Although the Legal Aid, Sentencing and Punishment of Offenders Act only comes into force on 1 April 2013, there are things you need to be doing today to make sure you are ready for it. Law Society head of legal aid Richard Miller summarises some key messages from the Law Society's legal aid roadshows in 2012.
You can hear a podcast of the whole roadshow via the Law Society website.
Notify current clients of the implications
In those areas that are coming out of scope, you need to notify clients of the potential implications of the removal of legal aid from scope. For example, if you refer a family client to mediation, it breaks down, and they come back to you seeking legal aid to take the matter to court after 1 April 2013, legal aid will not be available to them. They need to know that if they need legal aid, they will have to apply by 31 March.
Clients also need to be aware that if their means change, and they are assessed as financially ineligible, they will not be able to get legal aid back in these categories if their means then worsen again. Moreover, there is a possible implication of the new means testing rules for those who continue to have legal aid, whether in areas remaining in scope or those coming out of scope. For so long as their means remain the same, clients currently on legal aid will continue to be entitled to legal aid and their contributions will not change. However, if their means change and fall to be reassessed, they will be reassessed under the new rules, which means they may face higher contributions than they would under the existing rules.
Consider whether you are going to undertake run-off work
The contract allows you to complete matters you have started, when your contract comes to an end, at least for as long as you continue to meet the contractual requirements. After April 2013, in the areas coming out of scope, you will be able to transfer a legal aid certificate to another firm, but you will not be able to transfer legal help clients, as the new organisation will not be able to open up a new matter start to continue the case. You have professional obligations, and duties under your retainer, which mean that you are likely to be under an obligation to see that the case is concluded.
There are a number of possible scenarios. You may be intending to close down your department. You may be intending to do run-off work, but then your supervisor leaves so you no longer have the necessary expertise to do so. You may do run-off work for a while, but then reach the point where it is financially uneconomic to keep someone on to finish the remaining cases.
Some firms will be able to find other work for a member of staff to do alongside finishing off these cases. But if that is not possible, you may need to use agency rules to ensure cases are completed. If there are a number of firms in your area in the same position, you may want to agree among yourselves that one firm will keep someone on to complete the cases, and the others will instruct that firm as their agents to conclude the cases. There may well be some experts in these fields who go freelance, and are able to accept agency instructions from a range of firms to conclude these matters.
But whatever you do, the one thing you cannot do is just close the file and tell the client it is their problem.
Think about how you will handle new family clients after 1 April 2013
New family clients will not be entitled to legal aid unless:
- they are applying for an injunction, or
- they are already in mediation, or
- they are already in possession of evidence of domestic violence.
There is therefore a real risk that you will inadvertently end up doing a lot of free first interviews.
One approach would be to charge for all first interviews, and then take the case forward on legal aid only from the moment the evidence has all been gathered to prove eligibility. Realistically though, a lot of clients will not be able to afford that, and many more are likely to be discouraged from instructing you by such a move. For many firms, the reality will be that the initial interview must be kept free. That being the case, you may need to be a lot stricter in limiting the time spent on that initial interview.
It might be sensible to work on the basis that all new clients have an initial meeting or discussion with a less qualified member of staff – ideally when they contact you to make the appointment – to go through the details, establish whether they may be entitled to legal aid, and to explain to them what they need to produce in order to get legal aid. The more senior fee earner, under this model, would only see the client once the proof of eligibility has been obtained, or alternative payments arrangements agreed.
There is another more radical option you might consider. Instead of offering the client legal services, you could offer them mediation as the first option. Secure the mediation business for yourself, and refer the client elsewhere for legal advice. That will also ensure that when the client does go to another firm, they will be signed up for mediation and therefore eligible for help with mediation from that other firm from the first interview.
If you are going to go down that route, you might want to team up with another firm that also offers mediation and agree to cross-refer to each other in this way. That would ensure that you each do a lot of work that is paid for, instead of each doing a lot of free work.
But whatever you are going to do, it is essential that you think through the issues now and come up with a concrete plan as to what you are going to do, rather than just stumbling forward, unintentionally doing lots of work for free.
Make sure you understand the civil scope rules
The most important advice is: read schedule 1 of LASPO. Think about the cases your firm undertakes, read the relevant parts of part 1, read through part 2, and satisfy yourself on the question whether any of the cases you deal with might fall outside the system.
View the schedule
Remember that auditors will be checking your files for confirmation that the case falls within schedule 1.
You may want to set up a process to ensure that with any cases outside the mainstream of cases in your categories of law, you double-check LASPO before undertaking the case to make sure you can show that it is covered.
Think about how you will handle requests to apply for exceptional funding
It is not clear yet how many requests for exceptional funding might arise. The government is expecting 6,000 applications, but this may be a significant underestimate. If you prepare an application for exceptional funding, there will be no payment for the work done on the application if it is not successful. Even if it is successful, you may find that the payment is inadequate. You should decide now if, and to what extent, you are going to spend time on such applications. You might opt for a blanket policy that you will always submit an application if the client requests it, or conversely that you will never do so. Most firms are likely to want to submit some applications. You may find it sensible to nominate one person, or a small group of people, who have the authority within your firm to decide that resources should be expended on an exceptional funding application, in order to control how much work your firm undertakes 'at risk'.
Train your staff
It is important to ensure that your staff fully understand how the changes will affect them, well in advance of April 2013. The training might cover:
- what is in and out of scope – of legal aid generally, and of your contract
- exclusivity of all categories and the end of tolerance work
- what falls within the telephone gateway
- capital means test for those on passporting benefits
- evidence requirements to show that the case is in scope
- what constitutes evidence of domestic violence to trigger entitlement to legal aid for broader private law family cases
- your firm's policy on exceptional funding cases
Richard Miller, Law Society head of legal aid