Tuesday, 29 April 2014

Cowboy solicitors

This seemed appropriate

When I was training, I was taught that solicitors and barristers should be highly professional, doing their best for their client no matter what – especially if the clients’ interests conflicted with the lawyers’ personal interests.

What I see in practise from those undertaking legal aid work almost always conforms to those high principles.  Sadly, the more I hear about lawyers undertaking privately financed work – i.e. criminal law work paid for by the client rather than legal aid – is falling short of those principles far too often.

Today I spoke to a client who has a drink driving case.  He contacted me and another solicitor for representation.  Neither of us has seen the prosecution evidence since it has not been served yet.  I have my note of our original conversation in front of me, I advised him on possible defences, special reasons and the likely sentence if convicted or if he chose to plead guilty.  After hearing his account, it was clear that there was no defence arising from his instructions and probably no special reason for the court not to ban him from driving.  Therefore, unless there was a defence on the prosecution papers he would have to plead guilty.

The other solicitor told him that she could certainly prove that the breath test machine at the police station was faulty and thus its evidence unreliable – odds were given of a 70% likelihood of acquittal.  Let us just think about that for a minute.  Without seeing any evidence, or hearing an account of the machine operating unusually, this person is very sure that she can prove the machine was faulty?  That seems a little unlikely to me.  Maybe, she has had another case where the intoximeter was proven to be faulty?  It takes a typical case between 3 to 6 months to get from arrest to trial – this can be much longer where expert evidence is required, as it would be in a faulty intoximeter case.  What are the chances that the police would not have had the faulty intoximeter repaired in that time?  I’d suggest they are pretty low.

Is the solicitor giving her potential client the best possible advice and thus acting in his best interests?  I would suggest that sending somebody on a very expensive fishing trip (she quoted at least £10,000, although if he lost he’d have to pick up the prosecution tab as well) is probably not in the client’s best interests.  Sure if they want to give it a go and don’t care about the money after hearing proper advice then it’s up to them but I find the idea of sending your client down that path merely to line your own pockets to be a very unpleasant act.

I am coming across this sort of nonsense more and more often as firms panic in their rush to pick up work.  It’s quite annoying when you know that you are losing business to somebody who will simply fleece the client for as much as they can, which gives all solicitors, including me, a bad name.

UPDATE: 30th April 2014

It is now exactly 23-hours since I published this blog post and I've received a call from another client who chose to instruct me because "you sound honest but the other solicitor I spoke to was promising things that sounded too good to be true" (he may have said "sounded like fantasy" - I wasn't making a precise note).

It's called professionalism people.

Wednesday, 16 April 2014

Do I need a solicitor?

People often call me after they've been charged with drink driving to ask for legal advice... makes sense, I suppose.  The one question I get asked the most (except "how much is this going to cost me?") is "Do I need a solicitor?"  Now, I'm an honest sort of chap so my answer is always "yes"... I mean unless you happen to have the expertise to analyse the prosecution evidence, look for holes in it and devise an appropriate defence or put together a well crafted speech in mitigation that is.

A few months ago a lady contacted me looking for some advice and somebody to help her minimise her sentence after she was charged with being drunk in charge of a motor vehicle.  Convinced she had no defence all she wanted to do was plead guilty and take the punishment that was coming her way.

When I spoke to her and looked at the evidence I quickly realised that she had been in a private car park that did not fall within the legal definition of either a road or a public place.  I took a visit to the scene of her arrest, photographed the area, took statements and evidence from her, her partner, the owner of the land and the company controlling the car park.  We put together a defence bundle that included the statements, photographs, architects plans for the whole estate and various documents proving ownership and layout of the car park.

Sure as night follows day, the prosecution looked at the overwhelming case against them, concluded that they could not possibly prove the allegation and discontinued the prosecution.

This lady had been about to take the driving ban and a community order requiring her to complete unpaid work (given her high reading that was the inevitable outcome).  Instead, she took legal advice from somebody who understands this complex area of law and is now still free to drive on her clean licence.

One of the reasons I gave my up legal aid practice was that with funding so low it had become impossible to properly prepare cases for trial - many firms I knew were operating with very high numbers of unqualified "lawyers" preparing cases with little or no supervision from experienced solicitors.  In order to maximise profits, many solicitors were taking up trial advocacy despite having little or no desire to do that work. 

The case I described above involved three meetings with the client, a visit to the scene of the alleged crime, hours considering the evidence of both the prosecution and defence and more time spent preparing submissions to the prosecution asking them to abandon their case.  Currently, the standard fee for this case would be £279.45, which includes all court appearances, preparation, travel, waiting and the recent 8.75% reduction imposed by central government.  I want to be very clear about this: undertaking this level of work for that fee would make this a loss making case for any solicitor.  It is simply not possible to conduct the work required for that fee!  So, would any sensible businessman or woman repeatedly carry out work that loses them money?  The answer has to be no they would not because to do so will put them out of business.  So, could you expect your case to be properly prepared under legal aid?  I'll leave that to you to decide.

That £279.45 fee is due to be cut again to £254 soon... can a firm make a profit on that case?  Yes, they simply adopt the pile 'em high, sell 'em cheap method of business, a bit like CostCo does.  You simply take the case in, stick it on the pile doing the absolute minimum work on it - hope the client obtains the necessary evidence for you, send it off to trial and hope for the best.  Even on that method I suspect profits would be slim.

I think my point is two-fold.  First, legal aid cuts affect everyone because they drive down the quality of justice that you can expect to receive in this country if you find yourself accused of a crime you did not commit.  Second, if you're in trouble for a motoring offence then contact me!