In the interests of clients or commerce? legal aid, supply, demand, and 'Ethical Indeterminacy' in criminal defence work

Journal of Law and Society

Volumn 34, Issue 4, 2007, Pages 489-519

  Tata, Cyrus ^a  

^a UNIVERSITY OF STRATHCLYDE   (United Kingdom)

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EID: 36549048338     PISSN: 0263323X     EISSN: 14676478     Source Type: Journal    
DOI: 10.1111/j.1467-6478.2007.00402.x     Document Type: Article

References (161)

1. The notion of putting the client's interest before one's own is crucial to professional claims and the key distinction from commerce. 'Professionalism, is not concerned with self-interest, but with the welfare of the client': T.H. Marshall, 'The Recent History of Professionalism in Relation to Social Structure and Social Policy' (1939) 5 Cnd. J. of Economics and Political Science 325-40,
2. cited by G. Munhgam and P.A. Thomas, 'Solicitors and Clients: Altruism, or Self-interest?' in The Sociology of the Professions, eds. R. Dingwall and P. Lewis (1983) 130-51, at 136.
3. See for example: A. Blumberg, Criminal Justice (1967); J. Baldwin and M. McConville, Negotiated Justice (1977);
4. A. Bottoms and J. McCleen, Defendants in the Criminal Process (1976);
5. M. McConville, J. Hodgson, L. Bridges, A. Pevlovic, Standing Accused (1994);
6. T. Goriely, P. McCrone, P. Duff, C. Tata, A. Henry, M. Knapp, B. Lancaster, A. Sherr, The Public Defence Solicitors ' Office: An Independent Evaluation (2001);
7. C. Tata, T. Goriely, P. Duff, A. Henry, P. McCrone, M. Knapp, 'Does Mode of Delivery Make a Difference to Criminal Case Outcomes and Client Satisfaction?' (2004) 50 Crim. Law Rev. 120-35;
8. R. Ericson and P. Baranek, The Ordering of Justice (1982);
9. A. Mulcahy, 'The Justifications of "Justice"' (1994) 34 Brit. J. of Crim. 411-30;
10. D. Rosenthal, Lawyers and Clients - Who's in Charge? (1974);
11. A. Sarat and W., Felstiner, Divorce Lawyers and their Clients (1.995);
12. C. Smart, The Ties that Bind (1984);
13. L. Mather, C. McEwen, R. Maimen, Divorce Lawyers at Work (2001);
14. L. Mather, Plea Bargaining or Trial? (1979);
15. R. Flemming, 'Client Games' (1986) 11 Am. Bar Foundation Research J. 253-77.
16. G. Bevan, 'Has there been supplier-induced demand for legal aid?' (1996) 15 Civil Justice Q. 98-114;
17. A. McGuire, J. Henderson, G. Mooney, The Economics of Health Care (1998);
18. A. Gray, P. Fenn, N. Rickman, An Empirical Analysis of Standard Fees in Magistrates' Court Cases (1999a);
19. A. Gray, P. Fenn, N. Rickman, 'Controlling Lawyers Costs through Standard Fees: an economic analysis' in Access to Criminal Justice, eds. D. Wall and R. Young (1999b) 192-216;
20. A. Gray, N. Rickman, P. Fenn, 'Professional autonomy and the cost of legal aid' (1999c) 51 Oxford Economic Papers 545-58;
21. A. Grey, 'The Reform of Legal Aid' (1994) 10 Oxford Rev. of Economic Policy 51-67. Although Bevan's analysis did not concentrate on criminal defence work, it has nonetheless been used by governments in their search for answers to the causes of growth in criminal legal aid expenditure.
22. An itemized billing system in which the cost of the lawyer's work is based on the types of work conducted and the amount of time spent.
23. Summary criminal defence work is carried out by the solicitor branch of the legal profession.
24. This is not to suggest that finance should be seen as the only or main influence on lawyer advice and behaviour. Rather, it may be seen as one influence among several: lawyers rely on a range of forms of capital - financial, social, and cultural.
25. D. Wall, 'Legal Aid, Social Policy, and the Architecture of Criminal Justice' (1996) 23 J. of Law and Society 649-69, at 652-3.
26. E. Cape and R. Moorhead, Demand-induced Supply? Identifying Cost Drivers in Criminal Defence Work: Report to the Legal Services Commission (2005) 9.
