Approval of our peers

As the start of the third cycle of civil legal assistance peer reviews is fast approaching, what have we learned from the recently concluded cycle?

The outcomes from the reviews in the first two cycles have been very positive; the quality of work is generally at or above the required standard and some firms are exemplary. Of the 618 firms reviewed in the second cycle, 98% passed: only 6% failed at routine review and only 2% of firms went to final review.

The Quality Assurance Committee (QAC) has identified some recurring themes which if addressed can enhance best practice, and this article aims to share these with the profession and make suggestions for improvements.

File quality

The peer reviewer’s job is to look for evidence on the file that the criteria (published on the Society’s website at www.lawscot.org.uk/uploads/Legal_Aid/Peer_Review_Criteria.pdf) have been met. It is therefore crucial that the file contains the necessary documentary evidence. It is the solicitor’s job to make sure it’s there. What needed to be done to meet any criterion may well have actually been done, but if there is no evidence, the reality is that the file may not pass, or there may be correspondence with the QAC which could be avoided if the evidence is on the file.

If the necessary evidence is saved electronically, you should print it and place it on the file when sending the file away for peer review. And remember to send all the papers with the file, including court papers and copy legal aid applications. While file notes do not have to be typed, they do at least need to be legible.

This is not meant to suggest that peer review is just about keeping tidy files, but if there is not enough information on the file against which the criteria can be tested, or a lack of file review leading to delays in progressing work for clients, then criteria may be failed.

Clawback: ongoing advice

By far the most commonly failed criterion not only at the initial stages of a case but also as the case develops is the advice, or lack of it, given in respect of clawback.

Undoubtedly some failures reflect poor record keeping. The advice may have been given but there is no record to that effect – here a good terms of engagement letter will assist in the initial stages. But in some cases there is a failure in standards.

It is not enough to tell the client about clawback at the outset: the position changes as the case develops and where there is the prospect of settlement with a payment to the client, the issue needs to be revisited with the client being told before acceptance what they can expect to receive and to pay by way of legal expenses. In short, the file needs evidence of ongoing specific advice.

Terms of engagement letters

Terms of engagement letters have been obligatory since 2005, and it is surprising that a number of firms are still not sending such a letter to the client in every case. But some files fail this criterion for a number of reasons which at face value appear to be avoidable. For example, a letter may have been sent in a standard form but the letter is not produced when the file is sent for review; or a letter is sent but its terms do not properly deal with legal assistance issues.

The QAC has published sample clauses for terms of engagement letters on the Society’s website. If a terms of engagement letter complies with the 2005 Practice Rules it will not fail peer review, but if it does not, or if there is no evidence it was sent to the client, the criterion will be failed and this may be enough to tip an otherwise satisfactory file into failing the review.

Private feeing issues

It is never acceptable for a client to be asked to pay privately for any part of work done which is otherwise covered by civil legal assistance. Peer review has produced evidence of clients being inappropriately charged a private fee for work done, or of being asked to pay up front for an outlay. These are considered serious issues by both the Board and the Society, and potentially could lead to conduct complaints being raised against the solicitor concerned.

Under advice and assistance when a client makes a recovery and it is appropriate to meet the costs of the work done from that recovery, the level of fees and outlays charged by the solicitor must be charged at advice and assistance rates and must not exceed the limit of authorised expenditure.

Reviewers have found that solicitors may agree a private fee with the client, and simply deduct that from the funds recovered. Such fee charging arrangements are prohibited, as are the charging of contingency fees based on a percentage of the recovered compensation which, surprisingly, also happens from time to time.

Some reviews show that the client, although eligible for civil legal assistance, is asked to consider proceeding on a private fee paying basis. This happens most often when either the client is offered legal aid subject to a contribution which they consider to be too high, or under advice and assistance where it becomes clear that the client will receive significant funds as a result of the work.

