Action and Reaction

The formal interviews and participant observation provided competing accounts of behaviour. When the lawyers talked of respecting clients in the former, they per­petuated a discourse that any difficulties in this regard reflected unfortunate but necessary reactions to external pressures.

In the formal interviews, lawyers from all firms presented a united front that they were reacting to external pressures, with a clear majority of 30 out of 35 taking such a position. The most significant of these threats was expressed as that pertaining to legal aid remuneration. Lawyers framed their behaviour within the attempts of suc­cessive governments to curb the criminal legal aid budget. This was an expenditure that, then Justice Secretary, Jack Straw (1999) had infamously condemned as extravagant, claiming it to be the largest in the world. These lawyers had witnessed various reforms introduced to restrict their remuneration, including fixed fees, contracting and tendering proposals. This amounted to what Cape (cited in House of Commons Constitutional Affairs Committee, 2007: 22) labels a ‘revolution’ in funding: ‘something which has such potential for destruction of the legal aid profession’.

Some lawyers in my study believed that this destruction was the ultimate objec­tive of the government, others that the government simply held no regard for the lawyers or their role. Accordingly, lawyers argued that it was not they, but the public and the government who really disrespected their clients.

The problem is that politicians don’t see any votes in the work we do. I think, for that reason, they are entirely unsympathetic; they are only interested in whether they get votes. The public just look upon it as ‘the criminal classes’ and not ‘us’. I think, generally, people don’t understand how deprived many of the clients we deal with are, how they have missed out on education, how they have been inveigled into drug use or how they just function on a level that many people wouldn’t recognise as normal... Nobody really recognises the tremendous worth of what we do and the need for someone to help such people.

(James, senior partner, Radford Hope, INT)

Many of these lawyers duly forwarded the line that no one cared about criminals, locating legally aided criminal defence as the ‘least loved branch of the welfare state’ (Freeland, 2006). This can be seen in the following quotes from within both Sausage Factory and Radical firms:

I'm not sure where the legal aid situation leaves clients. I'm not sure that the government know and I'm not sure that the government cares, frankly. The deterioration is very much long term. There has been no new money that has been introduced. There doesn't appear to be any political will to put money into the system or, indeed, to maintain the status quo and most people don't understand the role that we play within the democratic society. That is, until they are arrested and suddenly screaming for help. That's where we come in and make the difference. We do it because no one else would.

(Garland, partner, Sosford and Banger, INT)

The government can't care about these people otherwise they wouldn't continually erode legal aid rates. There's been no increase in the rates for years. And you wonder what value government puts on it. Clearly not very highly because they've been totally cynical, and I don't think that the type of people getting criminal defence are really at the top of the list for government.

(Gordon, solicitor, Radford Hope, INT)

The impression many lawyers sought to convey - that they stood up for clients and gave them the respect others denied them - amounted to positioning themselves as akin to heroes. These lawyers, then, appeared to take on a thankless task, helping those who had been left behind by the rest of society, and all for little more than their own sense of duty to a cause they knew was right. They seemed little short of martyrs.

The participant observation revealed this to be a fiction, with lawyers appearing to treat clients no differently from the stance they so criticised in the general public and government. Clients were pushed from pillar to post and rushed through the system as criminals who no one should or did care about. This was evident from the discussions that took place in the offices of these firms before leaving for court in the morning. Most lawyers appeared to see clients as a burden, and were more inter­ested in the way that dealing with large numbers was a personal inconvenience and gave them more to do rather than any impact it might have on the service clients received. This can be seen in the following exchange in the office one morning, where the lawyer's prime concern was that he might have to suffer a long day in court:

[LawyerOne] Thomas [partner] isinCrownCourtwith that? I thought it wasMagistrates?' [Lawyer Two] That means we've got no one doing the list then. Thomas was down to do [Courts] One and Three.

[Lawyer One] You're doing overnights?

[Lawyer Two] I'm doing overnights. I've got three so far.

[Lawyer One] So, I'm in [Courts] One, Two and Three.

[Lawyer Two] You're in [Courts] One, Three and Youth Court now.

[Lawyer One] For fuck's sake. Can you go and ask him how long he's going to be? I've got to finish this dictation off.

(Dick, partner, and Nadine, partner, Swining MacSage, OR) In interview, most lawyers claimed it was the external pressures borne of restricted remuneration that pushed them into behaving this way - while their behaviour was not ideal, nor was the reality they faced. They simply saw ‘no money' in legally aided criminal defence. In order to sustain themselves, many lawyers insisted that that they were forced to compromise their behaviour; discontinuous representation was a necessity to survive. This was reflected in comments such as these:

You should go through the unused material, chase witnesses up, go the extra mile for the client. But you don't. You realise that you can't do that. At the end of the day, every case has to be about trying to make a profit.