27. See, also, L. Bridges, The Myth of Case Splitting, unpublished paper (2001).
28. See, for example, Mungham and Thomas, op. cit., n. 1; Z. Bankowski and G. Mungham, Images of Law (1976);
29. P. Carlen, Magistrates' Justice (1976);
30. Baldwin and McConville, op. cit., n. 2;
31. McConville et al., op. cit., n. 2.
32. H. Sommerlad, 'Some Refelections on the Relationship between Citizenship, Access to Justice, and the Reform of Legal Aid' (2004) 31 J. of Law and Society 345-68.
33. Bevan, op. cit., n. 3, at p. 102
34. id., at p. 103.
35. E. Blankenberg, 'Comparing Legal Aid Systems in Europe' (1992) 11 Civil Justice Q. at 176.
36. E. Samuel, 'Criminal Legal Aid Expenditure: Supplier or System Driven?' in Access to Criminal Justice, eds. R. Young and D. Wall (1996) 217-53.
37. Cape and Moorhead, op. cit., n. 8, at p. 70
38. id.;
39. Bridges, op. cit., n. 8;
40. Wall, op. cit., n. 7.
41. Samuel, op. cit., n. 13, at p. 227
42. See, for example, articles in the recent 2006 special issue of Legal Ethics: E. Cape and J. Webb, 'Editorial: The Ethics of Criminal Justice Professionals in an Era of change', 1-5;
43. L. Bridges, 'The Ethics of Representation on Guilty Pleas', 80-100;
44. E. Cape, 'Rebalancing Criminal Justice Process: ethical challenges for criminal defence lawyers', 56-79, all in (2006) 9 Legal Ethics.
45. L. Mather, R. Maiman, C. McEwen, '"The Passenger Decides on the Destination and I Decide on the Route": Are Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286-310, at 7-11.
46. Despite the recent introduction of public defence solicitor offices in Scotland, the vast majority of defence work is conducted by solicitors working in private firms which are paid for work on those individual cases by the Scottish Legal Aid Board (that is, at the time of writing (2007), there is no block contracting).
47. Goriely et al., op. cit., n. 2.
48. id.;
49. Tata et al., op. cit., n. 2.
50. See, for example: Blumberg, op. cit., n. 2;
51. Baldwin and McConville, op. cit., n. 2;
52. McConville et al., op. cit., n, 2;
53. Ericson and Baranek, op. cit., n, 2;
54. Mulcahy, op. cit., n. 2;
55. Flemming, op. cit., n. 2.
56. For example, M. Travers, Persuading the Client to Plead Guilty (1992).
57. See, also, in this vein (but in the context of plea-negotiation), Mulcahy, op. cit., n. 2;
58. S. Roach Anleu and K, Mack, 'Pleading Guilty and Professional Relations in Australia (2001) 22 Justice System J. 155-84.
59. See, in this regard, about lawyers more generally, especially in respect of civil work, T. Goriely, 'Debating the quality of legal services' (1994) 1 International J. of the Legal Profession 159-72.
60. Here my thinking has been influenced by the rich literature on the sociology of professions; also, by research and long-standing debates in criminal justice and process, most particularly plea bergaining.
61. In a smiliar vein, Mather et al, op. cit., n. 19, at p. 307 observe from their interviews with divorce lawyers:
62. Lawyers describe an array of tactics ... that they use to influence their clients' decisions. Invariably, such tactics are invoked 'for the client's good', since the attorney knows from experience that an unreasonable client can harm himself, his former spouse, and his children. But the lawyer also knows that by representing unreasonable clients one can gain e reputation for being an unreasonable lawyer.
63. For example, Marshall, op. cit., n. 1.
64. In certain respects this perspective is compatible with the early attempts to fix and standardize conceptions of 'quality' in legal services. As we shall see, those who proposed and justify the imposition of fixed payments have drawn on other perspectives of quality in combination with 'bureaucratic-efficiency'.
65. D. McBarnet, Conviction (1981).
66. For example, as advocated by Rosenthal, op. cit., n. 2.
67. Roach Anleu and Mack, op. cit., n. 25.
68. Scotland has a separate system of criminal lew and procedure from that of England and Wales, with appeals being heard by the Court of Criminal Appeal in Edinburgh (there is no appeal in criminal cases to the House of Lords). The legal profession of Scotland is separate from that of England and Wales, as is the independent prosecution service - Crown Office and Procurator Fiscal Service (COPFS).
69. Legal Aid (Scotland) Act 1986 s. 24(3).
70. In Scotland there are two types of courts hearing summary matters. The Sheriff Courts (presided over by sheriffs who are professional lawyers by background) and hear both solemn, (jury-triable) and summary (non-jury-triable) cases. The District Courts are largely presided over by ley justices (although in Glasgow they are presided over by stipendiary magistrates and have the same sentencing powers as the summary sheriff courts) and hear summary cases only. Unlike England and Wales, the accused person has no right to elect for jury trial. Sheriffs (including Glasgow District stipeniary magistrates who have effectively the same powers as sheriffs) hear more than three-quarters of all criminal cases in Scotland.
