Independent legal representation and the victims, witnesses, and justice reform (Scotland) bill: A review of potential models of delivery

Chapter 8: Models of Delivery and Funding

Key points

• Across the jurisdictions studied, the key distinction was whether ILR was delivered by way of salaried or private practice lawyers. Both models have distinct advantages and disadvantages.
• The advantages of a salaried model include the development of expertise in relation to service provision; easier integration of principles of trauma-informed practice; a single point of contact for clients; mutual support amongst lawyers providing the service; greater ease of monitoring and evaluation; and potential benchmarking of rates of pay. Disadvantages might include low rates of pay; capacity issues; and conflicts of interest around cases, especially where services were situated within legal aid. A salaried model will usually require some degree of ad hoc private provision to deal with conflicts of interest, a need for specialist expertise, or unexpected capacity issues.
• The key advantage of a private practice model is flexibility and with that a minimisation of burnout and the risk of vicarious trauma. Reaching more remote geographic areas is also a potential advantage. Disadvantages include insufficient time to spend with traumatised clients to build trust, inability to develop specialist expertise, difficulties in finding roster or panel lawyers at short notice, conflicts of interest, and the challenge of monitoring the quality of casework.
• Interviewees tended to observe a greater number of advantages and fewer disadvantages with the salaried model. In addition, the disadvantages of the salaried model were seen as more easily addressed compared to those of the private practice model. The risk of burnout can be lessened through allocating resource and time to peer support, the provision of breaks and reflective supervision. Capacity and conflict of interest issues can be addressed by having additional provision by way of an ad hoc panel of lawyers. The most significant disadvantages of the private practice model relate to difficulties in developing specialist expertise and embedding trauma-informed approaches. These are not impossible to address, but the constraints of private practice make it harder to do so.
• In both jurisdictions that operated a private practice model, interviewees told us that if they could start again and design their system from scratch, they would choose a salaried model.
• Regardless of the model, key issues include rates of pay and conditions and (in a salaried model) grants being for sufficient lengths of time to prevent insecure employment and facilitate the development of trauma-informed approaches, specialist expertise and reflective practice skills.

8.1 Introduction

This chapter analyses different models of ILR delivery across the jurisdictions studied with a focus on funding and structure of service provision. It sets out the advantages and disadvantages of the two broad models of provision (the salaried and private practice models) respectively. It also considers findings in relation to the importance of specialist expertise for the provision of ILR and related issues of pay and retention of lawyers.

8.2 Summary of models of delivery and funding

Several different models of delivery and associated models of funding can be delineated across the jurisdictions studied, as discussed in chapter three. The main distinction we observed across these models was whether ILR is provided by way of salaried lawyers working within organisations or a private practice/judicare model where lawyers work on a case-by-case basis administered by the relevant legal aid agency.^[481] Private practice models tended to operate by way of a panel or roster system where lawyers are selected and trained to provide the service as part of their wider legal practice in criminal and/or areas of civil law.

Table 8.1 below sets out the respective models in each of the jurisdictions studied. It also identifies ‘hybrid’ salaried models that have some funding available to assign cases to other lawyers on a legal aid funded case-by-case basis. In several of the models studied, this is considered necessary in case there is a conflict of interest, or where specialist expertise is needed, or advocacy (rights of audience) may not otherwise be available within the salaried service. We note that almost all salaried lawyer models have a hybrid system in place with some models being more reliant on private practice lawyers than others. As we have outlined in chapter 5, the requisite rights of audience for those appearing in the court within which ILR is to be provided and legal cultural norms about the standard of representation expected play a factor in this context.

Table 8.1 also identifies whether salaried services are in a not-for-profit setting, for example, a law centre, victim support or gender-based violence service. It should be noted that table 8.1 summarises data gathered from our interviews and where interviewees have been able to provide details these are only estimates and not otherwise easily verifiable from publicly available sources. Likewise, given that some jurisdictions have pilot models developing at fast pace, information may have been subject to change since the time of interview.

Each salaried service operates with either three or four full-time equivalent lawyers. As discussed in chapter three, in some salaried models (Victoria and Queensland) there is some overlap between ILA and ILR provision. In others, there is provision of ILA only (England and Wales), or there is provision only of ILA with very limited ILR (usually by written submissions) (Northern Ireland). We note that the models that seem closest to what is envisaged for ILR at section 275 hearings by the Victims, Witnesses, and Justice Reform (Scotland) Bill are those in Ireland and in New South Wales. The former operates on a hybrid model but one which relies heavily on private practice lawyers; and the latter operates on a salaried basis with ad hoc support from legal aid panel lawyers.

