I invited anyone who wished to contribute to the debate to email their blog to me and I would be happy to host. Kent solicitor Oliver Kirk has done just that. Here is his contribution.
A response to Mr Myerson QCs response to Mr Csoka QC
I am writing this brief response, I hope to clear up what some see as ambiguities or inconsistencies in the position of solicitors, and to help those who may still be undecided in their decision on the current ballot.
In case it is not abundantly clear- many solicitors firms are currently in a precarious state: their futures uncertain awaiting the outcome not only of the current action- but also of their LAA bids- or indeed for the fall-out from their failure to bid. All are united in their uncertainty as to whether the new, significantly lower rates can possibly be financially viable. (My own view is that they are not.)
Why don’t solicitors withdraw their bids?
The LAA is the principal provider of work. The only show in town. So, if a firm either fails to bid- or withdraws a bid, then it is then condemned to rely only on private and own client work. In the case of most firms large enough to bid, those two sources of work are simply not a viable option.
Own client contracts are, by their very nature wasting assets- criminal clients often find themselves in custody for lengthy periods have difficult personal circumstances, which result in tragically early deaths, and of course some reform or were never guilty in the first place- all of which mean that repeat business cannot be relied upon. Furthermore, clients, as well as being fiercely loyal, can also be a perfidious bunch, meaning that it is never really possible to count upon return business. An own client contract alone may only provide an unstable and unpredictable revenue stream over any significant period of time. Unsurprisingly, most firms need the new blood of duty cases to refresh their client base.
Why not withdraw a bid to do economically unviable work? Once your bid is withdrawn- that is “Game Over”; if some form of improved deal is put on the table in due course- you won’t be part of it. If some firms withdraw their bids, and others do not, those who have withdrawn make their own situations worse, not better. Think of it in these terms as well: most owners of firms will have made significant personal investments in their businesses. The buck also stops with them if the business fails- their homes, and any other assets are quite likely to be tied up by way of personal guarantees to banks. It would therefore be personally and professionally reckless in the extreme to withdraw a bid in the hope that a better deal might emerge that the firm could be part of.
Bidding and getting a contract therefore becomes the only possible way of surviving- in a sort of “gruel tomorrow” pact that allows a firm so stumble on in the hope of staving off insolvency for a little longer. The alternative of withdrawing a bid would, for many firms mean the prospect of having to make significant redundancies at time when it is unlikely that the funds are available to pay even those.
Please consider also that many of the bidders may be consortia of smaller firms and sole practitioners, who have already invested many, many hours putting a bid together. To withdraw such a bid now after making such investments of time when to do so might be curtains for the firms involved is a gamble too far . This is especially so, when you consider how effective the current action appears to be in its early days in getting the MOJ to think again.
No-one should be under any illusions- the current rates of pay do not incentivise work. They do not encourage a “no stone unturned” approach to a clients’ case. They encourage the opposite. Equally, the current rates of pay are such that solicitors have been forced out of the lower courts into the Crown Court as a means of remaining in business.
If reduced rates and DC come in, various things will almost certainly happen:
1) A significant number of small “High Street” firms will pull out of Criminal Legal Aid altogether whether as a commercial decision or because they do not get a contract. Many such firms or departments are operating on such tight margins that the July cuts followed by the January 2016 cuts will finish them off before the MOJ even start their “2016 Review of legal aid rates”.
2) Other (probably smaller) firms who do not get duty contracts will soldier on with own client contracts- but with diminishing volumes and cuts to remuneration, will probably go under. I pause to ask myself whether it is these same firms who currently instruct the Bar?
Of course they are! These are the firms who instruct the junior Bar on a daily basis, whether to do their Magistrates Court trials or their Crown Court cases; the same firms who once discovered and instructed those who now lead the Bar. Those firms will wither and die.
3) Those larger firms who do get contracts undoubtedly keep as much advocacy in-house as possible. They will recruit from the ranks of an underemployed Bar who will be wondering where their instructions have gone….
So- when asking yourself Mr Myerson’s questions and deciding how to vote, please remember that if you are currently briefed by a solicitor- that firm may not be around for long to brief you if it has not applied for or does not get “awarded” a contract. As for those who apply for and get a contract the margins will be such that they will have to try to keep all their work in-house.
This is the Bars decision.
This is the Bars vote.
Make no mistake, this is for Our future.