On 3 October the Criminal Defence Service (Amendment) (Funding) Order 2011 will come into force. Article 25 of the order abolishes the fixed committal fee under the Criminal Defence Service (Funding) Order 2007. This fee currently remunerates practitioners for all work done to represent in committal proceedings before the magistrates' court a legally aided client who is charged with an either way offence, if the client is committed to the Crown Court for trial. What are a solicitor's professional obligations in these circumstances?
The Society's view on this is as follows. Please note this is not legal advice and you should seek your own independent advice if you have concerns about the circumstances of any particular case.
Code of Conduct
Solicitors are generally free to decide whether to take on a particular client (2007 Code of Conduct Rule 2.01(1)). (The position is the same in substance under chapter 1 on client care under the SRA Code of Conduct 2011, which will repeal and replace the 2007 Code on 6 October 2011.)
A solicitor may properly decline to accept instructions to act in the magistrates' court for a defendant in an either way case where they consider it is likely that the defendant will be committed to the Crown Court, and that in consequence they will receive no remuneration for work done in the magistrates' court.
Before accepting instructions a solicitor must discuss costs with the client and in particular whether the client may be eligible and should apply for public funding (Rule 2.03(1)(d)). However, under Rule 2.01(1) the solicitor is not obliged to act for a client even if the client is eligible for public funding.
If a solicitor agrees to act for a client under a representation order granted in an either way case, under Rule 1.04 (and Chapter 1 of the 2011 Code) he or she is obliged to act in the client's best interests and act in the proceedings to which the representation order relates.
By way of example, in the Society's view a solicitor is unlikely to be compliant with obligations if:
- The solicitor accepts a retainer based on a representation order but declines to undertake the work to which the representation order relates.
- The solicitor accepts instructions to 'be a defendant's solicitor' but declines to apply for a representation order or to undertake any work for them in the magistrates' court.
Contractual obligations under the 2010 Crime Contract
A solicitor who holds a 2010 Crime Contract that covers representation in the magistrates' court is not obliged to accept instructions from prospective clients to apply for or act under a representation order. The solicitor has the option of informing the client that they would act only on a privately paid basis, but they must inform the client clearly of this at the outset and must advise the client as to their entitlement for legal aid.
However, where a solicitor holds a representation order for a particular client, they are not in our view able to charge the client privately for work which comes within the scope of this order.
This position appears to be confirmed by paragraphs 8.50 ff of Part A of the Specification to the 2010 Crime Contract. Paragraph 8.50 provides
Subject to Paragraph 8.52 below 1, you must not charge a fee to the Client or any person for the services provided under this Specification or seek reimbursement from the Client or any other person for any Disbursements incurred as part of the provision of such services. This Paragraph does not apply to services you provide which cannot be funded under this Contract or the Act, but which are in connection with a funded Matter or Case. (emphasis added)
Paragraph 8.51 sets out the requirements a solicitor has to meet if they want to continue acting privately for a client formerly represented under the contract.
Where you have been carrying out Contract Work on behalf of a Client, you may not accept instructions to act privately in the same matter from that Client unless the Client has been first advised by you in writing of the consequences of ceasing to be in receipt of services and as to the further services which may be available under the CDS, whether from you or another Provider, (including the possibility of an extension of the limit for Advice and Assistance or Advocacy Assistance, an application for Representation or the availability of Advocacy Assistance or the Duty Solicitor) and has nevertheless elected to instruct you privately.
Paragraph 8.53 makes clear that all contract work is to be paid for by the Legal Services Commission and the client cannot be charged privately for it.
The contract envisages that providers may charge privately for work that could be undertaken under the contract. This may occur either before a representation order is made, by a solicitor declining to provide services under the contract at all; or part way through the case where, having fulfilled the requirements of clause 8.51, a solicitor ceases to act under a representation order. However, a solicitor's professional obligations would require the solicitor to have made clear at the outset the basis on which they were prepared to act under a representation order and the circumstances in which they might cease to do so.
1Which allows private payment for certain matters for which prior authority under a representation order has been refused.