I no longer provide publicly-funded criminal defence services and I am often asked: “why have you abandoned legal aid”? The simple answer is that I haven’t; my firm is a leading provider of publicly-funded criminal defence services and I am proud of the work we do to protect all of our clients’ basic legal and human rights. That said, the legal aid landscape has changed forever and successive governments (labour and conservative) have chipped away at funding so that whilst those basic legal rights are assured “on paper”, many (dare I say most) individual cases are no longer capable of paying for themselves.
The defence lawyer’s role: businessperson or idealist?
The procurement of publicly-funded criminal defence services is not something that can simply be left to market forces. The firewall that exists as between the paymaster (the Legal Aid Agency) and the recipient of defences services (the client) inevitably results in a tension between:
- The desire on the part of lawyers on the one hand to maximise remuneration whilst providing good value for money; and
- The primary role of acting within the rules in the best interests of the client.
The latter must be a non-negotiable part of any remuneration system, assuring the vital safeguard that, if a citizen is to be convicted, it should be done according to due process and according to law on the basis of proof beyond a reasonable doubt.
A game of Russian Roulette
All legal aid criminal lawyers are now engaged in the business equivalent of Russian Roulette:
- Take a case on and hope that it at the very least covers the cost of preparing it (an empty chamber);
- Take another case on, pull the trigger and hope the cylinder revolves to another empty chamber. If it doesn’t, and the bullet discharges, then if you’re lucky the business recoils and there’s no fatal injury (a so-called “flesh wound”).
You survive only to pull the trigger again. A single discharge could be fatal; so too the cumulative impact of the injuries. If your luck is really in then the fee might exceed the cost of the case, and you can use the balance to buy some medicine. It’s like you’re repairing the injury and getting better, only to play the game again and hope that you are not fatally wounded before you can afford more medicine.
So, and I appreciate that some clients will not like this, I now only take on private cases and we use the profit on these to partly underwrite the legally aided ones. My clients get a first class, premium, service which leaves no stone unturned. They get my undivided, total attention, and I make myself available 24 hours a day, 7 days a week, 365 days a year. The profit I make on those cases partly contributes to ensuring that my firm’s less fortunate, publicly-funded, clients are represented by a well-resourced team.
It’s an uncomfortable truth but any firm that mixes private and legal aid work will be doing the same. They have to.
Yes, I could charge less, but then I wouldn’t be able to remain part of a team which provides the service that I have dreamed of since I was a little boy. My personal clients benefit because the sheer volume of cases my firm undertakes helps inform me of the latest trends in investigative techniques, prosecution and court decisions and priorities. We collectively hone our systems and approaches, and the Tuckers’ hive mind feeds into proven, winning case strategies, directly benefitting the clients that I personally represent.