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Advice to solicitors where counsel ceases to act in crime VHCC matters

27 November 2013

The Society understands that in response to the crime VHCC fee cuts scheduled for implementation on 2 December, barristers may seek to invoke the termination clauses in the standard LAA contracts where they are incorporated into their individual agreements with solicitors. The position for solicitors is different and this article provides guidance on:

(a) solicitors' duties where counsel ceases to act, and
(b) the provisions applying to solicitors withdrawing from work on VHCC cases.

(a) Solicitors' duties

Solicitors have both contractual duties to the LAA and duties under the Code of Conduct where counsel ceases to act. If such action leaves a firm without an advocate for a matter, firms should treat this like any other case where there is a change in the legal team. Clause 3.4 of the 2010 and 2013 contracts states that you are responsible for ensuring that you continue to fulfil your obligations under the Contract and promptly inform the LAA where counsel ceases to act.

Solicitors also owe duties under the Code of Conduct to their clients and the Court, and should act in their client's best interests in liaising with the Court and the LAA to manage the impact of any change to the legal team. Firms are reminded that their own Solicitor-Advocates are covered by the firm's contract - if a barrister ceases to act in a case, the firm and its Solicitor-Advocate must continue to act in accordance with their duties to client and Court, and their own contractual obligations to the Legal Aid Agency.This could include actions such as finding a suitable alternative advocate or if this is not possible liaising with the court to amend timetables or seek an adjournment, as well as keeping the LAA informed of developments.We do not consider that the unavailability of counsel – for whatever reason – creates a contractual obligation on a Solicitor Advocate to take over the barrister’s responsibility, although the particular circumstances of a case may raise an expectation that a Solicitor Advocate is able to take on responsibilities in the same way a junior barrister might be expected to do in the absence of a senior colleague.

Solicitors will need to consider whether they have the capacity to undertake the advocacy in-house. In doing so, they will need to consider whether they or other advocates in the firm have the experience or competence to act as an advocate in a trial at this level in the best interests of the client. The Code provides that solicitors should not undertake work which is outside their competence.

(b) Solicitors withdrawing from contract work

2010 and 2013 Standard Terms

Under the 2010 and 2013 standard contract terms, firms are entitled by clause 25.1 to terminate by giving 3 months' notice, or under 25.2 firms have a right to terminate if the LAA changes the contract, including any changes arising from legislation under clause 13.2. Notice of any termination under 25.2 must be served before the legislative change comes into effect and the termination will take effect on the day before the amendment would otherwise have come into effect.

Firms must be aware of the consequences of termination set out in clause 26, which provides for identifying work in progress and, where the termination is not for breach, for the management of 'Remainder Work', which is dealt with in detail in clauses 26.10 to 26.12. Clause 26.3 states that (subject to remainder work) all Contract Work in the relevant Category of Work / Class of Work from the Location the Contract Work is delivered must cease. These clauses are common to the Civil, Crime and VHCC contracts, as well as the Family, CLA and Welfare contracts.

Remainder Work is Contract Work which is being performed at the date of termination and which the Agency authorises the firm to continue to perform. Clause 26.10 provides that the LAA will normally authorise a firm to continue to carry out Remainder Work, but with the discretion to impose further conditions or restrictions. Clause 26.11 makes this authorisation conditional on firms notifying their clients and giving them the option to transfer to another provider, and also confirming to the LAA that the Remainder Work is unlikely to take more than 2 years to complete. The terms of the contract remain in full force in relation to Remainder Work, subject to the terms of any replacement contract that may be entered into (26.12).

2008 Crime Panel Members VHCC Contract

The 2008 VHCC contract has similar provisions to the 2010/13 contracts for provider termination on 3 months’ notice (clause 11.7), or in the event of change (clause 30.7), but the consequences of termination are slightly different. Clause 38 gives the LAA the power to terminate the Panel Member’s General Criminal Contract with the LSC/LAA and any other individual VHCCs as well. Clause 39 then provides for transfer of VHCC work following termination via an exit management strategy to be agreed with the Agency (clause 39.3). The option to continue with open VHCC cases will be at the discretion of the LAA. (clause 39.4).

The Society encourages all firms to consider their own circumstances in the light of the terms of the contracts they hold with the Legal Aid Agency. The Society has consistently held that collective action by the profession as a whole, local law societies or local groups is caught by the UK competition law prohibition of anti-competitive agreements and trade association decisions.

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