The succession crisis is real and it’s one of the biggest problems facing this limb of the profession. Unfortunately, it is a problem that is seemingly only going to get a lot worse as time goes by. Some lawyers say it’s a ticking time bomb. I’d argue the bomb has already exploded.
Worryingly, the succession crisis is not a segregated issue. It is a real problem across the board, impacting on all areas of legal aid and social welfare. But for the system being held together by dedicated lawyers, goodwill and the staff and volunteers at organisations and charities such as the Citizens Advice Bureau and The Law Centre Networks, the justice system (and access to it) would completely collapse. Universities are also contributing; many now offer free legal advice via law clinics to help those in need who cannot afford legal advice.
When it comes to criminal legal aid, in my view, the succession crisis, along with so many other issues, has a root cause. The continuous cuts to the justice department, namely legal aid and in some instances, the removal of legal aid altogether, has left the profession struggling when it comes to profitability, sustainability and succession.
Some of you reading may wish to pounce on the ideology conveyed by politicians and media outlets who often label legal aid lawyers as ‘fat cats’. I’m afraid I cannot do better than the Secret Barrister who does an excellent job at dealing with those myths here and of course how criminal defence lawyers sleep at night.
Succession is hugely important in all professions, whether it be training the next generation of nurses and doctors, police, teachers, firefighters, engineers and so on. Succession is important for humanity generally. That general rule of thumb does not differ when it comes to criminal defence lawyers.
Of course, some may well argue that criminals shouldn’t get any legal aid. But never forget that the burden is on the Crown to prove that a suspect has committed the said criminal offence beyond all reasonable doubt. Criminal defence lawyers, whether advocates or litigators are there to challenge the Crown’s evidence against the suspect, take instructions from the client and present them to the court. It is crucial that we remember our justice system is a fundamental pillar of society and critical to ensure we have a democratic civilised society. When we acquit the innocent and convict the guilty, we must have faith in the criminal justice system. Anybody can be suspected of a criminal offence because crime does not discriminate. Should the need arise, you will need a criminal defence lawyer.
Unfortunately, the criminal defence profession is an ageing profession, with an average age of about 50 years old. The age demographic is important for two reasons: firstly, it suggests few young lawyers can penetrate the criminal limb of the profession and secondly, the clock is ticking for young lawyers to be trained and supervised by experienced litigators and advocates.
There is no issue when it comes to recruitment. Some law graduates may well be put off from a career in legal aid, but the reality is, many are still interested and wish to practice criminal law.
Legal Cheek reported that 2,089 wannabe barristers submitted 14,516 applications for just 224 pupillage spots in the January 2018 window. Sure, the Pupillage Gateway does not consist of all chambers, but factoring in many criminal sets advertised for pupils this year, the statistics prove young legal aid lawyers are not deterred.
Moving on to Trainee Solicitors, the issue of interest is more difficult to prove. However, based on personal experience, I believe interest is similar to the Criminal Bar. There are however, important questions being asked by young legal aid lawyers and by one of the largest criminal legal aid firms in England and Wales:
“How many criminal legal aid firms offer training contracts across the country? 20? 30? We need to know the answer!” – Tuckers Solicitors
The fact is, there is “…little incentive for debt-saddled graduates to opt for a career in legal aid work…” – House of Commons Committee of Public Account. Consequently, “we now have a generation of aspiring commercial lawyers because they cannot work in crime – the poorest people will suffer as a result” – Jeremy Corbyn MP
I wonder what young criminal legal aid lawyers have done to forge a career in criminal practice? Great question, allow me to briefly explain. The average law graduate leaving university today has spent roughly 4-6 years studying towards undergraduate, postgraduate and professional courses, accumulating debt of around £60,000.
Many have volunteered their services at charities, law clinics and gained as much legal experience as possible, whether that be mini pupillages, paralegal experience and of course anything and everything non-legal to pay the bills and gain transferable skills. Salaries for young lawyers in this field ranges from minimum wage to £18,000 (if you’re lucky). Many work for free.
Come on, it’s surely not that bad is it? Yes. Yes it very much is. This is a fuse that was lit decades ago and we are finally witnessing the explosion of it.
Remuneration and succession go hand in hand. Whilst this is my opinion, it’s also Recommendation 174 by Lord Viscount Runciman who lead The Royal Commission on Criminal Justice in 1993. He recommended;“keeping legal aid fees under review to ensure they are adequately attracting sufficient number of competent lawyer”.
Clearly, this hasn’t happened. Incredibly, “Defence solicitors have not received any fee increase since 1998” – The Law Society. So it’s no wonder legal aid firms have struggled to afford paralegals and trainee solicitors.
Most recently, The Law Society initiated judicial review proceedings against the Ministry of Justice following the October 2017 30% cut to legal aid for litigators. This was followed by a rearrangement of the deck chairs on the sinking ship when the advocates fees were shuffled around a little bit. Quite simply, The Law Society described it as “Robbing Peter to pay Paul”.
