Can the UK do any better than the Americans?
18 November 1997
A leading US lawyer has dexcribed the American experience of criminal defender contracts as "dismal".
UP UNTIL now, it has been the civil legal aid practitioners who have been in the government's line of fire.
But in his speech at the Solicitors' Annual Conference in Cardiff in October, the Lord Chancellor, Lord Irvine, said he wanted criminal lawyers to work under the same pre-determined contracts as civil practitioners.
In its search for a viable criminal legal aid contracting system, the Government may well look across the Atlantic for inspiration.
In the Us, three different types of public defender system operate. There is simple contracting, whereby private firms enter into contracts with the state to conduct a certain number of cases for a fixed fee; assigned counsel programmes, whereby state public defenders choose private attorneys to represent defendants; and full-blown public defender programmes, headed by a state public defender with a full-time, salaried staff.
A pilot scheme to test the viability of a salaried public defender system is already being planned for Scotland, and The Lawyer understands that officials at the Lord Chancellor's Department (LCD) are in favour of running a similar pilot south of the border in the near future.
But the odds are that the government will eventually stump for a system based on contracts with private firms rather than creating a salaried defender service, because this is more in tune with its overall pro-private sector philosophy.
At a Legal Action Group conference on the government's proposed legal aid reforms on 6 November, Bob Burke, the senior attorney at the US campaign group National Legal Aid & Defender Association, claimed the American experience of contracts had been "dismal".
He said that although some state contracting systems did work - like the one operated in Washington DC allowing lawyers to seek additional funding for difficult cases - the majority left a lot to be desired.
He said that state contracting schemes suffered from a political attitude which associated expenditure on criminal defence for the poor with being soft on crime.
Burke claimed that lawyers working under contract were less willing to declare conflicts of interest to avoid having to pay a separate lawyer out of contract funds, and regularly failed to appoint expert witnesses, pursue appeals, file pre-trial motions and prepare adequately for trial and sentencing. And he said that the number of guilty pleas increased under the contracting system because lawyers did not have the resources to investigate cases properly.
Experts recommend death-row lawyers spend a minimum of 500 hours on a case, but Burke said this could slip depending on the wealth of the condemned. In one case, according to Burke, a lawyer working for fees capped at a few thousand dollars spent only 30 hours working for his client.
One conference delegate, Jane Hickman, founding partner of the London legal aid firm Hickman & Rose, described Burke's account of US state defender systems as "utterly terrifying".
She highlighted research which showed that the average US contracted attorney was expected to conduct 953 cases per year - compared with her firm's annual turnover of 1,000 cases shared between 17 lawyers.
And she said the Legal Aid Board's (LAB) pilot contracting scheme for criminal advice and assistance, in which her firm is taking part, had "woefully low" quality standards.
The LAB's response to Hickman's claims is a confident assertion that it "has included additional quality re quirements" in its pilot criminal contracts to ensure that solicitors deliver an "appropriate quality" of services.
But the LAB, as well as the LCD officials who are charged by Lord Irvine with coming up with a viable contracting plan, will be fooling themselves if they do not acknowledge just how difficult the task ahead of them is.