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Letters Facing up to ABS I wholeheartedly agree with Fiona Westwood (“Making the most of ABS”, Journal, October, 38). Being commercially minded does not compromise our professionalism as lawyers – it can, in fact, enhance it. There is simply no logic in the argument that only those with law degrees are fit and proper people to run a legal services Send your letters to: Email: journal @connect communications. co.uk or by post to: The Editor, The Journal, Studio 2001, Mile End, Paisley PA1 1JS f: 0141 561 0400 10 / theJournal December 09 business and all external business partners will have a detrimental affect. Our clients are the ultimate judges of our services and our ability, and there is no doubt that lawyers could learn a great deal from other professional practices and business managers who are likely to have a far more realistic view of the influence of today’s consumer. The elephant in the room, however, is how and what we put in place to regulate the new ABS and how this will impact on traditional legal practices. I am writing in reply to the letters published in the two preceding issues from Jon Kiddie and Frank Irvine. The writers indicated their belief that there was a significant upward trend in abatement of civil advice and assistance accounts. The Board’s analysis of abatements suggests that this is not the case. Over the last five years, the value of civil advice and assistance abatements has remained close to the average of around 3% of the total of lodged accounts. In 2008-09, almost 78% of firms experienced abatements less than that average; of the remainder, almost two thirds had abatements totalling less than £1,000 for the year. Granted, this may not be the case for your two correspondents; however, it does appear to be the case more widely. There are areas of law where some firms may be aware of increased levels of scrutiny of their accounts. We regularly carry out trends analysis to identify significant changes in expenditure, reviewing the average cost of cases and comparing individual firms’ costs. As a result, we identify areas where the risks might be higher. Of late, analysis has identified that this would apply, for example, in mental health cases. In his letter, Mr Kiddie pointed to two particular issues. The first concerned confirmatory letters, a First, we have to set the bar high. It is in everyone’s interests to create a regulatory framework that protects the traditional ethos and values of the legal profession whilst embracing 21st century business practices. When regulating on matters such as competency and quality controls we must also satisfy the highest possible standards of ethics and integrity. Secondly, we have to be prepared to face the fact that what is good for the corporate entity, i.e. the ABS, is also good for every law firm. High standards A&A abatements: Board’s response point also raised by Mr Irvine. There may be occasions where, for a variety of reasons, you consider a client cannot follow or may have difficulty in understanding advice provided during a meeting. If so, it may be appropriate to give the advice in a letter, following the meeting. Whilst, in principle, such a letter may form a reasonable charge, you should give the advice briefly, in plain English and focus it on the specific, material issues. We do not think it necessary (or reasonable) to send the client a lengthy letter repeating much of the advice given at a meeting, especially where it may not be readily understood. Where lengthy letters are claimed, we suggest that copies of the letters are sent in with the account so that we can make a more informed assessment of the appropriateness of the charge. Mr Kiddie’s second concern related to account entries. Following publication of his letter a colleague and I met with Mr Kiddie and through constructive discussion, it seemed we were able to resolve many of Mr Kiddie’s concerns over accounting entries. We very much hope that the Board’s project to move accounts online will help to reduce the need for abatements: the built-in fee rates make it impossible to claim on the wrong table of fees and, in addition, of practice are good for the customer, good for the rule of law and good for ourselves, and therefore should be applied to all forms of legal firm. Isn’t it interesting that Fiona’s perception of lawyers is that we “add time delays and costs”? She also comments that we are not seen as leaders. As Scots we are all familiar with the phrase “to see ourselves as others see us”. I can think of no better time than now to take heed of Robert Burns’ great saying. Alistair Morris, CEO, Pagan Osborne the process will improve both the speed and quality of communications on disputed accounting entries. Online account submission is already available for advice and assistance and ABWOR, and has the added cash flow benefit of payment of undisputed sums on account. Along with improvements to the existing online accounts package, we will shortly introduce online accounts for criminal and civil accounts. I am also pleased to report that we will shortly publish comprehensive accounts assessment guidance in the Legal Aid Handbook, so that legal aid practitioners and law accountants will have at their disposal, comprehensive and up-todate guidance on the preparation of legal assistance accounts. For practitioners who do have issues with abatements, the Board always welcomes engagement; and would be particularly open to addressing any apparent trend within a firm’s accounts. We regularly engage with local faculties, firms and law accountants to assist them with any assessment issues. I am happy to affirm that such an invitation remains open; where we have done this, the feedback has been positive. The Board is currently piloting a system of supplier support, where it proactively provides information to firms on their applications and accounts, seeking to work together, in our mutual interest, to maximise the likelihood of an application being successful or an account being paid first time. Andrew Menzies, Director of Corporate Services and Accounts, Scottish Legal Aid Board www.journalonline.co.uk
