Growing arms and legs

Can there be an issue on which private practice and public bodies are so fundamentally at odds as the Public Defence Solicitors Office? Well, legal aid rates perhaps, but then the two are not unrelated. And depending on your point of view, between them they could determine whether the field of criminal law will see another generation of private practitioners at all.

By a stroke of timing, accidental or otherwise, the announcement of the expansion of the PDSO network from three offices to nine came only a week before the joint annual conference on legal aid, run by the Society and the Scottish Legal Aid Board. In between, the Journal secured an interview with Matthew Auchincloss, Director of the PDSO and himself formerly a partner in a private firm. And from the panel session at the conference, when SLAB chief executive Lindsay Montgomery put himself in the firing line, it was fully apparent, if it hadn’t been before, that feelings on the subject run very strongly indeed.

Coming only two months after numerous local faculties and bar associations withdrew (sometimes reluctantly) a threat effectively to stall the prosecution of sex offence cases by refusing new instructions, the Executive having conceded a limited improvement in the interim rise offered for solemn cases, many will suspect ministers of simply trying to erect a safety net against repetition. Not so, says Auchincloss. “Hand on heart.”

“The reasons for going ahead start with the Access to Justice consultation that began in 2004 and ran through to 2005. Hugh Henry, the Deputy Justice Minister, signalled the intention to expand the network in March of this year on the back of that... From the consultation and in particular the focus groups, the direct provision of public criminal legal defender services was very popular. Then we have issues directly relating to access to justice; that was certainly the case in relation to why Inverness was set up and is also the case in relation to Kirkwall.”

Location, location, location

Apart from Kirkwall, he adds, where all the local agents withdrew from the duty rota and it has now been decided that the number of cases makes it more cost effective to have a resident solicitor to cover these, the new offices are being set up “on the basis that it provides competition with private practice through a different type of provider giving a service to the people that need it”. Added to that is the issue of cost effectiveness – of which more below.

So how were the locations for the new offices chosen? The other five (Aberdeen, Ayr, Dumfries, Dundee and Falkirk) “are all locations where we thought that there would be a sustainable, cost effective PDSO business without there being a significant impact on private firms. Because what we want to do is compete with private practice, we don’t want to put them out of business. That’s not the raison d’être of the PDSO and actually is quite contrary to why the PDSO was set up in the first place”.

What local solicitors will see, he explains, is “modest office premises, a small two-solicitor practice, probably with one admin assistant, who are on the duty plan and are probably on more than one duty plan in the local geographic area, specifically so that we’re not impacting too much on one specific town”.

Mixed is best

Both Auchincloss and, at the conference session, Lindsay Montgomery, are absolutely insistent that ministers (and SLAB) see the “mixed” model as the way forward. Montgomery: “SLAB don’t see this as meaning the end of the private sector. There is no gain from going down that path.” Auchincloss: “We will have a total of only 21 solicitors [Montgomery’s figure was 25-30], and even if only half of the 1,500 solicitors registered for criminal work are doing criminal work in any serious, everyday way, that’s still only a small percentage of the total.”

What about the fear that private practice will wither away for lack of new blood coming in? “Total rot”, he counters. “When we advertised for trainees we had over 100 applications from extremely highly qualified young people. We had the pick of the crop at interview. I’ve already had calls this week from people looking for PDSO traineeships in Ayr and Aberdeen, so there are certainly law graduates out there quite desperate to do criminal legal aid work, but they can’t get the traineeships.”

While Auchincloss maintains that taking on a trainee should still be regarded as “a great investment for any firm to grow your own talent within the office”, some solicitors at the conference related the difficulty of retaining trainees outside the cities once they have qualified. Montgomery conceded that the current fee structure makes it unattractive to accept trainees – but maintained that the PDSO has undertaken to provide training places in recognition of this. (And we hear of instances of PDSO solicitors leaving for private practice, as well as the other way round.)