(Ed, senior partner, Swining MacSage, INT)

The way in which my approach has changed is perhaps of interest. I trained at a firm, which you would describe as client-centred and in the early years my first thoughts were always with the case and how it should be dealt with. The question of costs was almost secondary. The position now is that the first question that crosses my mind is: ‘How do we get paid for this?' - a sad reflection on the legal aid system.

(Leo, solicitor, Radcliffe and Musk, EM) Your idealism does take a bit of a hit over the years. It's got to be run now like a business to survive.

(Catherine, solicitor, Radford Hope, INT) In their earlier research, Sommerlad and Wall (1999) present similar findings. The lawyers in that study discuss the need to ‘cut corners', which the authors attribute to the encroachment of New Public Management (41-59). The topic of New Public Management represents a long-held interest for Sommerlad (1999), and she has raised concerns that its importation into legally aided criminal defence is changing the character (and diminishing the quality) of representation.

New Public Management, though, has been criticised. Several ways in which public organisations differ from the private sector are outlined by Boston et al (1996: 37-38), including the breadth of their impact, complexity of objectives and evaluation criteria. Such reform tends to ignore these differences. Under New Public Management, individuals are no longer ‘citizens' but ‘customers' (Osborne and Gaebler, 1996: 579-80). Customers appear ‘a means to an end', a necessary stage in the pursuit of profit. It is for this reason that Marquand (2001) implicates New Public Management within a general climate of ‘mean-spirited rhetoric' that increasingly casts doubt on the validity of the ‘service' element in public services. The moniker customer, applied to lawyers' clients, is problematised by Berlins (2009), who suggests that it put these services on a par with the trivialities of buying a television or a fridge rather than seeking expert professional advice on significant life choices. This, in turn, reflects the concerns of Hoggett (1996: 26-28) that these reforms actually ignored the individual in favour of a fictive universalism, working to provide a justification for an increased intensification of labour practices. As this process subsumes the provision of legal aid, Sommerlad (2001: 359-60) highlights its essentially ‘degrading' character for lawyers. The only way for practice to con­tinue is through discontinuous representation, so the service that can be provided is not that which lawyers want to supply.

However, the situation witnessed in the participant observation contrasted somewhat with this depiction. Notably, lawyers did not provide any discernable sense of regret at behaving in the manner they did; rather they appeared to embrace it. This can be seen from the way that a Swining MacSage partner, Thomas, reacted to a client phoning him at the office. The client was worried about a letter he had received pertaining to his case that morning. Thomas told him that he was just about to leave for court, when in reality he spent the following half an hour sitting at his desk, largely making chitchat. Thomas saw this as legitimate, commenting:

Oh God, I've dealt with him for a full two and a halfyears. He's just this nervous, worried guy; always concerned about something. He just phones up and wants to talk about his case. He's a right pain. Trying to fit him into your working day; such a waste of your time. He just wants to talk about his case. I have to think of all kinds of excuses.

(Thomas, partner, Swining MacSage, IC)

Not only did lawyers fail to show regret; in some situations they were positively celebratory at the manner in which they benefited at their clients expense. Consider, for example, Radcliffe and Musk’s senior partner, Leo, thinking aloud on viewing a television programme that flashed breaking news about a House of Lords ruling:

Ohh, now that's very interesting. And I'm just thinking of the benefits financially here, not what's good for the client. But, being totally mercenary, we stand to make a nice little earning from that. We have the fee from the first trial, the second trial has already begun and, if they cancel that, then we still get the fee. Then, if they want to start again, that's another fee. And we're talking a not inconsiderable amount of money here. Come on Mr [Jack] Straw, bring on the law change! No, it's not great for the client, he will have to wait even longer, and it might, thinking about it, mean Ben [partner] can't represent him, so he'll have to see somebody else, but there you go.

(Leo, senior partner, Radcliffe and Musk, IC)

In their managing contact and access through discontinuous representation, law­yers presented a clear disregard for their clients and, as such, there is a need to regard with scepticism their claims in interview that they were merely reacting to external pressures. It is important to confront the possibility that these lawyers - at least to some extent - chose to behave as they did. This reflects the position taken by McConville et al (1994: 294-98) who posit such behaviour as primarily a matter of values. The prevalence of discontinuous representation appals McConville et al (1994: 271) who offer the conclusion that:

What is clear is that it is not merely a question of the economic determinants of practice under legal aid, nor of the sheer volume of the casework... non-economic factors are of at least equal importance in determining the generally poor quality of criminal defence work.

Perhaps, rather than being pushed into discontinuous representation to sustain themselves, lawyers were willingly pulled towards these practices to maximise their profits. In the previous chapter, it was suggested that an element of greed might exist for lawyers who were so focused on their finances and eager for more than they - or the average Britain - received. This might well be found in their disregarding basic client care in this manner.

