Through the valley of the shadow of justice...

I trained in a medium-sized practice in London and then worked in a legal aid practice in Peckham, south London for six years before moving to north Wales in November 1995. After training I specialised in clinical negligence and housing. The Peckham practice carried out legal aid work in a number of areas including personal injury, clinical negligence, family, housing, immigration and crime.

Regional differences

On moving to north Wales I quickly discovered that working in a rural area was completely different to Peckham! The quality of life was definitely better but there were issues about lack of specialisation, transport and accessibility to legal services in rural areas. Surprisingly hours of work were not less as I would have presumed.

Over the last 11 years in north Wales, I have seen many changes to the legal aid system and have seen the goalposts moved on many occasions. The amount of publicly funded work carried out by firms has greatly reduced and many firms have come out of legal aid entirely. I now work for one of the largest firms with an office in north Wales. The firm came out of matrimonial legal aid a few years ago and now only has franchises in clinical negligence and crime.

Disappearing services

A major research project was carried out looking at legal services in rural Wales by Robert Lee and Alex Franklin in 2006 (Legal services in rural Wales '“ a study of law firms, published by the Law Society in 2006 and available on the Law Society Website.) This was conducted on behalf of the Law Society Wales Office by the University of Cardiff. A number of key conclusions were reached in relation to legal firms in Wales which are relevant to the issue of legally aided services in rural Wales:

• Outside the Swansea, Cardiff and Newport conurbations, legal services in Wales are fragile;
• The age profile of solicitors is high with a mean age of 46;
• l Less than one firm in five has a trainee and some unitary authorities do not have lawyers in training, meaning that an ageing population of solicitors is not being replenished;
• Firms remain small, with one-third of firms containing one qualified solicitor and almost three-quarters of firms having three solicitors or fewer;
• External changes such as court closures have had a dramatic effect on law firms and clients to the detriment of both;
• Solicitors are abandoning publicly funded work to move to core areas of privately funded work;
• Legal aid work is an important source of work for firms outside Swansea, Cardiff and Newport. This is particularly so in the valleys where there are fewer firms;
• Some people interviewed felt that there was a danger of a two-tier division of private and publicly funded legal services;
• Given the age profile of the profession and the lack of new blood coming into small rural practices, legal services will disappear in some communities in the future unless action is taken now.

Franchise problems

There is clearly a trend towards greater specialisation and centralisation of legal services which presents major issues for rural firms. The criteria for the various franchises require certain types of cases to be undertaken and specified volumes of work. The variety of cases and the volume required may not be present in a rural area so it is very difficult for firms to qualify for, and then keep a franchise. This is particularly so for the more specialised areas of work. The question must be asked '“ do people in rural areas have access to the specialist legal advice that they need?

In my own area of work, a franchise has been necessary since August 1999 to do publicly funded clinical negligence work. The requirements of employing a panel member have meant that a firm has to deal with a significant number of cases. In north Wales the number of firms undertaking this area of work has reduced considerably. Apart from Walker Smith Way there is only one other firm with an office in north Wales holding a clinical negligence franchise. There are no firms in the mid-Wales area with a franchise. Issues clearly arise about access to justice.

Access to justice

Potential clients in rural areas either have to travel substantial distances to see a solicitor, rely on the solicitor to travel for nothing or almost nothing or not pursue their case. When in cases where clients do not meet the criteria to allow us to claim for travel we will often travel for nothing because the client does not have the transport to come and see us. The lack of suitable public transport makes accessing a specialist solicitor very difficult. No allowance is made in the nationally fixed fees for controlled work to cover the additional travel expenses in rural areas. The Legal Services Commission (LSC) relies on the fact that we will be prepared to travel, often for three to four hours, for practically no pay.

The issue of ability and willingness to travel has also been affected by the closure of many local courts with the result that practitioners and clients have to travel much further when attending hearings. This is also an issue in relation to criminal cases.

