Sympathy for the devil you know so well
3 April 1997
Feeling sorry for lawyers is an unusual concept, particularly as I understand that our popularity ranks on the same level as tax inspectors and traffic wardens. Indeed, in the US, bookstores are rapidly selling out of a slim volume entitled Lawyers and Other Reptiles, a further indication of the low esteem in which we are held.
The reason for such malevolent feelings towards the profession as a whole is the general and misconceived view that we are, without exception, making huge amounts of money out of other people's misfortunes and misdemeanours, and as a group, we are all extremely wealthy. But nothing could be further from the truth.
And yet we read in the press almost daily of "fat-cat lawyers" and the "legal aid scam" with the names of Maxwell and Levitt being bandied about. The latest from the Lord Chancellor is that we shall have to pay the costs of cases over £50,000 if, in the view of the Legal Aid Board, such cases should not have been brought to trial.
In my view, and that of my colleagues, the greatest legal aid scam is the one in which the Government, in the guise of the Legal Aid Fund, holds on to our fees for an inordinately long time and pushes us deep into debt and penury.
Very few barristers are rich. Historically the Bar has been known as a rich man's profession and those who do survive usually do so with the assistance of private wealth. There are, of course, those in the exclusive commercial sets whose work is privately paid and who make a very good living. But they are in the minority compared with the vast majority of the Bar who do legal aid work which is grossly underpaid, underfunded and poorly administered.
A silk once told me that success at the Bar is measured by the size of one's overdraft. In that case, my entire chambers and many other sets must be incredibly successful.
Those of us that engage in legally aided work engage in 'people law' - housing, family and child work. We work long and hard and when legal aid rates are examined, the hourly remuneration is less than we pay our cleaners - if we could afford them!
The situation is nothing less than scandalous, particularly among civil practitioners. The legal aid regulations provide that one can apply for a payment on account of fees when a matter has been completed some time ago, but not paid. The regulations state that the fund will "pay up to a maximum of 75 per cent of the amount claimed". The crucial words here are "up to" which means thousands of pounds can be claimed but a derisory sum received - such as £7.10 in one of my cases.
If that particular regulation does not result in delivery of the financial goods, there is another which allows Counsel to claim fees on the basis of hardship, in support of which evidence of the Bank Manager's wrath and bouncing cheques must be produced. If our
Instructing solicitors submitted their bills for taxation at the appropriate time and the Legal Aid Fund was properly administered, perhaps the provisions for payments on account and hardship would be redundant.
Sadly, as a result of living off overdrafts and the never never, together with the daily dread of the thud of the morning post on the doormat because further bills arrive which cannot be paid, and the fact that Tescos and Asda will not wait as long for payment of the grocery bill as we have to wait for our fees, many talented people are leaving the Bar.
I do not expect the public to have sympathy - they will still retain their stereotypical Rumpolian view of us. I have even exhausted the sympathy of my bank manager who does not understand how something that calls itself a profession is, apparently, content to wait years for payment for work done, cannot sue for its fees and runs up aged debts of six-figure sums.
The Bar is not the old fashioned, old boy network it once was. It has had to modernise itself and move along with the times in all areas. It is time, then, that the structure of fee collection was reformed and Barristers treated as small businesses with similar terms for payment. We can no longer afford the outdated view, epitomised by the pocket on the back of our gowns, that we do not discuss the sordid subject of money.
It is also time for the Lord Chancellor, who is desperate to shake-up legal aid, to shake up the part that needs refreshing the most - the payment section - so that work done is properly and expeditiously remunerated. The Bar is both a profession and a business - not a charity.