Table 8.1: Models of ILR in comparator jurisdictions

Jurisdiction	Salaried model	Located in third sector organisation	Located in legal aid	Ad hoc legal aid panel of solicitors/ counsel	Private practice/ panel lawyers
Australia – Victoria	✔	✔	✔	✔	X
Australia - Queensland	✔	✔	✔	✔	X
Australia – NSW	✔	X	✔	✔	X
Canada	X	X	X	X	✔
England and Wales (ILA)	✔	✔	X	X	X
Ireland	✔	X	✔	X	✔
Northern Ireland (ILA)	✔	✔	X	✔	X

In Ireland, civil legal aid solicitors work in one of 32 law centres across the country and instruct counsel for court appearances. Barristers are appointed to a panel so they are eligible to undertake a variety of work for the legal aid board, and receive training in that context. They carry out all of the required court work. By contrast, in Northern Ireland (which has primarily an ILA model at present), three solicitors work within Victim Support NI providing ILA and some ad hoc (paper-based) ILR. They have a small allocation of funding (approximately £55k) to draw down as needed for counsel’s advice or representation in court, but no funds had been spent at the time of writing.

The Australian models we studied provide useful illustrative examples of the hybrid approach. In Victoria, three salaried lawyers work in two practice sites: Victoria Legal Aid (one lawyer) and the Women’s Legal Service (two lawyers). The Queensland Service has four salaried lawyers in two practice sites: Queensland Legal Aid (two lawyers) and Queensland Women’s Legal Service (two lawyers). Queensland relies on these salaried lawyers for most hearings, but instructs out to private practice lawyers as needed. Again, this is considered especially important as an available option if there is a conflict of interest. In New South Wales three salaried lawyers work within the Sexual Assault Communications Privilege Service (SACPS), which is part of Legal Aid New South Wales. A panel of legal aid lawyers provides support to SACPS as needed on an ad hoc basis.

The Canadian model, like Ireland, operates predominantly via panel or ‘roster’ lawyers instructed on a case-by-case basis. The funding (for both ILA and ILR) comes from a mix of federal and provincial funds. As one interviewee commented in relation to the funding of this model:

[W]hat [the Federal Government] provide is enhanced funding. So that’s, kind of, the language we put in because the provinces and territories themselves provide a budget through their annual budget to support those victim services. We come in and enhance or increase funding on certain initiatives … one of those … components is support for victims of sexual violence, which includes our initiative on independent legal advice and legal representation for victims of sexual assault and intimate partner violence.^[482]

In Nova Scotia, there is provision for both ILA and ILR. The provision of ILR is through the Sexual Offence Legal Representation Program (SOLR). There, ILA and ILR are separate programmes, both delivered via a roster of private practice lawyers. Likewise, in British Columbia, both ILA and ILR are delivered but for funding purposes the programmes are considered quite separate. ILA is delivered by two salaried lawyers in a not-for-profit organisation whereas ILR is managed out of Criminal Law Services and Legal Aid British Columbia, which uses a roster of private practice lawyers.

The three Australian jurisdictions we examined, although operating a salaried model, also relied on a panel of ad hoc private practitioners to deal with conflict or capacity issues. Several Australian interviewees commented in relation to the fixed payment that applied to panel lawyers:

They’re a fixed amount and [there’s] basically a bucket of funds that then the lawyer will then invoice for whatever they’ve done. They’ve got a fair bit of discretion about what they do. The bucket’s not particularly big, I think it’s like two [client] conferences, a half-day prep and a half-day court time. So that’s not a lot, it's probably … I think in total, it works out to be about 1,200 dollars, Australian dollars ... They can get extensions for more if necessary. And sometimes these do drag on.^[483]

So, for barristers, they’ve got fixed fee appearances, and they’ve also got funding for preparation. Our grants model, we don’t have specific grants of aid that have criteria for these matters, but we’ve worked with grants to have, kind of, an agreement about what they’ll do. That’s on the dream list is to have specific … criteria for what additional prep we’re giving them … And same with our preferred suppliers have that as well. Solicitors only have an initial preparation grant and then appearance grants. We’re working on getting them an additional preparation [grant] as well. It hasn’t really come up that much, but it would be good to have.^[484]

8.3 Salaried model: advantages and disadvantages

As outlined above, most of the models studied deliver ILR through salaried lawyers. This was seen by interviewees as having a number of key advantages. The first was that, compared to the private practice model, it more easily affords the opportunity for specialism and a “concentration of expertise”:^[485]

I think the key there is specialism. So, we’ve developed and built up a specialism.^[486]

You need someone that can focus on it because it’s very different … it’s very, I don’t want to use the word, but niche. And so, you can’t dip your toe in and do one of these matters, you have to be able to spend a lot of time in it.^[487]

The specialisation aspect is definitely needed and the experience and the training.^[488]

Relatedly, having some background experience of criminal law was deemed important:

The issue is that then we have people that aren’t criminal law solicitors getting their heads around a criminal law process. So, I think that it requires … I think you can’t … it’s very difficult to find someone that can come into the role and pick it up running, they have to have been taught by someone.^[489]

Specialism and expertise were prevalent themes in relation to the perceived advantage of a salaried service. It is worth noting that across the data collection, this was a theme that weighed heavily in favour of the salaried model, even for those working in a private practice model. For example, in Ireland, an interviewee reflected that if they had the choice they would go back and create the scheme again with a standalone salaried unit delivering ILR, as in the Australian models, rather than situating the advice provision in more general law centres which cover a wide range of mainly civil work:

I would build an experienced unit with two solicitors. Two solicitors, three legal clerks, just doing this type of work, particularly for Dublin, where the vast majority of cases are [located]. You could support the more regional cases as they arise and build up that bank of knowledge and experience in it. Because I’m conscious that our aid … our advice is going to expand and potentially explode. So, I really think we need to build … an ideal scenario, we will build a wealth of experience and then that could flow out.^[490]

Similarly, an interviewee also observed that a benefit of the salaried model was the extent to which it can build capacity in the sector. Even where lawyers might leave the service, they take valuable experience to other roles in related fields of legal aid or not-for-profit legal sector.^[491]

A second key advantage of the salaried model that was identified by participants was that, compared to a private practice model, it is easier to incorporate principles of trauma-informed practice. Chapter 7 discussed the importance of trauma-informed practice to the provision of an ILR service for sexual offence complainers. Four principles of trauma-informed practice were identified: adequate time to build the trust and confidence of complainers; conveying information in ways that are alive to the impacts of trauma; bespoke training and ongoing reflective practice drawing upon multidisciplinary expertise; and managing expectations about the limitations and extent of the provision of ILR. It is the first of these in particular that is easier to deliver in a salaried model. Interviewees saw the salaried model as more easily providing a single point of contact for clients and more time and flexibility in the caseload to offer support:

In private practice you are watching the clock constantly, you’re recording every six minutes of your day. Whereas actually, a trauma-informed, empathetic approach that we have to take to deliver the service properly, there needs to be a degree of open-endedness to that ... if you need to give up a day to someone, you need to tune into their case, you can do that, there’s the flexibility to do that, which you just wouldn’t have where there’s a profit motive and get them in, get them out, stack them high … And I think that’s the big difference.^[492]

And then it’s really about minimising a case changing hands, having as much as we can a single point of contact for that victim.^[493]

So having someone there that they’ve met before, that they know, that they’ve got as a point of contact, I mean, that’s invaluable.^[494]

As noted above, some of the salaried models we examined located the lawyers providing ILR within third sector organisations, such as victim support services. This can further help to minimise complainer re-traumatisation because of the availability of other support services. For example, for those models situated within victim support services it is easier to access other support such as advocacy or advice on compensation.^[495] Other examples of legal information and/or advice that complainers might be easily referred for include support with applying for non-harassment or restraining orders, family law matters, immigration and issues related to complainers themselves being in the criminal justice system.^[496] Additional funding for these wider services comes from philanthropic sources and/or legal aid.^[497] Some models in not-for-profit organisations have also established pop-up clinics in other community-based organisations.^[498]

For several Australian ILR providers, being located in the not-for-profit sector means that they can extend their support to the provision of social services:

So, we committed to being involved in the [ILR service] and we would provide the social work system within our existing resources where we could, we would capture and monitor that. But we were very clear that to continue on, they need to really consider the non-legal supports that women will need.^[499]

If I realise during that session that this person has no supports around them, they are at risk of homelessness or they have, you know, a mental health condition that is really being exacerbated right now, I can say to them, we have a social worker, do you want to work with the social worker?^[500]

A third advantage of the salaried model – identified by policymakers – was the level of cost control it affords, as well as making it easier to monitor and evaluate:

So, we use that [model] … so we can have control of the cost. We did look at other models, but they were … going to be wildly more expensive. We didn’t have the control. We didn’t have the ability to get the feedback from the models.^[501]

Another advantage for those models situated within existing legal aid provision is the opportunity to rely on networks of legal aid lawyers in other regions for aspects of casework, which might be especially helpful when trying to coordinate a service across a wide geographic area:

So, because Legal Aid has offices everywhere, we can also draw on that somebody from one of those local offices can go down to the court, scan documents and email them to us, for example. But you can get a local agent to do that, you just have to fund it.^[502]

Situating ILR within existing organisations also brings the advantage of being able to rely upon the wider infrastructure of those organisations. This administrative and technical support was seen as particularly useful as compared to a judicare model:

I guess if you’re working within a larger organisation, then you’re drawing from a general pool of things like admin support, tech support, services like printing, and so on and so forth. A lot of lawyers struggle with things like that. Because, I mean, if you give a private lawyer a matter and they suddenly have to print 2,000 pages worth of stuff, they’ve got a problem, you know … they’re going to struggle to get reimbursed by Legal Aid for their expenses to print that much stuff.^[503]

A final perceived advantage that was mentioned was that rates of pay can be benchmarked.^[504] This can be attractive in terms of job security as compared to private criminal defence practice.^[505] Across the jurisdictions studied, a benchmarking exercise could be set against civil service rates of pay or equivalent salaries in the not-for-profit legal sector:

So, the starting salary was, sort of, benchmarked against what an equivalent Civil Service group would be. But we do allow for an increase every year in the salary but it wouldn’t be in line with cost of living or things like that. It wouldn’t be tied to the Civil Service pay grades either.^[506]

My salary at least, my understanding is that it’s just benchmarked to [other employees of the organisation I work for]. So, whatever another lawyer of my seniority in [the organisation] gets paid, that’s what I get paid.^[507]

With respect to disadvantages of the salaried model, one is that there may be a higher likelihood of burnout and risk of vicarious trauma. This risk was discussed in chapter 7, where the research evidence on this topic was outlined. To mitigate this risk, there is a need to ensure that resource and time are allocated to peer support, the provision of breaks and reflective supervision.