To conclude, until the Government amend the fee schemes, namely the Litigators Graduated Fee Scheme (LGFS) and the Advocates Graduated Fee Scheme (AGFS), thus adequately remunerating criminal legal aid lawyers, the Government will continue to neglect the crisis that is criminal legal aid succession. The now delayed review of the monstrous legislation, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), cannot come quick enough.
Moving forward, unity between solicitors and barristers is essential; both need a seat at the negotiating table. As YLAL put it:
“rather than having separate consultations for the AGFS scheme and the LGFS scheme, and the promise of a further longer term consultation on the LGFS scheme, the issue of public funding and cost drivers in the criminal justice system should be considered as a whole.”
The Government may of course treat this for exactly what it is and suggest this is just a blog. But if I may, I’d like to remind the Government, namely the Ministry of Justice, ‘About [You]’:
“The Ministry of Justice is a major government department, at the heart of the justice system. We work to protect and advance the principles of justice. Our vision is to deliver a world-class justice system that works for everyone in society”
Unfortunately, it’s not working for everyone and I fear it is no longer world-class. It’s certainly not working for the hardworking lawyers doing their best to hold together a crumbling criminal justice system. I cannot put it down to anything other than an ideology that places a price on justice. I am not advocating removing our justice system from the political arena, but simply making it more difficult to place a price on justice. The current price on justice is starving the profession of succession, but more importantly, starving the public of future professional assistance, creating an imbalance when considering the scales of justice.
The time has come for an independent pay body to resolve the fully blown emergency. It may be even worthwhile looking at a new route to qualification for criminal lawyers – a hybrid prosecution-defence career path to tackle the ‘unprecedented recruitment crisis. Personally, I think many would quite like to spend time in a defence firm, CPS, Chambers and possibly even police station work too.
As for succession issues generally, it’s not just me saying this. I’m just the one pulling it all together. I end this entry with the views of lawyers far more experienced than I.
08 March 2018
“The legacy issue is a ticking time bomb and time is running out. But what does the MOJ do? More cuts to make legal aid less viable. Few can afford the luxury of trainees now. As firms give up on legal aid who trains the next generation of lawyers in this highly specialised work?” – Robin Murray, Tuckers Solicitors, Winner of Legal Aid Lawyer of Year Award 2015
“Criminal lawyers are part of an ageing profession and it is becoming ever more difficult to replace criminal lawyers as the old ones retire or leave. The ageing of the profession indicates that youngsters are no longer interested in a career in crime. It is simply no longer attractive from the point of view of prospects and living standards” Bill Waddington, Williamsons Solicitors, Chair of the Criminal Law Solicitors Association (CLSA)
“Many of our member firms reliant on criminal legal aid have problem recruiting young solicitors, and nobody in conscience could recommend a new graduate joining a criminal legal aid firm as a career choice unless in a mixed practice or subsidised by private work” – London Criminal Courts Solicitors’ Association
“I deliver PSC training to trainee solicitors. I will struggle to remember more than three in the last five years who have indicated an ambition to work in criminal legal aid. I see no prospect at all of there being lawyers in this area within ten years” – A Deputy District Judge
“Even we, a predominantly criminal legal aid firm, suggest work experience/placements think long and hard about a career in legal aid” – VHS Fletchers Solicitors
“YLAL believes that the impact of the proposed changes to criminal legal aid, taken together with cuts implemented by the previous government, will be harmful to the provision of criminal defence and will have particularly negative consequences for junior barristers and solicitors” – Young Legal Aid Lawyers
“The problem of crime legal aid firm sustainability is exacerbated by the age of demographic of crime specialist Solicitors who are disproportionately in their late 40s and 50s due to difficulties of attracting younger Solicitors to this poorly remunerated work of this kind” – The pre-action letter sent to the Ministry of Justice by Bindmans LLP on behalf of The Law Society
“Great people are leaving the profession and almost no one is choosing to join it, which is a problem for the future. It is our children and the most vulnerable people in our communities who will suffer. With any further cuts whatsoever, we can be satisfied that the criminal justice system will collapse entirely” – @crimegirl
“The current underfunding of legal aid is simply not sustainable” – @BarristerSecret
“Unless there is a constant influx of high quality young advocates into our referral profession, and a sustainable future for them once they have joined, we will inevitably wither and die” – Joint Statement from the Circuit Leaders
“Things are so bad now that few are opting to become criminal defence lawyers….This is not about money for lawyers. It is the liberties of England that are at risk” – Sir Henry Brooke, via Criminal Bar Association Monday Message
“Recruitment and retention of criminal barristers is at an all time low. We must protect the future of our profession by campaigning for measures that assist the most junior” – Angela Rafferty Q.C, Chair of the Criminal Bar Association, Monday Message
Criminal legal aid succession for both solicitors and barristers is a “crisis”, “continuing to hemorrhage”. Further still, cuts are leading to the “extinction” of young lawyers in criminal law – Angela Rafferty Q.C, Chair of the Criminal Bar Association , Monday Message
“It would be wholly irresponsible of the Law Society to encourage young lawyers with high student debt to enter an area of practice where there appears no prospect of it ever being economically viable” – Joe Egan, President of the Law Society