For Thomas and Mungham (1983: 147-49), lawyers are fundamentally moti­vated by self-interest. In their research, they highlight lawyers concerned with potential economic discomfort - specifically, the ending of the conveyancing monopoly - striving to manage contact and access in a manner that maximised their financial reward. Lawyers achieved this by the introduction of the duty solici­tor scheme. In an attempt at generating a positive public image, this was spun as a means of improving the service the client received as they had greater access to lawyers. Its management, though, created opportunities for lawyers with little experience of - or interest in - criminal defence to milk the system. It was intended as a guaranteed wage earner, and this came before any consideration of what was best for the clients.

With this in mind, it is important to recognise that lawyers used discontinuous representation to manage contact and access long before the present study was con­ducted. Indeed, the Widgery Report (Departmental Committee on Legal Aid in Criminal Proceedings, 1966: 81-82) had raised this concern in the 1960s:

There is a widespread feeling among prisoners that the standard of legal aid provided is inferior to that available to persons who pay for their own defence... not given a proper chance to instruct their legal representatives and that the opportunity to consult their legal representative was confined to a few minutes in the court precincts before their case came up... neglect to prepare their cases properly... find themselves being represented by a member of the Bar whom they had not expected.

The research undertaken by McConville et al (1994) was conducted over two dec­ades later, but discontinuous representation is every bit as insidious in their report. The lawyers I observed no doubt had genuine concerns about contemporary devel­opments including fixed fees, contracting and the prospect of Best Value Tendering. However, the literature shows that lawyers have acted in this manner even when these were not considerations. This makes a mockery of some lawyer complaints that they had been forced to change their practices, and of their harking back to halcyon days of yore when they were free to act how they chose:

I remember the lovely old days. One of the constant complaints clients have, and that people are now getting used to, is prison visits of course, that is a biggie. There was a time when we could afford the luxury of, not doing social calls, but regular prison visits. Nowadays, we have to tell them I am only coming up the once and, at that one meeting, we'll go through everything. There is less face-to-face contact; you have to write letters to them all the time telling them what you are doing, most of which are either never read or can't be read because they can't read. So, yes, there is a big difference in client contact.

(Mike, senior partner, Radison and Muddle, INT)

In those days, criminal defence was a very different world. For a start, you got paid for what you did, which was good because it meant that those that worked very hard and did a good job got paid more. There is no question that the quality of service is diminishing year on year and will continue to diminish while the government continue to put more pressures on us. Even if they were to stop putting pressures on tomorrow, you wouldn't go back uphill again. I can't see us ever going back to the way we were.

(Harold, partner, Radford Hope, INT) Whatever the financial circumstances, it seems that lawyers have frequently offered excuses as to why they acted in ways that deviated from the ideal. So it was in this research. What bolsters the conclusion that these are excuses rather than explana­tions is the fact that firms have always been, and still are, provided ample opportu­nities from which to make a profit. During my fieldwork period, the government claimed that legal aid firms could still make a profit under fixed fees despite the reforms, citing that remuneration was reasonable on a ‘swings and roundabouts' basis (Ministry of Justice, 2009: 14). It was suggested that lawyers would be paid better in some cases and worse in others, with the overall effect being cost neutral­ity. Consistent with this, my research appeared to produce numerous examples of occasions on which lawyers could benefit from the current system of remuneration without compromising their behaviour.

There were various means to achieve this in the Magistrates' Court. For example, a particular tactic of Leo, senior partner from Radcliffe and Musk, involved clients, already on curfew orders, brought into the cells for new offences. He would find out if there had been a breach and then get clients to fill out two sets of legal aid forms - for the new offence and breach proceedings - before preparing for the sentencing hearing as if there had been no breach. Breaches were charged by a private security firm, not the Crown Prosecution Service. Leo hoped the breach would not appear on the computer system in time for the sentencing, but turn up later, ensuring that they were not prosecuted together and the second fee could be claimed. This activ­ity has been labelled as ‘case-splitting' (Gray et al, 1996: 277-78). Leo often joked about his propensity to use this tactic, as in the following:

Somewhere in the system will be breach proceedings. Get that second fee! ‘Whoops, I didn't realise'. Keep quiet, get the fee!

(Leo, senior partner, Radcliffe and Musk, IC)

There are no breach proceedings. What a shame. I feel cheated! I should have a word with her; get those breaches done quicker!

(Leo, senior partner, Radcliffe and Musk, IC)

Oh, I did well yesterday, had a few new ones come into the cells. I got them sorted and billed. I must have made around £1200. Not bad at all. There should be some breaches coming up in the system too!