An interviewee commented that the salaried model also means that lawyers tend to be working exclusively on sexual violence cases and a “combination of work types” might be more helpful in providing variety and minimising burnout.^[508] This was also raised as an issue in terms of capacity and the challenge of covering periods of annual leave or sick leave. As outlined below, this was raised by three interviewees who noted that ensuring there was more than one lawyer was essential in terms of overcoming the problem:

We’ve only been funded for one lawyer, which, in and of itself is okay in an organisation that has other criminal lawyers. But if we only provide one lawyer, there’d be very much in isolation in terms of their practice area. If they would go on and leave, which people are entitled to do, who covers it? You know, so it creates all those sorts of sustainability issues.^[509]

Just because you do have people go on leave or, you know, it is a very difficult thing to do continuously … So, I think it’s better really if you can have a few lawyers, rather than it all falling on one person to do. You know, for practical reasons as well, if people need to have leave, it's important I think to do that.^[510]

With the oversight from myself, a team leader and then a few other lawyers ... it just provides further options that mean that it doesn’t all rest with that one person. Which, you know, can be impacted by if someone is unwell, periods of holiday, things like that, that can make it … challenging.^[511]

In a model where lawyers are dealing with other legal aid matters as well as ILR work, one interviewee raised lack of capacity as an issue and observed that the private practice model might by comparison be better able to deal with such issues:

[I]t’s because of the trouble we have getting law centres to take the cases. I think if we PP’d [private practice] them out, it would be … there’d be less capacity constraints. I think the one big thing and the experience we have of 45 years now almost of running the law centre model is that it’s always had limited capacity and we’ve had to effectively manage that capacity through the use of waiting lists. And the waiting lists have gone up, have gone down from time to time, depending on the economy effectively.^[512]

For some, the rates of pay were perceived to be unreasonable because they had not been benchmarked against other public sector legal employers:

Now the other thing is that, yeah, rates of pay have been an issue. Our pay scales for solicitors are different to what other public sector legal employers have. And when I say different, I say worse.^[513]

But yeah, that has made us uncompetitive with other public sector legal employers. And, you know, it depends on what state the economy is in. If the economy is in dire straits and people want a job, they’ll take the job. If the economy is good, people will take the higher paid role elsewhere.^[514]

Only one interviewee (an independent barrister) observed that the salaried model may not be perceived as sufficiently independent and that the private practice model would be preferable in terms of protecting the lawyer-client relationship:

I think if it is a salaried thing, it will not be seen as independent. That’s my gut reaction. And I draw on my experience ... So, they’re just seen as establishment. They’re seen as they’re not … I think you have got to find the money for … you either … it’s all duck or no dinner, in my view, you either have your own lawyer or you don’t.^[515]

No other interviewees identified perceived independence as an issue where lawyers were situated in third sector organisations. However, this was raised as a potential problem where ILR provision was too closely associated with criminal legal aid provision. For example, for those salaried models located within legal aid, one of the most prevalent challenges described by interviewees related to potential conflicts of interest. This was perceived as an issue because of the tensions between legal aid funding for criminal defence work and work in support of victims at the same time, or from the same funds, which gives rise to the appearance of conflict:

But I think it’s just this tension, you know, for Legal Aid who have always done, kind of, criminal defence work to then start doing victim work, there’s just going to be issues that come up with that. So, I think that’s something we probably need to work on a bit.^[516]

One interviewee described in some detail the way in which this tends to be overcome in practice however using their ad hoc panel of lawyers:

So we just send a text out to all of our panel and just say there’s a matter, it’s on this day, this is the name of the accused, so they know if they’ve got a conflict because they might have appeared for this before. This is when it’s in court. And the first person to respond gets it.^[517]

In relation to resolving conflicts, several interviewees described the benefit of salaried models located in both not-for-profit and legal aid practice sites where cases could be referred to each other if a conflict of interest arises. A memorandum of understanding regulates the relationship and, if needed, a case can otherwise be sent to a private panel of lawyers located in one of five or six selected law firms.^[518] It is considered important that such conflicts are handled quickly.^[519]

In Scotland, some interview participants commented on the idea that an ILR service could be located within the existing Public Defence Solicitors’ Office (PDSO) service. It was observed again, however, that this would have the potential for conflicts of interest to arise. Lawyers in the PDSO are salaried and employed by the Scottish Legal Aid Board to provide defence services for clients who qualify for legal aid.^[520] One interviewee commented as follows with respect to conflicts of interest, including the potential for legal challenges on that basis:

