System meltdown

We have just had our latest Legal Services Commission audit '“ and we passed! We've had audits since our first pre-franchise days in 1993. We were then audited by teams of three people dealing with things such as transaction criteria and going through files to make sure we had done things correctly and at the right time. Now we only have one auditor as the LSC can't afford three.

In 1993 one of the buzz words was business planning. This was tough because at the time small firms didn't know much about it but had to learn quickly; to pass our various audits we put together plans as to how we saw the firm progressing over the next five years. We put together a business plan last year which I duly handed to my auditor a few weeks ago. We indicated that we wanted to expand our family department, and hoped to get a successful new contract in family matters linked to a housing bid. We were delighted to discover that we were successful with our bid for a new housing and matrimonial contract and had actually received more matter starts in matrimonial than previously.

Beginning of the end?

However, the whole tendering process is now in meltdown. The Law Society is applying for judicial review of the tendering process, as are many firms. This, as reported in this issue of Solicitors Journal, has prompted the LSC to start discussions with the society, but their concerted attack on a very fragile selection process in respect of tendering paves the way for either a complete dismantling of the tender process or something else entirely. Could this be a prelude to the dismembering of the legal aid scheme?

Which brings us back to business planning. While it is probably true that the legal aid system is going through the paroxysm of some dreadful demise, how are firms like mine that are locked into legal aid ever going to plan for the future?

We have an appalling situation where we are told there are going to be swingeing cuts in October, and there are rumours about ancillary relief being taken out of scope and immigration pared down to the bare necessities. They could take housing out of scope as well '“ something my firm does a lot of. I also cannot look forward to a new contract in October as it may be that the Administrative Court will say that the whole system was not as it should have been.

So where do we go from there? Will we have a new tender process with perhaps more vigorous selection criteria? This is frustrating; on at least three occasions in meetings with the LSC over the last year I asked them what the selection criteria would be. They always wriggled unhappily in their seats and refused to let me know. Whether that was because they didn't know, or, worse, they did know and realised they were wrong we will probably never find out.

Towering inferno

Legal aid firms like mine that have been told for years to plan for the future are lost in some sixth circle of Dante's Inferno, knowing how to plan for the future but not knowing if there is even going to be one. I suspect that some firms are in a far worse situation: some successful bidders may have employed significant numbers of staff and possibly signed up leases for premises which may now never be used, while firms that didn't succeed in getting a contract may have made staff redundant and those staff may already have left those firms.

I have no problem with the Law Society's judicial review of the tendering process. I have the utmost sympathy for those firms that have been denied a contract based on some strange tick-box exercise. What concerns me is the bigger picture. Anyone proposing to take a training contract with a legal aid firm should examine what options they have if that firm ceased practising during the two years of the training contract. Would anyone want to enter a profession which is built upon such shallow foundations? Which is at the whim of politicians and where those in charge make decisions that are very fickle, transitory and not in accordance with best practice?

I wonder what those who set up the system back in 1993 think of all this. When franchising first came into being the mantra was quality. We only want quality firms spending public money, hence the vigorous auditing process. In the beginning I was being audited once or twice a year, nowadays the audits seem to concentrate on work in progress and eligibility for legal help forms rather than the quality of the work. Most importantly, however, is that those who set up the franchising system did at least have some vision for the future. The current situation is confused, illogical and appears to be something of a lottery as to whether individual firms will continue in practice.

The LSC's auditor who audited my offices last week liked the fact there was a friendly dog around. She said 'that's a first'. It would certainly be a first in recent years if legal aid practitioners could be given a break and told exactly how their business was going to be dealt with over the next five years. I simply have not got a clue.