Responsibilities to Legal Aid Authorities

Legal aid has been administered by the Legal Aid Agency (LAA), an executive agency of the Ministry of Justice, since April 2013. It replaced the Legal Services Commission (LSC), an agency that was at ‘arm’s length’ of the Ministry of Justice.

A. Solicitors

The circumstances of legal aid raise similar ethical issues as arise in the case of insur­ance, namely the possibility of a conflict of interest between the interests of the client and the interests of the LAA. Issues can arise regarding the right to free choice of solicitor and client confidentiality. Such ethical considerations were raised by oppo­nents of legal aid when it was first introduced. Nevertheless, the best interests of the client overall lay in favour of the legal aid scheme.

There are possible breaches of client confidence when the solicitor makes reports on the progress of the case, or changes in the client’s circumstances to the LAA. The

¹³⁶ SRA, Handbook 2011, as amended, Indicative Behaviour 11.1.

¹³⁷ V Wozniak, ‘CJC publishes third-party funding code of conduct’ The Lawyer 24 November 2011. agency is also bound by client confidentiality in that they are not allowed to publish details relating to clients or use the information other than in relation to the admin­istration of the scheme. Nevertheless they can get access to client details for research purposes and for client satisfaction surveys as well as for administrative purposes. A considerable number of people usually have access to the information both within and outside the agency.

i. Legal Aid Block Contracts

The use of block contracts between the LSC and the supplier (which can be a solicitor or a not for profit organisation like a Citizens’ Advice Bureau) eroded the freedom of legal aid clients to instruct a chosen solicitor. These contracts provide for a specified number of cases (or matter starts) per year in specified areas of law (for example, fam­ily law, criminal law, welfare law). In general the provider cannot give services to the client outside these areas (though there are some accepted ‘tolerances’ which permit help and advice in related areas of law in certain circumstances).

The majority of the terms of the contracts are concerned with fees and their payment. Fixed fees are set for standard procedures and solicitors are expected to deal with a set number of cases for a set overall payment. Obviously this affects the standard of work that can be done for particular clients—but this is also the case for privately paying clients whose resources are limited.

Work done under the contract must meet the test of ‘sufficient benefit’ to the cli­ent and be ‘reasonable’ in the eyes of the agency, which audits the work done. The contract requires the solicitor to meet ‘such level of performance, as measured by performance indicators, as we may require’. In addition the contract required both the LSC and the solicitor to ‘work together in mutual trust and cooperation’. It did, however, recognise that this was ‘without prejudice to... your professional obligations in respect of clients’.

Contracts also restrict the solicitor’s freedom to use, for example, experts and inter­preters or to get paid for legal research. This protects the funder, potentially to the detriment of legally aided clients. They may well not be offered or receive the kind of comprehensive or holistic service that the private client would be offered. The contract also provides that the rules of the professional body must be abided by, in particular the Code of Conduct.

These provisions clearly indicated that the solicitor had a dual duty to both the client and the LSC. If he favoured the client too much in preference to the LSC then at the very least there was a risk that he would lose the contract or not get it renewed when the next round of competitive tendering came round. However, it was also advantageous to the client that the LSC required an expert standard of work and audited performance. The client could have some confidence that the solicitor had expertise in the area of law concerned and was required to reach a minimum standard.

Legally aided clients could not supplement the service received by offering private payment. The client had a free choice of solicitor, provided the solicitor has a con­tract in the relevant field of law, but there were restrictions on changing the solicitor once the client’s case has been started. Changes needed to be approved by and usually needed to be justified. A substantial reason, such as conflict of interest, was required, not simply that the client does not get on with the solicitor or disagrees with the advice.

A solicitor acting under a legal aid contract is under a duty to report to the LAA any information that would otherwise be confidential to the client. Monthly reports on completed cases were usually sent to the LSC. Solicitors were required to report suspected abuse of the scheme by the assisted person, reasons for any doubts that the action should be continued and other information on the conduct of the assisted person. The LSC was given access to the files of clients and former clients. These reporting obligations were imposed both by law and by the contract. In theory the solicitor should have informed the client of these obligations at the start of the case and obtained client consent, for example, for disclosure of confidential information.

ii. Regulation

The 1999 Guide contained a chapter on legal aid.^[2136] This provided that is was unbefitting conduct not to advise a client of a right to legal aid.^[2137] It also provided that ‘legally aided clients must be treated in the same way as privately funded clients and the same standards of care apply’.^[2138] The Guide contained specific obligations that put the legally aided client in a different position to a solicitor’s privately funded clients.

The Guide placed solicitors under two specific obligations to report abuses of legal aid by clients. In relation to civil matters, solicitors had to report to the legal aid authorities certain information ‘concerning the client that is confidential or privi­leged’. This obligation to report on clients had two dimensions. First, solicitors had to respond to requests for information from a senior manager in the legal aid service.^[2139] Secondly, they had to volunteer information to the authorities where they believed that the client was abusing legal aid. Solicitors were advised to persuade clients to convey information themselves. If they did not agree, however, the solicitor was told to stand down and report the matter himself.^[2140]

Specific examples of behaviour that solicitors had to report to the legal aid authori­ties included client breaches of provisions in the basic legislation, such as those against making false declarations about income. They could also be reported for requiring the case to be conducted in a way that was incurring unreasonable expense.^[2141] They had to report if the client refused a reasonable offer of settlement.^[2142] They also were required to provide reasons to the authority for giving up a legally aided case in which they had begun acting.^[2143] Solicitors had a similar statutory duty to inform the relevant court officials.^[2144]

No specific obligations in relation to legal aid were contained in the Solicitors’ Code of Conduct 2007. The only reference was to encourage economy in the repre­sentation of multiple-defendants. Guidance to Rule 3, dealing with conflicts of inter­est, provided that ‘[i]n publicly funded cases, regulations require that one solicitor be appointed to act for all co-defendants in a legal aid case unless there is, or is likely to be, a conflict’. The rule went on to explain that ‘[t]he purpose of this is to ensure economy in the use of public funds by ensuring that a single solicitor represents co­defendants where it is proper to do so’.^[2145]

The SRA Code of Conduct makes only one oblique reference to legal aid.

B. Barristers

The Bar had duties to the LSC under the Access to Justice Act 1999, and related regulations, when acting for a client on legal aid.^[2147] The Bar Code 1981 reflected this by reminding barristers that, in supplying legally aided services, the barrister ‘owes his primary duty to the lay client’. In giving an opinion on an applicant’s case, a barrister has to act both for his client and the LSC. Counsel were required to set out any rival accounts of the facts so that the LSC could estimate the strength of the applicant’s case. They were also required to state whether a conference had been held to estimate the applicant’s reliability as a witness, and to suggest any limitations that should be imposed on the grant of funding.

In the Bar Code of Conduct 2014, guidance on the rule against discrimination^[2148] makes it clear that barristers must not refuse cases on the ground that they are legally aided.^[2149] This only requires that barristers do not discriminate against legally aided clients. They are entitled to refuse such work, even under the cab rank rule, on the ground that they have not been offered a proper fee.^[2150] The guidance also refers to a term in the LAA’s Unified Contract Standard Terms prohibiting payment of referral fees in publicly funded work.^[2151]

The new Code also addresses the situation where it is clear to a barrister that a cli­ent has obtained legal aid under false pretences. In such cases, the barrister must first try and ensure that action is taken by the client to remedy the situation immediately.^[2152] If this fails they must promptly cease to act and return their instructions.

XI.