If PDSO or a form of PDSO … or a subgroup of PDSO were allocated this work on a commissioned basis, obviously you would have to be very careful because if that subgroup of PDSO are effectively, you know, aligned with PDSO, you’ve immediately got a conflict situation because PDSO are acting for accused persons ... I think as well as the actual conflict there is maybe perceived conflict as well ... conflict of interest, perceived or real, could be there in some cases. So, if it was a solicitor or a different PDSO office, could there be challenges if somebody had dealt with a Section 275 on a case?^[521]

The interviewee noted further that if this challenge could be overcome, an advantage was that the PDSO offers the possibility for service provision in geographic areas which may not otherwise have access to it.^[522]

8.3.1 Potential contracting of ILR in Scotland

Several interviewees in Scotland observed the potential of contracting legal service provision with respect to ILR. Legal aid contracting has been defined as follows:^[523]

Contracting is the system of service delivery through formal, legally binding contracts between the contracting authority ... and legal services providers. The contracting authority decides how many contracts are awarded and defines how the service provider must deliver the required services. Usually quality standards and other requirements are specified along with a range of contractual terms that the provider must meet. Contracts can be non-competitive – meaning that any provider who meets the published requirements is awarded a contract, or competitive – meaning that contracts are only awarded to a limited number of providers.

Depending on how contracting was structured, and the extent to which those providing ILR under the contract were specialising in ILR work, this might result in an approach superficially similar to a salaried model. Contracting legal aid services, while not prevalent in any of the international models we studied and therefore extremely limited in terms of data collection on the issue, is common in England and Wales with respect to different types of work across areas of civil and criminal law. The Legal Aid Agency (LAA) tenders every three to four years for services by way of contract and may also tender on an ad hoc basis, for example, if there is a gap in service provision in a certain geographic area.^[524]

One interviewee noted that for this system to operate in Scotland a change to legislation would be required to widen the scope from those registered to provide criminal legal assistance to include other service providers.^[525] Another interviewee considered that an advantage of this model was that it might help to tackle issues with conflict of interest:

It would negate the conflict of interest issue and I’m assuming they would be funded ... they’d have a salary, so they wouldn't have to apply separately for every case ... I can see the benefits of that.^[526]

The interviewee commented that as compared to a more traditional judicare model on a case-by-case basis, the contracting of services might also better allow for monitoring of service provision. They observed in this context that “peer review or some other form of quality assurance would be set up for it” and would be “built into the terms of the contract”.^[527]

Another advantage of the contracting model, as compared to the problems presented by short-term grants of funding in the salaried model (as explored above), is that the length of the contract could be longer and therefore provide greater security to lawyers.^[528] Contracting of services was also considered by one interviewee as a way of tackling the wider problem of recruitment and retention, as compared to the salaried model, because it does not take criminal legal aid lawyers away from other areas of work:

You can see that the latter would work [referring to specialist salaried model] and I can see how that would be a preferred model for the government because it controls the expenditure to an extent. All I would say on that is, if you look at that in isolation, I think that’s probably a good idea to deal with this particular issue. But in the bigger picture, it’s yet another thing taking solicitors out of the system.^[529]

The interviewee further observed in relation to lawyer recruitment that current criminal legal aid solicitors, especially those coming towards the end of their careers, were likely to be interested in taking up the work so long as the rates of pay were reasonable.^[530] It was nonetheless observed that under current frameworks it would not be possible for PDSO lawyers to provide the service under contracting arrangements because they are paid on a salaried basis. The contracting would be “on the basis of price to deliver a particular service in a particular location” making it difficult to accommodate under the salaried system.^[531]

A perceived advantage of commissioning a service by way of contracting, as compared to the current judicare model in Scotland, was the fact that it might provide some measure of predictability and stability in a system already under pressure. One interviewee observed in this context:

If the government wants to and parliament wants to introduce a dedicated service for a vulnerable group of people that has to be responded to, you know, fairly swiftly, you’re not going to have a lot of time to do this type of work, then you’re not talking about leaving it to chance, it has to be a dedicated service. And, therefore, I think it has to be a commissioned service of some kind.^[532]

In terms of disadvantages, it was noted that a contracting model might limit choice for complainers in terms of instruction of solicitors, which is challenging given its importance to this type of service provision:

The cons of [the contracting model] is just that the complainer wouldn’t have the right to pick who they want [as their solicitor] and it might be that they know a good lawyer that they would prefer to speak to? As obviously, you’re dealing with quite delicate issues and then the complainer doesn't have any real control over that. And that might be an issue because control might be part of the [criminal] background [to the case]. And the whole point of this is to give the complainers control and feel involved?^[533]

Another potential disadvantage of contracting is that it may not be as ‘demand-led’ as the current case-by-case judicare system.^[534] Others have raised significant concerns about the cost-effectiveness of contracting and the risks associated with delivery, particularly in smaller jurisdictions. For example, in Northern Ireland, a recent scoping study concluded that, “the theoretical attractions of price-based competitive contracting for Legal Aid are not in practice deliverable”.^[535] Potential risks include non-delivery, abortive costs and localised market failure.^[536]