71. See Goriely et al., op. cit., n. 2,
72. T. Goriely, C. Tata, and A. Paterson, Expenditure on Criminal Legal Aid: report of a Comparative Pilot Study of Scotland, the Netherlands, and England and Wales (1997);
73. F. Stephen, Legal Aid Expenditure in Scotland: Growth, Causes, and Alternatives (1998);
74. C. Tata, 'Comparing Legal Aid Spending: the Promise and Perils of Jurisdiction-centred Approach to International Legal Aid Research' in The Transformation of Legal Aid, eds. F. Regan, A. Paterson, T, Goriely, D. Fleming (1999);
75. F. Stephen, 'Reform of Legal Aid in Scotland' (2001) 8 Hume Papers on Public Policy 23;
76. Tata et al., op. cit., n. 2.
77. An itemized billing system, in which the cost of the lawyer's work is based on the types of work conducted and the amount of time spent.
78. For example, in the Sheriff Court £100 for the first day of trial a further £200 for the second day.
79. 'Accused person' is the equivalent term in Scotland for 'defendant'.
80. An immediate plea of guilty (the equivalent of 'category 1' in standard fees) cannot be dealt with under summary legal aid (fixed payment), but through 'advice by way of representation' (ABWOR), where the solicitor is paid £70 for all work up to the first appearance and up to £150 if e subsequent diet is set
81. Gray et al., op. cit. (1999a; 1999b), n. 3.
82. Bridges, op. cit., n. 8.
83. Following challenges to the legality of the fixed payments system, in June 2002 this simple system of fixed payments was amended to allow for unusually complex and difficult cases (known as 'exceptional cases') to receive payment under time and line. The determination of what an exceptional case is made by SLAB, which reported in 2004 that it granted only 28 applications out of 158 applications for time and line on the basis of an 'exceptional case': SLAB, Proposals for the Review of Summary Criminal Legal Assistance (2004) at para. 3.34.
84. 'Swings and roundabouts' is also central to the logic of the Carter Review in England and Wales. See, for example, House of Commons Constitutional Affairs Committee (2007) Implementation of the Carter Review of Legal Aid: Third Report of Session 2006-7 vol. II, Q55-70
85. See, also, SLAB, op. cit., n. 44, para. 3.33.
86. The term 'precognition' is explained below.
87. This shift parallels responsibilization strategies detected in other fields: see D. Garland, The Culture of Control (2001).
88. F. Stephen and C. Tata, Impact of the Introduction of Fixed Payments into Summary Legal Aid: Report of an Independent Study (2007). The study was commissioned by the Scottish Executive and ran from December 2003 to January 2005 which was followed by submission of the research report. The report was eventually released and published by the Scottish Executive in August 2007.
89. All defence solicitors referred to were actively engaged in summary criminal legal aid.
90. Scotland has a distinct prosecution, service. Summary cases are prosecuted by Procurators Fiscal and their Deputes - colloquially known as 'depute fiscals' or 'fiscals'.
91. Full details on qualitative and quantitative methods ere provided in Stephen, and Tata, op. cit., n. 49.
92. The research tested for whether there had been, overall, a major shift in cases to the Sheriff Courts from the District Courts. It found that there has not been any statistically significant change.
93. See Stephen and Tata, op. cit., n. 49.
94. The average figures in Table 1 obscure large differences between firms, because of the varying degree of involvement of different firms in summary legal, aid. Further analysis was conducted to explore these differences and is available in Stephen and Tata, id.
95. Here the term 'client contact' refers not only to face-to-face meetings (including with persons held on remand), but also written correspondence, telephone correspondence, and so on.
96. Due to rounding, percentages may not add up exactly to 100.
97. The 'don't know' category excludes two respondents who declined to answer the question in any way about their own practices but did in relation to their observations of other solicitors' contact levels.
98. D. Christie and S. Moody, The Work of Precognition Agents in Criminal Cases (1999) at 9.
99. id.
100. Despite two important decisions of the Privy Council and also a memorandum issued by Crown Office directing prosecutors to systematic early disclosure, the practice of early disclosure remains patchy.
101. See C. Tata and F. Stephen, 'When Paying the Piper Gets the "Wrong" Tune' in. Transforming Lives, eds. P. Pleasence et al. (2007).
