Are legal aid clients really second class citizens?

‘It’s a myth that clients get the same level of service on legal aid rates as when they pay privately - that disappeared about 10 years ago.’ So said Ian Kelcey, a leading defence lawyer and a senior partner at Bristol firm Kelcey & Hall here.

If that was the case, then it was news for many defence lawyers living under the illusion that they owed an equality of service to both those rich enough to pay and those who depend on the state. ‘There is no excuse for not doing your very best for each and every client (which I am sure Ian’s firm does), or for reducing the levels of service you offer if you intend to carry on with criminal defence work that is state-funded,’ wrote defence lawyer John Storer yesterday on www.thejusticegap.com here. ‘No one is forced to take on a legal aid contract; it is a matter of choice for each firm.’

Quite. By the way, Kelcey was calling for criminal firms (in the words of the The Law Society Gazette) to ‘make it clear’ to legal aid clients how ‘their publicly funded status affects the service they get’. ‘We can’t supply a platinum level of service with base metal rates of pay,’ he warned.

Kelcey, a Law Society council member, argued that firms needed to take a look at the ability of the advocates. ‘It’s hard for young advocates to resist the senior partner who says they should go and be the junior on a murder,’ he said.

If lawyers start giving their legal aid clients a second-rate service, then maybe they stop doing publicly funded work. That’s not to diminish the pressures on defence firms. Professor Richard Moorhead has just been appointed the first chair in law and professional ethics at University College London. Unsurprisingly then, the academic has a more nuanced view.

‘Lawyers have to provide a competent service, whatever they are paid or they have to decline the work,’ Prof Moorhead says; adding that he has ‘great sympathy’ with Kelcey’s concerns about ‘economic pressure on quality’. ‘But telling clients to expect poorer quality service smacks of an attempt to shift practitioner anger at legal aid cuts to clients. It's a plan that will only backfire: more complaints, less business, weaker practices and an erosion of the belief in equal justice for all.’

Equally, Prof Moorhead argues that it ‘must be the case that legal aid clients get lower levels of service. Otherwise, why charge private clients more?’ Continuing that line of thinking, Prof Moorhead asks: ‘Do firms have to advise those clients there should be a more cut price option which they can better afford? Isn't that the logic of Mr Kelcey's position?’ he asks.

Kelcey’s case was hardly bolstered by seemingly supportive comments – anonymous obviously. ‘I am delighted our firm lost its legal aid contract for family matters,’ wrote ‘Richard’. ‘Our firm has now started to resemble normality and the waiting room no resembles the green room for the Jeremy Kyle show. They would phone up, making demands, and often eat the time of senior management who ended up being roped in because they got irate and complained. Often private clients would suffer as far too much energy was being expanded on these clients. Now we can focus on private clients, have some tranquility, and begin to make money.’

The charming ‘Richard’ later returned to clarify a few things (‘No, I am not ashamed of myself...’). The family legal aid contract ‘nearly brought our firm to its knees’, he said. Plus he had another anecdote to relate. ‘I will never forget the expression of discomfort on the face of a private client who was paying over £1000 for his will and IHT advice, when he had to sit in our waiting room next to a woman who had brought in her own supply of special brew and her brood of children.’

There should be a collective sigh of relief on the part of legal aid clients everywhere that Richard’s firm has abandoned publicly-funded law. It is shocking that someone with such an absence of empathy should have been let loose on vulnerable clients. Good riddance, I say.

Ian Kelcey rightly raises a critical issue: how the structural pressures on the criminal defence professional negatively impact upon the quality of defence. It was a theme of Wrongly Accused: Who is responsible for investigating Miscarriages ofJustice, part of the JusticeGap series which came out last month. ‘The financial pressures on solicitors’ practices nowadays are so great that turnover and profit rank far higher than actually doing a good job for the client and ethics come nowhere,’ wrote Maslen Merchant, a legal executive who specializes in miscarriages. It was a provocative article - not everyone agreed with Merchant (as you can see from the comments).

At the launch of Wrongly Accused, Gareth Peirce put her concerns in a characteristically strident fashion. She pointed out ‘an ever present danger’ in every case for a miscarriage. ‘Lawyers are at the heart of many cases of the wrongly accused and wrongly convicted: wrong, shoddy, lazy representation. It is a recurrent theme. It should haunt us.’ She pointed out that the Birmingham 6’s original lawyers who saw them first ‘when they were beaten up, got their legal aid forms signed but failed to note their injuries’.