Criminal commotion

Criminal legal aid solicitors met in London last week to discuss the impending introduction of best value tendering (BVT) by the Legal Services Commission (LSC). In her opening speech, Joy Merriam, chair of the Criminal Law Solicitors Association, painted a grim picture warning that up to 80 per cent of firms might face closure.

Merriam talked about her own experience of closing her firm saying, 'It felt like a divorce'. With redundancy payments, run off insurance and other costs, she said the bill for winding up her practice came to £100,000. She feared that due to tighter LSC rules on payments many firms would be without cash to close properly. She pledged they would, 'Fight the introduction of best value tendering and we have the heart and belly to take on that fight'.

Legal aid minister Lord Bach addressed the conference after Merriam. Bach’s speech started with some pleasantries linked to the 60th anniversary of legal aid, but he moved on to say that, 'No other field of government expenditure has grown as much as legal aid. We have to face the fact total expenditure is not going up. Don’t believe any promises from the opposition'. This drew the first of many heckles from the hostile audience, 'We don’t believe them and we don’t believe you'. Bach argued that they had to identify the priorities for expenditure on legal aid and said, '… in a recession I want to protect social welfare law expenditure'.

The conference also heard speeches from LSC chair, Sir Bill Callaghan, defending BVT and Des Hudson, chief executive of the Law Society, who was critical of the proposals. Hudson believed the government and LSC had reneged on a promise made by the former chair of the LSC, Sir Michael Bichard, to evaluate the BVT pilots fully prior to any general roll out. In a question and answer session Callaghan answered this point. Citing the recession he said, 'Times have changed since Sir Michael made his comments'.

While a few months ago the public position among all practitioners was hostile to BVT, off the record some would say they were relaxed about the proposals believing their firm would win. Since the publication of the document setting out the LSC’s proposals for implementing the scheme the view of practitioners in public and private has shifted decisively against BVT. Many cannot get to grips with the complex bidding process proposed. There is also bitter resentment that the Bar got a deal on very high cost cases by using a boycott, while in contrast many solicitors now face a Hobson’s choice of risking a 'suicide bid' to keep police station and magistrates' court work or pull out at a time when the recession is making it difficult to switch into other areas of law.

LAG fears a chaotic scramble to make bids followed by recriminations and litigation, which will impact on services leading to miscarriages of justice. A pause to properly evaluate the pilot schemes before rushing to implement BVT across the country would seem to be the only sensible option.

Tesco Law for social welfare law?

The Legal Services Board is keen to press ahead with plans to licence the first alternative business structures (ABSs) by 2011. ABSs will allow lawyers and other professionals to work together (in perfect harmony no doubt) in providing legal and other services. The legal profession gets worried about the prospect of the 'Tesco Law' scenario, big firms using their branding and marketing clout to monopolise personal injury and other work. The Co-op has already dipped its toe in the legal services market as it provides will writing and other services to its membership.

The reality of modern life is that people are more likely to be made aware of the need to write a will, for example, by picking up information at their supermarket or increasingly their supermarket website, than they are by calling into their high street solicitor's office. Provided conflicts of interest are regulated against and the quality and independence of advice is not compromised, access to legal services should be improved by the ABS model. Also, the experience of opening the conveyancing market showed that increased competition in legal services does drive down prices, which is always one of the main barriers to access to justice.

What LAG fears though is that ABSs will just become another way of delivering legal services in the profitable areas of law which lend themselves well to a commoditised bulk processing - conveyencing (at least pre-credit crunch) and personal injury being the obvious examples. Poor people, who need legal advice on benefits, housing and other social welfare matters, are not so profitable and providing services to them might not sit so easily with a company’s image. LAG also has a sneaking fear that such businesses might not be so keen on promoting employment and other rights if this would compromise their core business.

Nevertheless ABSs do present an opportunity. It would help access to justice immensely if supermarkets and other businesses with high public recognition could act as a conduit for accessing legal advice for people facing housing, debt and other common legal problems. Perhaps it is time for some creative thinking - in the future could we see a large legal aid firm or Citizens Advice Bureau forming an ABS with Asda to provide social welfare law services paid for by legal aid?