102. Precognition officers/agents are employed by solicitors to take precognitions.
103. See, for example: Mather, op. cit., n. 2;
104. Flemming, op. cit., n. 2; Blumberg, op. cit., n. 2;
105. Baldwin and McConville, op. cit., n. 2;
106. Bottoms and McClean, op. cit., n. 2;
107. McConville et al., op. cit., n. 2;
108. Goriely et al., op. cit., n. 2;
109. Tata et al, op. cit., n. 2;
110. Ericson and Baranek, op. cit., n. 2 ;
111. Mulcahy, op. cit., n. 2;
112. Carlen, op. cit., n. 9.
113. Rosenthal, op. cit.,
114. Sarat and Felstner, op. cit.,
115. Smart, op. cit.,
116. Mather et al., op. cit., ail in n. 2.
117. A Research Advisory Group was established by the Scottish Executive Justice Department to oversee and advise the research it wished to commission.The group was chaired by a senior official in the Justice Department and consisted of representatives of: the Justice Depertment, the academic research team, SLAB, COPFS, the Law Society, Scotland's criminal bar associations, the judiciary, and two independent academic experts who are highly experienced in. the conduct of the kind of research that was to be undertake (Professors Peter Duff and Roger Bowles).
118. Goriely et al., op. cit., n. 2;
119. C Tata, 'Transformation, Resistance, and Legitimacy: the menace of "innocent guilty pleas"'(2007), paper presented to the Law and Society Association annual conference, Berlin.
120. See, for example, R. Moorhead, A. Sherr, A. Paterson, 'Contesting Professionelism' (2003) 37 Law & Society Rev. 765-808.
121. Sherr et el. succinctly put it: '[T]he client's views on. quality are invaluable but inherently limited' (A. Sherr, R. Moorhead, A. Paterson, 'Whet Clients Know' (1994) 10 International J. of the Legal Profession 5-35.
122. See, also (albeit with a different argument on outcomes and processes from Sherr et al.), P. Sanderson and H. Sommerlad, 'Exploring the Limits to the Standardization of the Expert Knowledge of Lawyers' (2002) 52 Syracuse Law Rev. 987-1016.
123. Percentages may not add up to 100 due to rounding.
124. The 'don't know' category excludes two respondents who declined to answer the question in any way about their own practices, but did so in relation to their observations of other solicitors.
125. Goriely et al., n. 2;
126. Tata et al., n. 2
127. The research investigated whether during the period 1997-2003 there had been major changes of policy or practice in summary procedure; patterns of cases being brought and prosecuted through the summary courts. The only one which appears to have had a major overall impact was the introduction of mandatory intermediate diets which is discussed later. Various other possible hypotheses were proposed by members of the research advisory group to see whether they may have instead caused any changes in the patterns of case trajectories. These included: the introduction of statutory racial aggravation; human rights challenges; the increased use of prosecutor fines and other forms of diversion from prosecution; transfer of cases from the Sheriff to the District Courts or different case mixes. Most appeared to have had relatively negligible impact overall and none would appear to have had a major impact. For further explanation of the investigation of these hypotheses,
128. see Stephen and Tata, op. cit., n. 49.
129. These percentages in Table 4 are not simple arithmetic averages but are estimates derived from, statistical analysis which aimed to take control for extraneous differences between individual courts (for example, prosecution practices). For a detailed discussion of the statistical method see id., App. C.
130. The analysis takes account of the statistical impact of mendatory intermediate diets from, their introduction until 2002/3.
131. Statistically, the impact of the introductions of mandatory intermediate diets and of fixed payments were isolated from each other so as to measure any the impact separately. The results show unambiguously that the introduction of both fixed payments and intermediate diets has in themselves (as well as in combination) had e significant impact on case trajectories. Detailed analysis is given in Stephen, and Tata, op. cit., n. 49, especially App. C.
132. See, also, Samuel, op. cit., n. 13;
133. Goriely et el, op. cit., n. 2;
134. Tata et al., op. cit., n. 2.
135. This may be attributable to the introduction of mandatory intermediate diets. See Stephen and Tata, op. cit., n. 49, for separate analyses of the effects of mandatory intermediate diets and fixed payments.
136. For example, see accounts reported in P. Pleasence and H. Quirk, The Criminal Case Profiling Study (2001).
137. Goriely et al., op. cit., n. 2.
138. Indeed, prosecution interviews for the fixed payments research indicated an awareness of routine 'over-charging' until the fiscal had a chance to examine the evidence more closely just before trial.