8.4 Private practice: advantages and disadvantages

Two of the ILR models we examined delivered ILR through a private practice model. One advantage identified in relation to this model was that it affords greater variety and flexibility for lawyers. This can in turn help to minimise the likelihood of burnout and vicarious trauma. As one lawyer commented in this context: “[the work] is a very difficult thing to do continuously”.^[537] Similarly, another lawyer commented that there can be high rates of attrition with ILR work and the private practice model might ensure there is always a group of lawyers able to take on cases and that specialist expertise can be provided if needed.^[538]

The private practice model might also allow lawyers to be more easily accessible to a wider geographic area. Where salaried lawyers need to travel to different courts across a large region this can mean there is less time available to spend with clients. As one interviewee noted: “It’s always seemed a bit more trouble than it's worth to really have, you know, a staff lawyer just doing this exclusively. And it’s trying to cover the whole [jurisdiction] and travel around.”^[539]

Aside from these advantages, interviewees tended to discuss the drawbacks of the private practice model. Key amongst these was the difficulty of taking a trauma-informed approach to clients. For those providing services within this model, they talked about the difficulty of providing adequate representation in the limited time available within the fixed fee arrangement. For example, one interviewee observed that the vicarious trauma of the work risked being exacerbated by frustration around not being able to spend adequate time with clients (in a model where three hours of advice was funded):

I think it’s more emotionally taxing for lawyers. So, a lot of lawyers don’t want to hear these stories and deal with the vicarious trauma, I would say. And then, of course, with the limited hours, you can’t really do that much, so that’s a bit frustrating.^[540]

For another interviewee in the Scottish context, the challenge of taking a trauma-informed approach was similarly connected to the lack of time available for clients, as well as a general challenges in terms of embedding trauma-informed practice into service provision:

It’s a balancing of the risks, that provision not being available or not being available at a sufficient quality or not available in a trauma-informed way because not all firms are operating like that. Although the Law Society [of Scotland] are promoting trauma-informed training and lots of solicitors have done it, there’s many who haven’t and don’t provide their services in that way.^[541]

The challenge of insufficient time to build trust with clients in order to take a trauma-informed approach was also identified by research participants in Canada. While one interviewee observed that the private practice model might allow for a wider geographic reach, another commented that this was nonetheless often difficult because service provision might be for a limited time and only by phone or online:

And then from my understanding, they weren’t necessarily connecting or meeting with the survivor until very close to the hearing date. It’s a big province and … you might have a lawyer based in [Canadian city] but the victim is in [other Canadian city] and they’ll maybe get a phone call and sometimes the lawyer is only appearing for those hearings by phone or by video ... there’s not a lot of chance to build up a relationship of trust and, you know, comfort for the survivor with that lawyer.^[542]

With respect to this issue, the interviewee commented that “marrying up the independent legal advice schemes with the independent legal representation” might help to ensure lawyers had more time with complainers,^[543] as well as a pre-existing lawyer-client relationship to rely upon for the delivery of ILR.^[544] It is worth nothing that, in the Scottish context, a prospective private practice model was similarly identified as a barrier to wide geographic reach and consistency of service provision:

I think the downside of [the private practice model] is that lack of assurance about any geographical area or at any point in time, you know, is this service going to be available? Judicare can’t provide that. It can’t provide that just now on, you know, the whole range of other cases that are available.^[545]

Notably, the issue of insufficient time for cases and lack of available lawyers might also relate to the process by which the private practice lawyer is assigned. As several interviewees outlined, lawyers are generally assigned when court dates are set, sometimes making it difficult to find a lawyer at short notice:

The other complication is that a lot of times, we don’t assign lawyers until court dates are set. So, you know, it might be coming up in the next month or two and so finding a lawyer on our roster of lawyers that we’ve already pre-approved for doing this type of work can be more difficult if the court dates are coming up because they’re very busy as well.^[546]

It’s really just finding the right lawyer who’s available. So sometimes we’ll get, like requests during the school break, school March break, which is like a two-week period. And we’re, like, there’s just no lawyers working. And so sometimes things have to get adjourned. We do our best but sometimes we’ll get, you know, a very last minute [referral] and it’s really difficult to find somebody available because our lawyers are very busy with other things, and they do lots of other work.^[547]

Indeed, across two of the Canadian jurisdictions studied, which operate a private practice model, a lack of available lawyers to take on ILR cases was identified as a key challenge. One interviewee reflected that they were still working on solutions to this problem: “And, I mean, we don’t have a perfect solution for that yet, it’s something that we’re working on. I wouldn’t say that was a sort of unexpected challenge, but it’s something that is definitely coming to the fore.”^[548] Aside from lawyers being busy on other cases, another issue was that they might be conflicted out of cases due to their other criminal defence work.^[549]

In one Canadian jurisdiction, the problem of insufficient lawyers available related to low rates of pay. Recent increases in one jurisdiction were noted to have “expanded the roster of lawyers”,^[550] nonetheless, the knock-on impact of having insufficient lawyers to provide ILR was noted as a concern. Being unable to secure a lawyer can mean repeated adjournments and delays, which risks re-traumatising complainers. One interviewee commented that a salaried model may be preferable to a roster (private practice) model in view of this issue:

