Monday, 23 November 2009

Bar moves with the times

Historic reforms on the regulation of barristers were approved by the Bar Standards Board (BSB) last week. In response to mounting pressure the BSB (see previous blog 'Bar behind the times') has agreed that barristers should be allowed to establish partnerships with solicitors and with other barristers. The rule change ends 800 years of tradition.

Barristers were in danger of losing out to solicitors as without the change they would not have been permitted to join the new legal disciplinary practices (LDPs). LDPs allow legal and other professionals to form partnerships and permit 25 per cent ownership by non-lawyers. In LAG’s view it makes sense that barristers can now bring their advocacy expertise to such partnerships as this will enhance the service to clients and hopefully reduce costs.

LAG believes that some chambers might move to form LDPs or other legal entities to enable them to compete for blocks of work from the Legal Services Commission and other organisations. The rule changes also alter the role of self-employed barristers as they will now be able to take witness statements, correspond with clients and provide advice in police stations (although this would rule them out of representing the client in court).

There will inevitably be some blurring of the distinction between solicitors and barristers with these rule changes. They could be a major stepping stone on the road to a unified legal profession. The Bar will only survive by maintaining its reputation for providing independent specialist advocacy services.

Monday, 9 November 2009

LSC clamps down on claims

In October 2009, the National Audit Office published a critical report on the Legal Services Commission's (LSC's) overpayment of solicitors and other legal aid providers. According to the report, £24.7 million was overclaimed in 2008/09. The auditors found that providers had failed to give sufficient evidence on the case file to support the level of claim or demonstrate that the client was eligible for legal aid.

Immigration cases were highlighted in the report. The auditors reported that there were a number of incidents in which practitioners charged the higher asylum case rate when the lower immigration one should have been claimed. The largest amount of overpayments, £10.5 million, was in immigration and family cases.

Speaking at the first meeting of the All Party Parliamentary Group on Legal Aid on 3 November, the LSC's chief executive Carolyn Regan blamed problems with the LSC's manual system of case file administration for the overpayments. She said that it is due to be replaced with a computerised system. She also pointed out that the figure for the overpayments was only 1.2 per cent of the total fund.

In a move which LAG believes is related to the National Audit Office report, the LSC has announced a clamp down on legal aid providers opening case files for 'recurring clients'. It is asking 100 legal aid providers to look at ten per cent of their cases in which a client has had more than one file opened in the last six months. It is threatening to recoup any money it believes has been wrongly claimed for such cases.

In LAG's view, many of the problems which the LSC has experienced with overclaiming can be resolved with a computerised system. Similarly, claims for the same client, but with different problems, can be tracked more effectively with such a system. Let us hope that the LSC gets the computer system right this time - its record so far has not been good. The LSC Online system failed in November 2007 and had to be suspended, meaning that providers had wasted many hours completing electronic returns.

But we would argue that verifying clients' income will continue to cause problems regardless of any improvements to the administration of the system. The reality is that dealing with clients who often have chaotic lives inevitably leads to difficulties in getting them to produce the relevant pieces of paper to prove their entitlement to legal aid.

As regards multiple cases, while there might be some overclaiming, the vast majority of such claims are justified as everyone involved in legal aid policy agrees that many civil legal aid clients face clusters of problems. We would argue that claims for the same clients in multiple areas of law are a sign that legal aid providers are giving the joined-up service which clients need.