Before proceeding on a private fee paying basis the solicitor must advise the client that the Board can be asked to reduce the contribution to the likely cost of the work; of the protections offered by legal aid in terms of modification; of the rate the solicitor intends to charge privately; and if the authorised expenditure is exhausted, that advice and assistance has effectively come to an end. Evidence of this advice being given must be recorded on the file. The file must also show clearly that the client has been given the offer of seeking civil legal assistance from another solicitor.

CICA claims lead to more reported breaches of the regulations than any other type of case. So be careful with private feeing – acquaint yourselves with the regulations about the feeing of civil legal assistance cases and with the specific rules about the acceptance of judicial expenses.

Keep up to date

A lack of understanding of legal aid or failing to keep up with changes can be prejudicial to both client and solicitor alike. A lack of understanding of eligibility may result in clients being deprived of publicly funded advice to which they are rightly entitled, or paying more by way of contribution than is needed. Solicitors may not be paid for work legitimately done because levels of authorised expenditure are not kept up-to-date, or regulatory timescales are not met for the submission of applications or accounts.

A file will not fail at review where the solicitor has been penalised by a lack of knowledge of legal aid, but where such lack of knowledge, or for example failure to keep up with substantive law, inadequate communication or failure to recognise conflict issues, causes a client to be prejudiced then the file may well be failed. This may also happen where delegated work is inadequately supervised.

There is a lot of information about peer review on the Board’s and the Society’s websites: www.slab.org.uk and www.lawscot.org.uk, or you may wish to contact the Board (Joe Kelly on civil issues) or the Society (Sarah von Delius, Quality Assurance Administrator, sarahvondelius@lawscot.org.uk); and look out for the series of updates that will follow from the QAC on this topic.

• Tom Murray is Director of Legal Services and Applications at the Scottish Legal Aid Board

A more refined process

Eileen Sumpter explains how the peer review cycle now beginning will see a different approach to selection of files for review

Since the completion of the second cycle of civil legal aid peer reviews, the QAC reviewed the peer review process, looking at all aspects of its operation, and considering how it can be improved for the future. One of the outcomes of the review is a change to the way files are selected for peer review.

Previously five files were randomly selected for each practitioner, taken from all the files registered with the Board by the practitioner as nominated solicitor (whether open or closed). In the case of many firms who do not do a great deal of legally aided work, this approach covered over 10%, and in some cases 100%, of their legally aided business. Conversely, for medium to large firms, coverage was as low as 1-2% of their legally aided business. Of the 350,000 grants of civil legal assistance over the three year cycle, about 11,000 files were reviewed – an overall average of around 3%.

The QAC considered that such a low percentage of files reviewed did not provide a sufficiently reliable sample for quality assurance purposes. On the other hand, it is not possible simply to increase the sample size, as the budget does not allow this, and it would place an unreasonable burden on the quality assurance administrator. Additionally, the QAC had concerns about certain issues which were arising in particular areas of work more often than in others. Those which most often raised concerns about the quality of service to clients were immigration and asylum, judicial review, employment, mental health, and adults with incapacity. Most of these areas also involve clients who are vulnerable in one way or another.

Professor Alan Paterson, who advises the QAC on the statistical integrity of the peer review scheme, and who trains peer reviewers and monitors the consistency of their marking, assisted with modifying the method of selecting files to address both these issues. In the third cycle, which commences in September 2010, the selection of files will be on the basis that the previous minimum of five randomly selected files per practitioner will remain, but this will be supplemented by additional randomly selected files so that a minimum of 10% of files in the above categories will be selected, while the minimum for all other types of work will be 3%. The changes retain the principle that files are selected randomly, albeit separately from within the different categories of work.

This increase in sample size means that reviewers will see a wider and more representative sample of the work done by each practitioner. The new approach is consistent with a risk-based approach, and will allow improved quality assurance whilst remaining within budget constraints. Additionally, the cycle of reviews will be increased from three years to three and a half years, which will mean that firms will be subject to review slightly less often.

Some changes have been made to the memorandum of understanding between the Society and the Board.  No change has been made to the rules (www.lawscot.co.uk/Members_Information/legal_aid/civil_quality_assurance.aspx).

• Eileen Sumpter is a Council member and convener of the Quality Assurance Committee