Legal aid: what achievement? As we move into the festive season, the phrase “turkeys voting for Christmas” came to mind when reading Oliver Adair’s comments on the Scottish Legal Aid Board’s annual report (Journal, October, 34). Mr Adair commented: “Solicitors played a vital role in achieving these savings [to the legal aid budget], while also providing legal services to the most needy in society.” Is the Society therefore to be congratulated for acceding, on our behalf but without our consent, to a 6% cut in the summary criminal legal aid budget? After 10 years without an increase in fees payable? At the Society’s Special General Meeting in August 2008 the proposed cuts were unanimously condemned by the profession as “unacceptable”. The Summary Justice Reform review process, championed by the Society at that meeting, has failed to address the cuts in any way, let alone remedy their effect on criminal practitioners. That process has failed to achieve anything other than a dialogue with the Cabinet Secretary for Justice: something for which, it appears, we should be eternally grateful. My prediction, made at the SGM, that we would never see that money again has sadly proved to be the case. What Mr Adair may wish to focus on is the disproportionate rise in SLAB’s administration when compared to payments to solicitors. Over the last five years the number of legal aid applications has decreased by 32% but administration costs have increased by 36%. Such costs are now over 9% of the www.lawscotjobs.co.uk overall legal aid budget, compared to 5.8% five years ago. Actual payments to solicitors have remained static over that period. Money must be taken out of administration and put back into payments to those appearing at court, to prevent this desperate situation deteriorating further. Nor can it be said that the PDSO has played a “vital role in achieving savings”. Its costs have risen by 11%, despite an 11% fall in its number of cases. More than just being “excellent value to the taxpayer” (as Mr Adair puts it), legal aid practitioners are seriously undervalued for the work they undertake. There is an increasing shortage of new solicitors. Access to justice is primarily a funding issue. Mr Adair should perhaps spend 2010 (which will be the 18th anniversary of £42.20 per hour) trying to achieve higher payments for practitioners, rather than further savings. David O’Hagan, President, Glasgow Bar Association The review group replies David O’Hagan has chosen to make a personal attack on Oliver Adair, the convener of the Legal Aid Committee and review group. It compares poorly with Mr Adair’s measured comments on legal aid costs in the October Journal. The profession has come to a view, confirmed at the SGM, that it is in our best interests to engage constructively with the Scottish Government and SLAB, who control our funding and financial regulation. No rational alternative has been proposed or demonstrated. The “industrial action” only succeeded in giving credibility to the PDSO. The failed judicial review of the duty scheme and the requisitioning of the SGM proved equally ineffective. It is to be hoped this course of action will end with the latest inaccurate criticism by Mr O’Hagan. We need look no further than the original consultation document published by SLAB in October 2007, and the negotiated outcome for criminal legal assistance introduced in July 2008, to appreciate the value of engaging effectively with Government. The difference between the proposals and the eventual result was due largely to the experience and often unseen hard work of Oliver Adair. All of us who have worked with him admire his selfless dedication to a tough task. Oliver speaks for all of us in the review group. If colleagues have anything to say about the review process or continuing problems or queries, please contact us directly as many have, including some from Glasgow. Their contributions are welcome and inform and improve what we do. For the sake of completeness and fairness we should point out that David O’Hagan’s comments on the solemn regulations were incorporated into the representations made to the Government and SLAB. Now is the time for our GBA colleagues to join us in a more mature and constructive approach. Those of us engaged in promoting the profession’s interests would welcome their involvement and assistance. No one should confuse our engagement in this process with an endorsement of all aspects of summary justice reform, and especially not of cuts in legal aid spending. The Scottish Parliament decided to cut legal aid spending. Our job is to promote our crucial role in the system and try to achieve the best outcome for the profession and for our clients in the difficult economic circumstances we face. Lawyers – not only members of the GBA – are no less cynical today than they have ever been, and, to the credit of the Cabinet Secretary for Justice, the review process was established to consider actual business volumes and legal aid costs against projections. The question of recalibrating the fee structure is a key issue for this process. Legal aid administration costs continue to feature in these discussions. Mr O’Hagan appears to suggest that Mr Adair commended the role of the PDSO in “achieving savings”. The Society and Mr Adair agree that criminal legal defence is best and most cost effectively provided by solicitors in private practice. Oliver Adair and the Society’s review group will continue to press for a legal aid system which properly remunerates solicitors for representing and securing justice for their clients, often the most disadvantaged in our society. We welcome constructive involvement and input from all practitioners. Ken Dalling, John Scott, Ian Bryce and Vincent McGovern, members of the review group. kd@dallings.co.uk; johndscott@talk21.com; ianbryce.ccl@googlemail.com; vgmcgovern@msn.com December 09 theJournal / 11
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Page 12 and 13: Feature Home reports One year after
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