents to go? There are, of course, many family law litigants now having to manage without legal aid representation, but even the government understood that there were certain categories of litigants who should not be denied representation, hence domestic violence and child care were exempted from the cuts to family law legal aid back in 2013.

In the end however, like it or not, law firms are businesses, not charities. Businesses must make a profit to survive. Law firms have huge overheads (which have not stood still since 1998), and lawyers are highly skilled people doing difficult work, who are entitled to a decent income. Most lawyers already do free pro bono work – the rest of their work should at least provide a modest profit, but much of the legal aid work they do is done for very little profit, or even at a loss. There must come a point at which they have to draw a line and say: “no more”. The alternative to refusing to do certain pieces of work would be to give up doing legal aid work at all, as many firms have already done. This would, of course, lead to more and larger legal aid ‘advice deserts’, areas of the country in which there are no legal aid providers at all. But then if firms go out of business because they run at a loss, then the effect for the public would be the same.

Of course the simple answer to the problem would be for the government to pay legal aid lawyers a proper rate for the work that they do. However, successive governments have refused to do this, over many years. Perhaps that tight-fisted short-sightedness is about to come home to roost.

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John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

Andrew - June 6, 2017 at 8:08pm

So a woman claiming to be the victim of DV may after all end up on a level playing field with the man she accuses. Both unassisted. It’s a sort of justice, I suppose. I just hope that when he denies it she won’t be allowed to cross-examine him in person because that wouldn’t do, would it?

Paul - June 7, 2017 at 10:08am

No such thing as justice within capitalism. Call it what it is. Corruption. Buy a result. Rich screw the poor. Is this a call for some kind of industrial action ? Can’t get legal aid/solicitors benefits re-enstated so you will refuse work till they pay more. Its embarassing that people call this justice really.

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