I would say there’s some challenges ... It would always be nice to have more [lawyers]. You know, it would be nice if there were, ideally, if you were going to be, like, here’s a wish list and this is what we would like, it would be really nice to be able to have lawyers that are designated to the work. I don’t know, you know, if there was a position or there was some way that you had two or three folks that could take all the files and that’s their work and that’s what their focus is. I would say in an ideal world, that’s what I would like to see, I think that would be preferable over having a roster.^[551]

An interviewee within a private practice model also generally observed that it afforded insufficient opportunity for the quality of representation to develop over time and it was also more difficult to have oversight of cases.^[552] Developing this point, they observed that the comparative advantages of a salaried model were that:

… people could hone their skills, they would, kind of, be a subject matter expert in that sense. That type of thing. You know, back each other up, if someone’s on vacation, well, this person’s covering. Or if someone needs support, there’s this person.^[553]

The challenge of monitoring the quality of provision in private practice/judicare models was also raised by another interviewee:

But with judicare case by case funding, there is no control over which firm will choose to do it, where that service can be provided, when it can be provided. So, from a government point of view, judicare can’t provide security of provision.^[554]

It is important to note that while conflicts of interest might arise in the salaried model, they were similarly identified in the roster/panel system as a potential issue. As explained by one interviewee: “It has possibly gotten tricky where an organisation is supporting [the accused in the same case as] the complainant who is seeking support”.^[555] Another Canadian interviewee noted that, practically speaking, they had to try and ensure that different people within legal aid were assigning a lawyer to the defendant and the complainer:

We just don’t want to have the appearance of, you know, we’ve approved the defence budget for how they’re going to run their trial and we’ve also assigned the complainant their lawyer. So, we just try to have two different people doing that. So that’s like one of the, kind of, weird things that comes up as well.^[556]

Likewise, in Scotland, the likelihood of conflicts of interest in the private practice model was raised as a concern:

Because obviously cases can run on for a long time ... if they act … either they could be acting in a case that’s related to one where ILR then comes into play and so they could be ruled out for that reason, or they might be reluctant to represent somebody for an ILR matter or section 275 matter because that could then preclude them from acting in something more lucrative.^[557]

There’s an increasing trend in … certainly, in Glasgow and Edinburgh, for amalgamations of criminal firms. So that could potentially cause conflict. If you’ve got these big firms like [redacted] who have got 20, 25 solicitors, then you might end up with one person dealing with a rape case and they go to a different office. But that would … most people would notice that and that wouldn’t be an issue.^[558]

In terms of tackling this issue in practice, an interviewee noted that the collegiality of the profession would assist in ensuring cases were covered by other lawyers as required.^[559]

8.5 Discussion of the advantages and disadvantages of the models

While caution should be exercised in generalising qualitative research findings, it is nonetheless possible to draw some tentative conclusions from the data collection.

First, some of the drawbacks mentioned above potentially arise in both models. There is, for example, potential for conflicts of interest (because the organisation involved is also representing accused persons) to arise regardless of which model is chosen. The important thing here is to have provisions in place to deal with these when they occur.

Secondly, taken together, interviewees tended to observe a greater number of advantages and fewer disadvantages with the salaried model of provision. Perhaps more importantly, however, the disadvantages of the salaried model were seen as more easily addressed compared to those of the private practice model. The risk of burnout can be lessened through allocating resource and time to peer support, the provision of breaks and reflective supervision. Capacity and conflict of interest issues can be addressed by having additional provision by way of an ad hoc panel of lawyers.

The most significant disadvantages of the private practice model relate to difficulties in developing specialist expertise and embedding trauma-informed approaches. It is well accepted that taking a trauma-informed approach is necessary to meet the needs of complainers in cases of sexual violence and to minimise the risk of re-traumatisation. This is not impossible to do in a private practice model, but the constraints of private practice make it harder to do so. Certainly, for most interviewees, the salaried model was said to provide greater opportunities to understand and embed trauma-informed approaches.

It is also notable that in both jurisdictions that operated a private practice model, interviewees told us that if they could start again and design their system from scratch, they would choose a salaried model.

8.6 Recruitment and retention of lawyers

Regardless of the model chosen, issues potentially arise in relation to the recruitment and retention of lawyers. Certainly in some salaried models there have been issues with recruitment of suitably qualified lawyers. In several of the Australian jurisdictions, there was discussion of the need to take time to find the right expertise as well as ensuring that appropriate training and supervision was in place. The salaried lawyers recruited tend to be at the ‘mid-career’ stage and usually have a minimum of around five years of post-qualification experience.^[560]

In the recently established ILA pilot in England and Wales, following an unsuccessful recruitment exercise, additional funding was sought to facilitate an increase in rates of pay and provide wider support to lawyers delivering the service. This included infrastructure such as “specialist training, paralegal support, counsel advice, supervision and management support”.^[561]

