Legal aid rules offer modern equivalent of Schrodinger's cat

Sometimes you have to really think about a blog post, other times kind colleagues in other firms helpfully do it for you.  Today, I am shamelessly copying the words of Andrew Port who is a partner at Dexter & Port Solicitors in Reading.  The text below is from his letter to the Law Society Gazette that was published in the 27th October 2011 edition; both he and the Law Society have kindly given permission for me to reproduce the letter here.

"Now that there is no payment under legal aid for magistrates' court work which is committed to the Crown Court, I find myself in a practical equivalent of the paradox described by Schrodinger and his dead or alive moggy.

I have a representation order for a youth charged with two robberies.  The details of the allegation are such that representations have been made to the prosecution that alternatives of assault and handling would be more appropriate.  The court clerk has already made her view clear that, if the charge remains as robbery, she will strongly advise on committal as a grave crime.  If my representations are accepted the case will stay in the Youth Court.

So at this moment in time I am both funded and not funded.  I am certainly legally aided.  But where is the incentive to waste time actually bothering to represent this youth with no previous convictions?  If I attend court, secure an adjournment, make representation and attend court again, only to find I have been unsuccessful, I will be paid not a single penny for the work (not even the travel costs of getting to the court).  If I succeed, I will be paid a lower category 1 fee [DB note: in London this is £284, outside of London I think it is approximately £230].  Where is the incentive to take the risk of non-payment when the interests of justice clearly demand that this individual should have representation?

And when the Legal Services Commission comes to audit me and demands the instant creation of a work-in-progress figure should I refer them to the paradox of Schrodinger's car or just pluck a figure out of thin air?"

Mr Port makes an excellent point.  Aside from professional integrity and the milk of human kindness, why would a solicitor take the time and trouble to undertake potentially complicated pleadings and court hearings to the prosecution where there is a risk that if he fails he will not be paid, which is the current situation!

Before you think that the answer is that you shouldn't try to have a case dropped unless you know it will be dropped, I invite you to think that thought through properly and ask yourself whether if such a case was so appalling the prosecution might never have been brought?

Defence solicitors regularly come into possession of evidence or information that is not available to the police or CPS.  They then present that information to the prosecution along with arguments as to why a case should be discontinued.  Nobody can be certain that they will win (even if they have right, truth, justice and all that jazz on their side).

I'd also point out that this is not like "no win, no fee" litigation in personal injury cases.  In those cases, solicitors are entitled to charge a success fee of up to 100% of their fee on cases that they win.  Here it's a case of win and get paid, lose and don't.