Report from Chancery Lane
The main business of the December meeting was consideration of the budgetary implications for the Society before approving the budget and the Society’s business plans for 2008 at the January meeting.
There was some good news regarding income: in 2007 an additional 6,250 practicing certificate fees were paid and there are now approximately 107,000 practising certificate holders on the roll. For the purpose of the budget, the Society will assume no growth in numbers for next year.
There was some bad news concerning expenditure. Implementation of the VisualFiles IT software for the LCS has been terminated. This project had already been significantly delayed because of problems in the past, was over-budget and had cost £2.5 million. The LCS had asked for a further £1.5 million to complete it, and the system would have cost £500,000 annually to maintain. A review by the Law Society group’s IT director identified significant problems with the project which could not be resolved easily because of the extent to which the system needed to be adapted to suit the particular needs of the LCS and the consequent difficulties the system would encounter in accepting standard upgrades without further work being carried out. The LCS submitted that the software would deliver substantial benefits but the Society found that these benefits were unquantifiable and terminated the project. The group IT director is undertaking a review to see how the problems with the LCS’s existing systems can be addressed.
CDS Direct and changes to PACE Code C
The Society has briefed MPs on the Home Office’s proposed changes to Code C of the PACE Codes of Practice which arise from the LSC’s wish that CDS Direct handles all cases where only telephone advice is funded.
The Law Society’s concerns are that:
the detained person will be denied the right to his/her chosen solicitor in every case falling within the remit of CDS Direct;
no account has been taken of the need of clients from an ethnic minority community to instruct a solicitor who speaks their language and understands relevant cultural issues;
the LSC is requiring all requests for publicly funded advice go to the Defence Solicitor Call Centre (DSCC) but if the client is paying privately the police will contact the solicitor direct. This means that the police must learn how the client proposes to have his/her legal advice paid for, which is an inappropriate interference in the retainer between the client and the solicitor. The new procedures make no allowance for the possibility of alternative funding arrangements (such as third party funding or the client’s solicitor advising the client for free); and
where a request for advice in serious cases is put through to the DSCC and the call centre fails to contact the chosen solicitor, the duty solicitor will be sent out. Because of the change to the legal aid contract under which firms work, the detained person will not be entitled to change the solicitor unless and until they are charged, which in serious cases could be many weeks and several visits to the police station later.
The Law Society’s view is that Parliament has never approved such a fundamental change to the rights of detained people which have come about as a result of administrative decisions made by the LSC. The draft PACE Codes, which are due for implementation on 1 February, are available at the Home Office website and are scheduled to be debated in Parliament in 2 weeks’ time.
This is the company to which the SRA granted a waiver to enable it to provide telephone advice to suspects at police stations. The SRA has indicated that it will not suspend the operation of the waiver, which it says was granted on the basis of full consideration of the relevant evidence and in the public interest notwithstanding the representations of the Law Society. The Society is considering what if any further steps can be taken. It is unclear whether the SRA regulates Bostalls.
The unified civil contract
On 21 December, the LSC announced that it is terminating the unified civil contracts that took effect only on 1 April 2007 and will offer new bidders as well as existing contract holders the opportunity to tender for the work. In the meantime, they say that the fixed fee civil schemes introduced in October 2007 (and for mental health work, on 1 January 2008) will continue in force. Ominously, the LSC’s announcement stated “Given the levels of response in the recent Civil Bid Round, this is likely to lead to competition for contracts and work”.
The reason for this announcement is the inability of the LSC and the Law Society to resolve the problems which arose as a result of the Court of Appeal finding that the clause in the unified contract which permitted the LSC to amend the contract unilaterally, with very short notice infringes the EU Procurement Regulations. In the view of the Law Society and its legal advisers, this invalidates the current civil fixed fees scheme. The Law Society considers that there is no need to terminate the unified contracts and the sensible way ahead is to agree a new amendment clause first and then to agree reasonable levels of remuneration for the fixed fees scheme. Further litigation between the Society and the LSC looks inevitable now, and the uncertainty faced by practices which depend upon LSC funded work, which has been caused cynically and deliberately by the LSC look to continue indefinitely.
Council approved amendments to the Solicitors’ Accounts Rules 1998 necessitated by provisions in the Mental Capacity Act 2005 that replaced Court of Protection receivers with Court of Protection deputies.
From 1 January 2008 the SRA’s website will name and shame those solicitors the SRA punishes for regulatory breaches. According to The Times on 3 January, 1,954 solicitors had conditions imposed on their practising certificates in the year from November 2006, while a further 350 were reprimanded. That’s 2% of the profession. Miscreants’ names will remain in this hall of shame for a period of 3 years.
The Legal Complaints Service
The LCS is suggesting to the Legal Services Complaints Commissioner that she should set it fewer targets which would enable it to concentrate on timely responses and getting the complaints handling right. The LCS wants to look at the average cost incurred per complaint. The only information the chief executive of the LCS had was that on average 22 hours was spent per case although she reported that the LCS has no time recording system and this was a crude measure obtained by dividing the working hours available by the number of complaints handled. She recognised that this was a lot of time to spend on a complaint and is seeking to reduce it.
The LCS is continuing its deliberations regarding publishing the names of firms who have not handled their complaints satisfactorily. The LCS is aware that doing so may risk unintended consequences such as reduced access to justice and it is prepared to look at ways of addressing these. For instance, the LCS chairman said that the LCS would consider researching the harm that may be caused by these risks arising against the potential benefit to clients of publication. He also acknowledged that publishing in this way would be setting a gold standard of complaint handling which is not practised by similar complaints handling bodies. How realistic is this? Cynics will note that the Legal Services Ombudsman does nothing but complain about the LCS’s handling of complaints. If the LCS can’t do its job properly but aspires to set a gold standard, no wonder it wanted such an expensive IT system.
David Dixon (Law Society Council member for South Wales)
Centre For Professional Legal Studies
Cardiff Law School
TEL: 029 2087 4941