The Cost to Justice

Darin Millar, senior partner at Bolton firm CMA, penned a blog recently called “What Price Justice?” I invite you to head over there now to read it. It is vital you do. It contains an interesting perspective. This blog is written in response to Darin’s blog so you really have to read his first. So toddle along now and don’t come back until you have read his blog. 

In case you are being lazy, here is another link to his piece. Seriously, go and read it now……you have? Good. I can begin….

Now Darin and I have a number of things in common. We are both criminal lawyers with over twenty years experience. We both write blogs. We both ply our trade in the Northwest. We both have first names that are more often spelt incorrectly than correctly (I am guessing at the last bit).
We part company when it comes to opposing the cuts to legal aid. This does not make either of us a bad person. 

However I would take issue with some of the points that Darin seeks to make in his blog. He makes the point that the hourly rate of a fee earner averages out at £100 per hour. It is important to point out to the casual observer that this is not the income of the fee earner. This is what they bring into the firm. As Darin rightly points out this is half what private clients pay. So as things stand at the moment the taxpayer is getting a whopping discount from the going market rate. That is a hell of a good deal. The £100 is already based on efficient working practices and a substantial case load. 

Yet the Government wants more. It wants to cut more. So the current £100 per hour is going to have been cut further by February 2016. In order to maintain the £100 per hour firms are going to have to do more cases with increasing “efficiencies”. Many firms are as efficient as they can be. Efficiencies are a small step away from corner cutting. 

The figures that Darin quotes are difficult to analyse without further information. I would hazard a guess that not all cases in the Police Station or the Magistrates run so easily. Or so conveniently to time that the maths seem so healthy. So the example he gives only needs another 45 minutes at the police station and another hour at court for the hourly rate to plummet. And then there will be occasions when many more hours are involved. For the same fixed fee. (I will add that the example only deals with Darin’s time engaged at the police station and the court. I don’t know, but I would imagine that there is other work undertaken on the case in the form of client care and billing. In addition there may be disbursements from the fees quoted. So the headline hourly rates may be a little misleading, with the greatest of respect. this is why the true hourly rate is more like the £100 he quoted across the full range of cases).

Now let’s take the £82,000 for the fraud case. Yes this is a lot of money. Darin works it out to be £250 per hour. That works out to 328 hours. Now what is not said is whether this figure includes any disbursements such as travel. But let’s take it as representing 328 hours work. Now if the solicitor or a representative of the solicitors attended every day of a trial, 328 hours would be exhausted in about 9 weeks. So this is is one of the “efficiencies” that firms make. Counsel are unattended. I accept that counsel can be at court on their own. Some of the time. Experience shows that we are at court on our own most of the time. And this can and does lead to delays at court and inefficiencies creeping into the system at point B due to an efficiency at point A.

(Caveat time, I am not suggesting this trial was 9 weeks, or that Darin did not attend every day, I simply do not know. The point I am making is that certain steps are regularly taken to make the money go further, and that large amounts of money can be paid in Legal Aid cases, but they are labour intensive). 

And then there are shifts made in the division of labour that has a knock on effect. Some solicitors will shift the burden of paperwork on to counsel wherever they can. So defence case statements, bad character notices, hearsay notices and the like are routinely drafted by counsel. That was the sort of work that used to be done by the litigator, not the advocate. And counsel are operating on a fee scheme that was designed when such a workload was less common. So some firms can only make the fees pay by shifting some of the work that the litigator’s fee is designed to cover on to others. This starts to seem like a very slippery slope. 

The fact of the matter is that Darin is clearly an able and committed criminal defence solicitor. He is not alone. There are many such dedicated professionals. The complaints that Darin makes about the shortfalls in the system, the difficulties we are all aware of, are only compensated for by the talent and dedication of men and women such as Darin. Professionals that go above and beyond on a daily basis to paper over the gaping cracks. 

Are such individuals going to come through in the future? Some will. There are people born with the desire to help. People who enter all sorts of walks of life because of their calling. There are a number of us who were attracted to a career in criminal law because of the opportunity for advocacy and have subsequently realised the importance of the work we do. Our eye is caught by the attractive look of life in a criminal courtroom, only later do we fall in love with the importance of what takes place there. Will the opportunities still exist for these lawyers? Will the lure of other areas of law become too great? Are we only going to be left with those coming out of university with a calling to criminal defence work?

People who have such a calling often work in the charity sector. Theirs is a calling to help others, regardless of monetary reward. This is noble and vital. But this should not be the way of ensuring the proper governance of a nation and the nurturing of democracy. We do not rely upon the good people of the St John’s Ambulance to provide trauma care in the local A and E. The Government should not be planning the health and the future of the criminal justice system on the willingness of people like Darin to strive and adapt no matter what remuneration they receive and no matter how else the system crumbles. 

Of course anyone is perfectly entitled to come to a decision about actions they take to protest about changes made to their professions or the nature of their remuneration. People are entitled to say, as Darin does, that they can make the new system work for themselves and that others should be able to do the same. I would, however, ask those people to think not only of their economic resilience or of their determination to continue to provide quality representation but to look at the risk that such Government policy creates.
And the risk is obvious. If there exist people that are less dedicated than Darin, that are prepared to put profit before quality, a system of poor remuneration actively encourages such an approach. 

Whereas Darin attends the police station, thus providing the client with the benefit of 20 years of his experience, another firm may take the option of sending the cheapest representative with the barest competencies required to maximise the profit. Another firm may fall into the temptation of advising the fraud client who should be pleading to have a trial, just to secure the £82,000 litigator’s fee just to survive that month. These are all risks that a smaller pool of suppliers and a diminishing rate of remuneration create. 

In an ideal world, we would all be Darins. But we are not. And in those circumstances perhaps Darin, whilst not joining us, understands why we see the falling remuneration as something that is not just about lining our pockets. It is about the future of the profession and the future of the system.  

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