Auchincloss declines to say what he would see as an ideal balance between public and private provision. “It’ll happen naturally. It’ll be what the market can stand… I have no way of predicting what would happen in the long term. To suggest what might happen in 10 or 15 years is just so far into the distance that it’s difficult for me to comment usefully.”

Even in Kirkwall, where only the PDSO solicitor will be on the duty plan, he wants the three currently registered practices to continue with their criminal work. “I’m really keen for them all to stay on the register, because I think it’s good for people to have a choice and also because there’s going to be the situation where you have a conflict of interest with multiple accused.”

A different animal?

As for demand, while the conference reacted with some scepticism to claims that clients are looking for one type of solicitor as against another, Auchincloss asserts that many members of the public look for a publicly funded solicitor in the same way as they do a doctor or dentist.

Pressing the public providers to define the essence of their service uncovers another large area of contention. “Our purpose is to provide a different way of giving clients criminal legal assistance”, Auchincloss maintains. “Hopefully the client perceives that we will be doing a little bit more than private practice. It’s not that we do anything that private practice could not do, but as well as providing extremely high quality legal advice and representation at all levels, we also take a holistic approach and try and identify, does this accused person have other issues going on in their lives which probably relate to them ending up on a criminal charge?

“We’ve been very successful in doing that in Glasgow. We’ve very good links with the 218 project [for women offenders], we’ve got a clinic with the Big Issue in Glasgow, and in Edinburgh we’re part of the virtual law centre operated by Streetlegal, which is a group of social welfare lawyers who have a protocol for referral and direct appointments with clients who have issues that others within the network could help. That’s something that private practice could do; probably some lawyers in private practice do do that, but it’s core to what the PDSO is about.”

Montgomery too maintained that the PDSO runs a different sort of operation in this respect: “It has good connections with these support services and helps its clients address their offending behaviour, which is attractive to ministers.”

Practitioners at the conference reacted with indignation. “An insult to the profession”, one retorted. “We wouldn’t be instructed if we didn’t take a holistic approach.” Even Oliver Adair from the platform was moved to comment: “The ‘holistic approach’ is a great phrase, but it’s what high street practitioners have been trying to do for 20-odd years, but they don’t have the funding. It’s another issue on which we haven’t had the public debate.”

Montgomery stuck to his guns. “I’m not criticising, I’m just saying things are done differently. Public defenders in other jurisdictions also tend to operate differently with other services.” And Auchincloss believes that while a similar approach may be adopted by some private practitioners, it isn’t true of all. “It’s part of the training, what our lawyers can be expected to do. That’s the approach of a PDSO solicitor.”

The bottom line

But the biggest arguments inevitably kept returning to the question of money. Why do we not hear the PDSO’s figures?, delegates demanded. Are we comparing like with like? What about setup costs? If you want to control your budget, why not just employ lots of solicitors – because that’s the way it’s going?

While Auchincloss and Montgomery each insist that they already have figures to back up the PDSO’s cost effectiveness against private practice, on a comparison of the total cost to the taxpayer – though research including the Glasgow and Inverness offices will not be published for another two years – Montgomery was careful to say to his audience that the differences are “not huge”. “I don’t believe that the PDSO will be so much cheaper that ministers will want rid of private practice”, he insisted. “They want a predominantly judicare [i.e. funded private practice] system. Each type then benchmarks the other for costs.”

However the solicitors present were ultimately more concerned about rates of pay and alleged unfairnesses and anomalies in the various regimes than about competition from the PDSO. As one put it in a nutshell: “I don’t feel a threat from the PDSO, but I feel a threat from the level of payments.”

A Dumfries practitioner elaborated it this way: “My business is up because solicitors no longer come from Glasgow or Edinburgh to take cases here – it doesn’t pay them. But my costs have increased while payments have remained the same, so I am making no more profit. And I have reached a point where if I take on any more cases there simply won’t be the time to do them as well.”