Mental health

There are now only two firms in north-west Wales offering mental health law as a speciality (information provided by Julie Burton Law, Bangor, north Wales). No allowance is made in the national fixed fees for the distance that they need to travel to visit clients. Only one firm in north and mid-Wales is doing community care work; the same firm is considering coming out of specialist educational work as the national fixed fees do not reflect the work that has to be carried out. Effectively they are making a loss on this work. Small rural firms do not have sufficient private income to be subsidise their legal aid work. As one legal aid practitioner recently told me: 'They are counting on the fact that people like us want to do this work and are bleeding us dry.'

Rural/urban difference

I know from my own experience that firms in urban areas have a much greater volume and variety of work. They may have more junior fee earners to whom work is delegated. They can practice economies of scale and make up for the cases where they go over the fixed fees with the more straightforward cases which do not. A small rural firm does not have this luxury. It will generally have a lower volume of cases and may specialise in the more difficult cases. The current system of an average national fee does not reflect the profile or difficulty of their cases, the volume of cases undertaken, the fact that there may only be one fee earner who can do the work or the additional travel in rural areas. Some solicitors regard the fixed fee as an attack on complexity.

Legal aid issues

Criminal legal aid in rural Wales is becoming more and more difficult. Courts have closed and therefore solicitors have further to travel. Difficulties with the duty solicitor scheme and the number of solicitors available to cover it puts a greater burden on those within the scheme. In rural areas, small firms may not be able to do criminal work exclusively but have difficulty in combining this with other areas of work due to lack of other fee earners to provide additional cover. It can also have great impact on the amount of work done out of hours as a few fee earners need to be available day and night. It is small wonder that firms are considering coming out of criminal legal aid especially now that the new proposals on fees suggest that fees will be cut again.

The additional requirements and bureaucracy associated with a legal aid franchise also have to be considered. There are substantial requirements in relation to information technology which raise questions about the ability of small rural firms to invest in the equipment needed. In smaller north Wales firms, support staff are few in number and are not available to deal with the paperwork generated by the LSC. This means that this has to be done by fee earning staff.

Moving the goalposts

The Carter review and changes currently being implemented represent a particular challenge to rural firms. The goalposts continue to move. Over the past 11 years, solicitors were forced out of social welfare work as this was to be done by the not-for-profit sector. The trend was for firms to specialise in particular areas of work and to come out of areas where they did not have sufficient expertise or where the rates of pay were set at a level that it became uneconomic to do the work. As a result many firms reduced their areas of practice and to a large extent welfare benefits, debt and housing were dealt with by advice agencies and the Citizens Advice Bureau.

We are now being told that there should be a 'one-stop' shop where we can advise clients holistically on all their needs. It is clear that the vision of Lord Carter and the LSC is for larger firms practicing economies of scale. This is not the reality in rural areas. Research has shown that the average firm in rural Wales is very small and that where firms do legal aid work, this tends to be in the core areas such as family and crime. There is no possibility of small rural practices being able to offer the same breadth of legal aid as a large urban practice. Representations have been made to the LSC in relation to the need to consider rural areas separately.

Impact of Carter

At the consultation session that I attended in relation to the Carter proposals, many firms protested about the new fixed fees and the effect that this would have on their practices. All firms who made representations at the meeting felt that their fee income would significantly reduce although assurances were given that proposals were cost neutral. In rural Wales, we are not talking about 'fat cat' lawyers but local solicitors who are doing their best to deliver access to justice in their local community. Many firms are talking about coming out of legal aid although both the government and LSC deny that this is happening in any great numbers. A few firms coming out of legal aid in rural areas, however, has a much greater effect than losing a few firms in an urban area.

Individuals, wherever they live, should be able to access good-quality legal advice on all areas of law including those where legal aid is still available. It is not clear what the LSC or government are doing to make sure that this is a reality in rural areas. The research carried out in Wales suggests that more and more firms will come out of publicly funded work and that rural practices in some communities will disappear.

The challenges and differences of providing legal advice in rural areas need to be acknowledged. Proposals and regulations need to be adapted to recognise the differences between urban and rural areas. The government talks about equality and the need for people to be able to enforce their human rights. However, changes in legal aid are promoting inequality in legal services between urban and rural areas and removing the ability of many people in rural areas to enforce their rights.