As you know, a number of categories of law will be coming out of scope of legal aid contracts in April 2013. The contract permits you to undertake run-off work, completing the cases for your existing clients. If you cease to undertake this work, any legal aid certificates you hold can be transferred to another firm. But at the controlled work level, the position is different. If a client's legal help or controlled legal representation case has not been completed, that client will, on the face of it, not be able to transfer to another firm, because no firm will be able to start a new matter in these categories of law after April 2013.
This scenario gives rise to questions of professional conduct and contract law as between your client and your firm, as well as issues under the legal aid contract. It is vital that you consider these issues now, so that you can bear them in mind both in thinking about what clients you intend to take on before April 2013 and in deciding what you do after that date. You may also wish to adapt your client care letter now in order to warn clients that if a matter is commenced on legal help now, and would, but for the cuts, progress to a full legal aid certificate after April 2013, there will be no legal aid funding for that work in the future.
Let us look first at the retainer with the client. Underwood Son and Piper v Lewis [1894] 2 QB 306 set a precedent that, while a solicitor is instructed in a case, they must act until the retainer has been completed. However, a solicitor may terminate the retainer before the end on reasonable notice and if they have reasonable grounds for refusing to act further.
If your position is that you are intending voluntarily to shut down the relevant department in April 2013, there is a compelling argument that this would not be reasonable grounds for terminating the retainer. You may still have an obligation to the client to complete the case. Moreover, there is also a strong argument that at the very least, reasonable notice in that scenario must be such that the client would have an opportunity prior to 31 March 2013 to find another provider. Indeed, good practice would probably be to ensure that you are letting clients know now what the position will be. You may even want to consider whether you should take on new clients at all, if their cases are likely to continue beyond the date at which you intend to shut down the department.
If you intend to continue but then lose a member of staff whose presence is vital to being able to conduct this work, the position is slightly more nuanced. It might be arguable in this situation that your professional obligation not to conduct work that is outside your competence amounts to good reason to terminate the retainer. However, a potential counter-argument is that the retainer is with the firm, and the firm has an obligation to provide services in a way that meets those professional obligations.
Eventually you may reach the point at which it is no longer economically viable to keep your expert in an out-of-scope field of law. Alternatively, you may hit a point at which your supervisor can no longer hit their 'flying hours' as required under the legal aid contract, at which point the Legal Services Commission (LSC) is entitled to terminate your right to continue undertaking the work.
It is worth considering the position under the legal aid contract in the event that you cease working.
Clause 26.1 of the Standard Terms states: 'When you become aware that your right to perform any contract work will end, you must immediately notify all clients who will be affected by termination, take all reasonable steps to protect them and their rights, and provide them with information about other providers able to continue their matter or case (and offer to make appointments with them) and with such other information as we may specify.' This reflects the professional obligation, and gives it substance in the legal aid context.
When your contract ends, you are entitled to bill work, even if you have not completed the case. Under clause 4.36(b)(ii), the LSC is entitled to assess cases and pay the lower of the assessed amount or the standard fee. This may therefore mean that if you seek to bill incomplete cases, you will receive significantly less than the standard fee for that work.
We are in discussions with the LSC as to how the challenges of this situation can be resolved in the best interests of clients. We believe that it may be possible to find a solution using agency rules, so that if you cease to undertake a category of work within your firm, you can instruct another firm or a freelance expert to complete the cases as your agent (Conversely, for those intending to undertake run-off work, accepting such agency instructions from others may be a way of maintaining volumes for longer in order to keep the work economically viable.) However, this will depend on the LSC feeling able to relax some of the rules relating to agency work. We will report back on these ongoing discussions in due course.
Richard Miller, head of legal aid at the Law Society