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Opinion column: David O'Hagan

19 August 13

Why, with its work on contracting, is the Scottish Legal Aid Board setting out to decide how law firms should be run? The world is different from what it seems to think

by David O'Hagan

So the Scottish Legal Aid Board want to tell us all how we should be running our firms? Is there a one-size-fits-all model? Well, let’s see.

Big firms? Pre-summary justice reform, the biggest fee earner was Ross Harper. Sadly we know how that ended. Now it’s SLAB’s very own PDSO that is the biggest “earner”. Most lawyers view it as the most inefficient “firm” in Scotland, despite it being given so much work.

Sole practitioners? Although lacking the facilities of the larger firms, they can minimise overheads and ensure that the cuts can be absorbed. Those doing agency work also provide invaluable back-up to larger practices left short on any given day. In my experience of agency work, all firms need help at times, regardless of size. This crucial facility will be lost under contracting.

The reality is that our world is highly unpredictable. A packed diary one day, empty the next. Jury sittings play havoc with diaries, regardless of firm size. Out-of-town cases, custodies etc can leave us all stretched at times. It doesn’t fit the pretty world of statistics and figures that SLAB would like to pigeonhole us into. Having solely large units lacks the flexibility to allow us all to make the system work. We have absorbed the cuts through our diversity as a profession.

We may find in time that firms require further cutbacks, or possibly even close. And although undesirable, shouldn’t this happen naturally rather than SLAB carrying out some sort of law firm euthanasia? If firms can satisfy peer review, and most importantly clients are satisfied with the service, is this not enough? Why would SLAB know how to run a law firm better than those who actually do it? I see no proper basis for the contracting argument, other than that SLAB are concerned we’re not all going bankrupt after the barrage of cuts in recent years. I am cynical about the real reasons for this.

I know there are some who see this as a business opportunity. What better way to increase income than to get SLAB to kill off some competition? But this opportunity will come at a cost. Contracting will mean you dance to SLAB’s tune. As history has shown, once you’ve agreed to something, the goalposts will shift to your detriment soon after.

The criminal bar will no longer be independent from state interference. What happens when you disagree with SLAB or the Government, but can’t challenge them for fear of losing your contract? What happens if the new model firms realise they cannot meet the requirements of their contract after yet another cut in fees?

SLAB want stack ’em high, plead ’em cheap. Experienced lawyers are an unnecessary expense and a nuisance to them. This is despite them already getting great value for the taxpayer’s money. Contracting can get rid of some lawyers and allow SLAB to control the rest. There will be a necessity to employ cheap assistants and this will lead to a skills gap.

The quality of provision will be greatly reduced. Clients who over time have built up a relationship of trust with their lawyer may be prevented from instructing them. It is a restriction on client choice. The smooth running of the courts will be affected by having fewer lawyers, particularly in the busier courts. Miscarriages of justice will become more of a risk, particularly with the removal of corroboration.

It has been said: “What is the alternative?” If there is a concern with provision, then how about funding it properly? How about ensuring that the money gets to service providers, rather than the pensions of SLAB executives? How about letting bank managers, clients and market forces dictate, rather than SLAB?

One can only hope our representative body would not advocate any process, the consequence of which is that its members lose their firms and livelihoods. If contracting will cost jobs, it should not be given any sort of approval, and indeed must be strenuously opposed by the whole profession.

We should not undervalue our own worth once again. At some point, surely the Law Society of Scotland must stand up and tell SLAB, and the Government, enough is enough? Is that point when jobs and firms are being lost? However, I say that more out of hope than experience.

David O'Hagan is a sole practitioner carrying out criminal defence and agency work

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