139. Goriely et al., op. cit., n. 2, pp. 97-8.
140. Note that these figures largely pre-date the position of the Court of Criminal Appeal from October 2003 onwards (in Du Plooy v. HM Advocate) that sentencers should state openly whether or not they are giving a discount for an early guilty plea and the extent of any such discount. However, there is no clear evidence to show whether or not the case law has actually led to a more widespread practice of discounting for an early guilty plea than before, or, simply to a greater degree of transparency,
141. See, also, F. Leverick, 'Making Sense of Sentence Discounting' (2003) Scots Law Times 267-71.
142. Research comparing samples of similar cases in the period found that there did not appear to have been any widespread practice of guilty plea discounting, although interviews with accused persons suggested that the expectation of a near automatic discount was widespread. Accused persons may, therefore, have pled guilty partly in the mistaken expectation of a discount (Tata et al., op. cit., n. 2).
143. Du Plooy (Devonne) v, HM Advocate (no. I) 2003 S.C.C.R. 443.
144. This and other research (Tata, op. cit., n. 66) found that sentencers interpret Du Plooy in distinctly different, ways.
145. 'Sheriff- (or judge-) shopping' is the tactical practice of attempting to choose (or 'shop around' for) a more favourable sentencer by, for example, seeking an adjournment.
146. C. Tata, 'Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision Process' (2007) 16 Social & Legal Studies 425-47.
147. This helps to explain why, although the fixed payments environment has brought about significant change, one should not expect to see complete change even where there is e radical change in payment structures. Guilty plee practices, for instance, are driven by e range of synergistic influences - not simply nor mainly financial.
148. A. McGuire et al., The Economics of Health Care (1998), emphasis added,
149. quoted in Bevan, op. cit., n. 3, p. 1.04.
150. Likewise, Gray et al., op. cit. (1999c), n. 3, p. 547 argue that lewyers 'manipulate ... the amount of work done ... independently of the case requirements.'
151. Bevan, id., fleetingly recognizes the intractable difficulty of identifying real demand: 'The comparison is thus of an actual with an unattainable ideal.' However, this does not preclude an analysis which advances that thesis. Bevan's position notwithstanding, my point is that the supplier-induced demand thesis necessitates some sort of conception of 'real' demand.
152. For example, L. Burzotte Nilson, 'An Application of the Occupational Uncertainty Principle to the Professions' (1979) 26 Social Problems 570-81.
153. Cape and Moorhead, op. cit., n. 8, at p. 9.
154. See, also, Bridges, op. cit., n. 8.
155. This does not discount the fact that individual authors who have advocated either thesis might also advance a less essentialist position. Rather, my purpose here is to concentrate on the idea which is inherently fundamental to supply/demand theses.
156. For example, Stephen, op. cit., n. 37, pp. 23-41;
157. N. Garoupa, 'The Theory of Optimal Law Enforcement' (1997) 11 J. of Economic Surveys 267-95.
158. Mather et al., op. cit., n. 1.9, at p. 307;
159. P. Tague, 'Barristers' Selfish Reasons in Counselling Defendants over the Choice of Plea' (2007) 53 Crim. Law Rev. 3-23.
160. For example, in an oft-cited paper (M. Cain 'The General Practice Lawyer and the Client' (1979) 7 International J. of the Sociology of Law 331-54), Cain's account of her findings emphasizes the clarity and specificity of clients' objectives: clients in her sample generally knew what they wanted. She makes a simple distinction between meens end ends: 'Clients do know and are entitled to know what they want; a good lawyer will achieve an exact translation of this in another discursive realm ... [M]ost clients tell their solicitor what they want and he sets about getting for them' (at 340, original emphasis). In Cain's account, clients know their 'destination' and the lawyer (as 'translator') works out the most effective route. However, while it may be importent to emphasize, as Cain has done, that lawyers do not simply bully their clients (and in this way facilitate repressive social relations in more insidious ways than supposed by a simple lawyer domination model), a neat division between objective (or destination) and method (or route) has seemed more blurred in other research with civil clients. 'In contrast to the neat division of labour ... most of the [divorce] lawyers we interviewed described how they attempted to influence both the route and the destination, of their clients' cases' (Mather et al., op. cit.,n. 19 at p. 287, original emphasis reteined). In the fixed peyments research and elso in contemporaneous research on the process report writing, clients demonstrated little of the certainty and clarity of Cain's civil clients. Indeed the ephemeral character of many defendants' objectives are nicely illustrated by a passing remark by Cain (p. 346) describing (approvingly) a lawyer who 'accepted the client's wish to "get off" as his objective'). But what does it mean to 'get off'? Achieving a favourable result for sure, but what exactly? A reduced charge? A sentence discount for e guilty plea? An effective plea in mitigation? Complete acquittal? Adjournment? What is deemed to be favourable by the client ('get off) can only be understood in terms of clients' (managed) expectations.
161. See, also, Tate, op. cit., n. 66.