Friday, 17 August 2012

Pay with peanuts, get monkeys

My job is on the line.

I was hired to take up all the Legal Aid work that my firm does, primarily Family Law and Criminal Law. I work under close supervision of senior practitioners, who are able to assist me with any questions I have. My work is regularly reviewed by the principal and the other senior lawyers. My supervisor for Family Law no longer bothers to edit my letters unless I have specifically asked her to. My Criminal Law supervisor is in the office next door, and is only involved in my files now when I need a hand or am unsure of a process. 

The most important aspect of my employment was that I would undertake ALL the Court work for our office, meaning that the senior practitioner doesn't have to waste his time going to- and from Court. Why? Because he is paid more than me, and he makes more $$ for the firm than me. 

I was employed by my firm as a 'Law Clerk' before I got my practising certificate, and our family lawyer decided that we were losing money by doing Legal Aid Family Law. The solution? Hire someone to do exclusively Legal Aid, who isn't costing the firm money. 

It has been working out amazingly for everyone. I am covering my wages plus a bit more, so the firm is ahead. The senior practitioners are pumping out more private bills because they aren't wasting time on Legal Aid, so the firm is even further ahead. Finally, I am getting the most amazing experience under the supervision of some fantastic mentors, so I am light-years ahead. 

Then this happened. That link takes you to a letter that the Legal Services Commission has sent out to all firms offering Legal Aid. 

To summarise, "The Commission has become increasingly concerned about the number of newly admitted practitioners holding themselves out as representing clients in serious criminal cases. In fact, the Commission is being asked to assign matters direct to newly admitted practitioners as solicitor and counsel to prepare for and represent clients in Supreme and District Court trials."

As of 3 September 2012, the Commission will be assigning matters as follows:
  • Summary matters (minor matters in the Magistrates Court only) can be assigned to a junior practitioner in their first year of a restricted practising certificate;
  • Minor indictable matters (Magistrates Court or can be called up to the District Court) can only be assigned to practitioners in their 2nd year of a restricted practising certificate, and only if they are adequately supervised;
  • Major indictable matters, including anything in the District or Supreme Courts can only be dealt with by a practitioner on an unrestricted practising certificate. Junior practitioners can do specific tasks, but cannot do any Court appearances.

This severely limits what I can do. It also limits my use to the firm in preventing my supervisor from having to attend on criminal matters so he can focus on his other (more lucrative) work. 

Of the thirty- or so criminal files on my desk at any one time, probably 1/3 have a minor indictable matter attached. 

Previously, the LSC refused to grant me funding in a major indictable matter, so it is technically assigned to my supervisor, but I am doing all the work on it. On that file, however, I am supervised not only by my supervisor, but by the principal of the firm, who has recommended who we brief, how we brief, and what work needs to be done. That file has been tremendous experience for me, and was, in fact, my first District Court appearance, robes and all. 

In my private practice, I have now done pleas for firearms offences in the District Court, with very positive results. We act for a man charged with manslaughter in the District Court, and that matter has just been set down for trial. I have appeared on all of the arraignments in that matter, and have been the first point of contact in dealing with the DPP. Again, my principal is technically in charge of that file, and is supervising my every move. I have learned so much about file management, and everything that is required to actually take a file to trial.

I don't know if this is unusual, but my firm feels that its reputation depends on the work that each and every solicitor does. Therefore, they were not willing to let me send out ANY letters, or do ANY court work until they were satisfied that the letter was of high enough quality, and that I was sufficiently prepared. After all, if I screw up, it isn't the LSC that looks bad, but my firm. Therefore, the quality control aspect comes from the firm, not from the LSC. 

I say now that if I wasn't sufficiently qualified and experienced to do the work I am doing, my firm would not let me do it without significant supervision. 

If the LSC wants to salvage its reputation by increasing the quality and experience of its lawyers, here are some suggestions:
  • Pay better. If you want senior practitioners doing LSC work, pay senior practitioners rates. Hell, even if you only pay to the Magistrates' Court Scale, you will get far more firms offering Legal Aid services. At the moment, it just isn't economic to do Legal Aid if you are anything but a 1st or 2nd year lawyer!
  • Pay for more. Barristers have said to me that they don't mind doing the work for 1/2 the commercial rate, but they object to only being paid for 1/2 the work they do at 1/2 the rate. Same goes for solicitor work; pay for each necessary attendance, and each client interview if more than one is necessary, and you will find people giving much more attention to those clients.
  • Direct quality control. Audit practitioners, make sure they are being supervised adequately. Ask for statements from senior practitioners outlining the amount of supervision they give. Talk to Magistrates and find out if they have concerns about any specific practitioners. Offer accreditation courses with the LSC, funding being conditional upon either significant experience or passing an accreditation course (I don't know, like maybe a law degree...)
  • Upgrade the applications and correspondence process. This is the 21st century; I think we can probably move beyond letters now. Save paper, save time. I don't want to have to wait 4 days for a letter from the LSC to arrive telling me they won't pay for the work I have done. Use the internet! Email grants/refusals straight to the practitioner! Allow firms to apply for aid online. 
  • Liaise with Centrelink directly to get payment details for clients.
  • Answer your bloody phones! I know you want everything in writing, but if a 2 minute phone call can answer my question, we have saved 10 minutes on both sides drafting, printing, sending a letter. Plus, I know the LSC doesn't care, but if my client is in my office wanting to know if I am going to Court for him tomorrow, I don't want to wait for my fax to go off (up to 5 tries), and a letter to return.
  • Grant funding to a firm, not to an individual practitioner. Make it the responsibility of the firm to ensure that the lawyer they use is good enough.
I accept that the Commission has come under fire for paying for inexperienced solicitors to do Legal Aid work, but at the end of the day, it should be the firm's responsibility to monitor performance. 

I could keep going, and I want to rant some more about the Commission's attitude to country practitioners, but I will save that for another day.

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