(Leo, senior partner, Radcliffe and Musk, OR - to a colleague) Another technique some lawyers used was when appointed by the court to cross­examine a witness in a trial, usually for domestic violence. They were paid from Central Funds, by the hour and at private rates. A solicitor, Shelly, Radcliffe and Musk, explained how they were able to spend longer than necessary on such cases:

The partners are putting loads of pressure on me to do more on it. The view is that if they’re going to grant us these things we should make the most of it. Which is fine, from a partner’s point ofview, they obviously want to make as much money from it as possible. But, then, I actually have to do it. It’s making work for myselfjust to claim it back which I’m not sure I’m entirely comfortable with. I’ve been in court and seen other solicitors - from the firm you are going to next [SwiningMacSage] - sit in court all day when they’re only paid by the court for cross-examination. That’s £195 an hour, private fees.

(Shelly, solicitor, Radcliffe and Musk, IC) She told me that she didn’t like doing it but did it all the same, and it was not only that other firm which routinely practised the tactic - the others lawyers from her firm did too. A similar approach was often taken with duty solicitor slots, across the firms; lawyers were able to see their own clients but claim the higher, hourly, fees provided for duty cases. One partner in the study was notorious for using this time to write his crime thriller novels. At first, I had assumed he was incredibly diligent - writing reams of notes, reading and re-reading what he had written with great care and attention. I felt a little let down when I realised that he had been stealing every spare moment proofing his manuscripts (he was on his third book in a year).

There were numerous other examples of lawyers ‘getting lucky’ that were not so habitual, as in one case where Leo, senior partner, Radcliffe and Musk, inadvertently became embroiled in a Newton hearing (a ‘mini-trial’ in which the judge decides whether to allow a guilty plea on a different factual basis) as duty solicitor. The magistrates retired, and Leo came to the back of the court, annoyed, and told me:

I wish I’d have known that was going to happen. You can’t do trials as duty. I’d have got legal aid. Bollocks. That’s £350 down the drain. That’s ruined my week. I’m really disap­pointed with myself. I should have seen it coming. Actually, I suppose I could do it now [winks].

(Leo, senior partner, Radcliffe and Musk, IC) Leo explained the situation to the clerk:

[Lawyer] I’ve just realised I can’t do trials as duty. You’ll have to grant me legal aid. [Clerk] I’m going to tell!

[Lawyer] Oh please, if I'd have realised I'd have said. It’ll be alright.

(Leo, senior partner, Radcliffe and Musk, and John Wyndham, Magistrates’ clerk, OR)

Having been granted legal aid, Leo jubilantly took his form to the legal aid office:

They made the bloody stupid regulations. As far as I’m concerned, I’ll take advantage of them all day. Lovely!

(Leo, senior partner, Radcliffe and Musk, IC)

He later discussed it with Hank, the senior partner of another firm, Radder Try:

[Lawyer One] I had a very nice little costs victory just now. In the middle of the case, I hand him the form and said: ‘Can you just do a legal aid?’ - yes. Very nice indeed.

[Lawyer Two] You’ve got to make the most of the opportunities.

[Lawyer One] Thankfully it was a reasonable clerk, a pleasant clerk. Could easily have said: ‘Bugger off. I’m pleased with that though.

(Leo, senior partner, Radcliffe and Musk, and Hank, senior partner, Radder Try, OR)

Fixed fees also presented advantageous situations to firms in police station work, as shown in the following discussion:

[Lawyer One] At the moment, it’s not too bad. Because I’ve got a lot of files that we’ve only done 30 minutes’ worth of work on and we’ve got £206 [full amount] for. I’ve only had one where we’ve gone over so far, up at £400, all the rest have gone below. So we’re doing well from it.

[Lawyer Two] It is swings and roundabouts.

[Lawyer Three] Quick jobs are the best things. When they say they’re ready for a quick interview. Loads of shopliftings. All you need is a load of shoplifters. Everyone’s going to be fighting over the shoplifters rather than the murderers soon.

(Dave, police station clerk, Norma and Bob, solicitors, Radford Hope, OR)

This discussion, then, gives some credence to the government’s argument that fixed fees do not necessarily decrease lawyer remuneration, but rather it was an example of swings and roundabouts.

Overall, lawyers did appear to be confronted with an increasingly fragile eco­nomic situation. As such, they were reacting to external pressure. However, this does not justify their treating clients with such disrespect. It seems that lawyers were provided with the opportunity to make back some of the money they claimed to lose out on in other ways. They were able to do this in areas that did not impact upon their behaviour towards clients. This suggests that lawyers wanted to act in this manner.

Ultimately, my data does not allow me to reach a definitive conclusion on the impact that economics had on the performance of these lawyers - I did not see pay packets or accounts. Short of that, though, I would opine that the claims of compul­sion that these lawyers made in interview should be taken with a pinch of salt and their rationale considered somewhat questionable.