Not our decision

On such points the Board can be sympathetic, and even publicly agree that some of the rules and figures need sorting out – but have to point out that it is ministers who decide what to pay. Indeed Montgomery asserted that if SLAB finds that the PDSO in any area is getting an unsustainable level of business, “we will say to ministers that they must look at the supply and demand balance”.

SLAB will have been left in no doubt, following the conference, as to the continuing strength of feeling within private practice as to the very existence, never mind expansion, of the PDSO. Equally, however, it is clear that the policy has been set. Private practitioners, it seems, will have to start from the premise that a mixed model requires a healthy private as well as public sector and state their case, taking up the Board’s assurances, for what has to be put in place to achieve that. 

EXPANSION PREMATURE, SAYS SOCIETY

“I think the main issue is that given we’re always told that resources are scarce for the legal aid scheme, our concern is that we don’t have an evaluation of the existing pilot scheme before we expand the programme.”

So says Oliver Adair, Convener of the Legal Aid Solicitors Committee, giving the Society’s response to the announcement of the PDSO expansion.

“That’s why we described it as premature”, he continues. “There’s been no discussion on whether the mixed model trumpeted by the Executive is actually the correct approach, or indeed a necessary approach.

“I’d have preferred to see some form of evaluation of the existing pilot to deal with cost effectiveness, consumer satisfaction, discussion on the mixed model, and then we would debate all that. And if at the end of the day it transpired that what is being said is correct, then well and good. But it seems to me that at the moment we’re going ahead without having paused to consider.”

Adair accepts that the number of solicitors even after the expansion will be comparatively small compared with the number in private practice. “It’s not a question of numbers. It’s the general principle that I feel hasn’t been discussed or debated.

“Although the numbers are not significant, we are setting up that model, that system in fairly substantial parts of the country now. It seems to me that if that is the way we are to go, there should be a pause for proper debate over the issues and then the course should be set on the outcome of that debate.”

As for costs, he maintains that there is a lack of information in the public domain. “I haven’t seen the PDSO figures, I haven’t seen any evaluation and that’s the point I’m making that we’re not given any opportunity to have the detailed assessment.”

While accepting that the individual solicitors currently working for the PDSO are carrying out a proper job, Adair calls for further discussion on the appropriateness of having a state prosecutor and the defence being carried out by another state employee. “The question is whether it creates a potential conflict of interest. It’s not about individuals; it’s about general principle.”

And he questions why it is that the PSDSO is felt necessary. “The argument is to extend the choice, but it seems to me that the public already has the choice as they can choose between any number of private practice solicitors. If there are areas where there are no solicitors, the question is why should this be. Could it be for example because under the present summary system a solicitor is not allowed a fee to travel to the court? Would it not be better to allow a private solicitor to be paid to travel rather than set up a separate body to deal with that situation?

“I have yet to be convinced that the private practice model which has served this country well for many many years, cannot if it is properly funded provide a value-for-money, efficient service that satisfies the consumer.”

THE PDSO: FUNDING

PDSO solicitors are salaried, but only take on work that qualifies for legal aid under the criminal schemes. They go through the same application process as a private firm; the only difference is that at the end of the case they do not submit an account to SLAB. (This is obviously an administrative cost saving in itself, both to the PDSO and to SLAB.)

No cases are compulsorily routed through the PDSO. This was initially done for the Edinburgh office but discontinued in 2000, and has never applied in Glasgow or Inverness. It will not apply to any of the new offices. Apart from Kirkwall, the PDSO solicitors in the new locations will be added to the duty plans in their own town and at least one other nearby sheriff court.

PDSO AND DUTY PLANS: A CLOSED SHOP?

One practitioner hit the mark at the conference by asking, if PDSO solicitors can get on to duty plans for more than one sheriff court, what happened to the rule that you have to have a place of business within the district? Lindsay Montgomery responded that in fact he has discovered different rules operating all round the country, some of them developed between SLAB and local solicitors – almost a closed shop. What matters to him is whether those on the list can do the job properly: the Inverness office, for example, “serves six sheriff courts very effectively”.