The challenge of recruitment and retention of lawyers working in legal aid outside of Scotland and in not-for-profit civil society organisations has been well documented elsewhere.^[562] This is said to be particularly acute for lawyers who are at the mid-career stage who may have increased financial and caring responsibilities.^[563] In our data collection, it was generally deemed important amongst interviewees in practice that rates of pay were reasonable and benchmarked fairly. One interviewee in England commented that this might not mean salaries are commensurate with legal aid, especially, for example if the rates of pay related to equivalent rates for early legal help (i.e. the provision of legal information and general legal advice). In short, they observed that the equivalent legal aid rates would be insufficiently high to make the role attractive:

We did a lot of, you know, discussions with lawyers about this. I mean, to do just advice work that’s not litigation, that’s not in court, is on what’s called the Legal Help Scheme. The payment for that is tuppence ha’penny basically and both civil and criminal lawyers only do it as a loss leader in order to pick up cases which then become certificated cases in either the criminal or the civil courts.

So, in the [redacted] pilot, they actually negotiated a very high rate of pay for the pilots ... but it’s … not Legal Aid rates. If you paid more money, yes, people would do it, but it’s just not deliverable within the existing Legal Aid framework that we have.^[564]

In Ireland, an interviewee related the issue of rates of pay and retention of lawyers to the wider problem of comparatively low rates of pay for legal aid lawyers in that jurisdiction.^[565] Adequate resource in support of the service was noted as important in terms of tackling issues with delay in the system regardless of the model of delivery adopted. As one interviewee stated:

I think ... about what the best model of providing the service is. Ensure, you know, it’s adequately funded in whatever model is chosen. That the fees for solicitor and counsel are adequate for in terms of the service that is provided. And ensure that there’s no possibilities for logjams in terms of how it’s been structured.^[566]

In Scotland, one interviewee commented from a practical point of view that the take up of ILR by lawyers under a private practice model might be limited by the constraints of ‘time and line’ funding where a solicitor is reimbursed for time spent on specific tasks (known as ‘line items’):

So you only get paid for the time you appear in court, but what a lot of the lawyers were saying was, and I get this because if you’re a busy lawyer and you already have a busy practise and then there’s [a preliminary hearing] at 10:45 in the morning [where you are providing ILR] you know that means you have to clear your diary for that day or that morning ... All of that to just get paid for that 15-minutes or half an hour? You’re losing an awful lot of remuneration for the amount of other stuff you might have to move out?^[567]

Likewise in Scotland, several interviewees also observed the potential challenge of recruiting suitably qualified lawyers when they perceived numbers of criminal legal aid lawyers to be already at low levels, however, they nonetheless highlighted the need for appropriate specialist expertise in criminal law.^[568] One considered the advantages of the salaried model in this context: “Solicitors would be employed because of their ability and skill sets. So, I can see benefits of that.”^[569]

As in other jurisdictions, interviewees in Scotland observed that lower numbers of suitably qualified lawyers might be linked to low rates of pay, as well as to the attraction of the role of working for Crown Office, as compared to private criminal defence practice, in terms of stability and working conditions.^[570] Relatedly, as is well identified by legal aid workforce research in England and Wales,^[571] the problem of an ageing demographic of criminal legal aid lawyers was repeatedly noted by interviewees as adding additional pressures in the system. As described by one interviewee:

Because one of the other key aspects is, we’re all acutely aware that the criminal defence profession has its lowest numbers at present. And obviously the Dean of Faculty referenced it at the start of the legal year just over a fortnight ago and the Law Society reports about the criminal defence bar being an ageing profession. When I say defence bar, I mean … I include obviously solicitors in that that there’s an ageing profile in the defence community. And if they are currently struggling to support accused in these cases, where do we get the profession that’s needed to support complainers and the ILR process as well?^[572]

In this context, another interviewee in Scotland observed: “There are far, far too few criminal lawyers, there are really not enough advocates either. The High Court’s running at, you know, 18 months to two years delays for trials.”^[573] With respect to the ageing demographic for criminal lawyers and numbers more widely across Scotland, the interviewee expanded the point as follows:

The Legal Aid Board have a thing they call the peer review, which is to review criminal solicitors and check they’re doing the job properly. You have to have done at least seven cases in a calendar year to be peer reviewed and only 484 solicitors met that criterion. Right. That’s for the whole of Scotland. Of that 484, I think there’s 156 did 52 per cent of the work. So, there’s a very small number of us and we are aging, you know, for everyone under 30, there’s two over 50.^[574]

The lack of available lawyers also relates to the challenge of potential conflicts of interest, as discussed above. In Scotland, this was perceived to be particularly acute in areas outside of the central belt where there were generally fewer lawyers. As one interviewee noted:

There’s maybe ... only one main criminal lawyer in Shetland ... So if it was a sexual case up there, I don’t know who else the complainer would go to ... because the accused is probably instructing that solicitor, so things like that, you know, it’s just capacity.^[575]

An interviewee in the Scottish context also observed the importance of having available solicitor advocates, or the ability to instruct counsel.^[576] As explored in chapter 5, the availability of lawyers with the necessary rights of audience are critical to the effective delivery of ILR and suitable experience and expertise will need to be ensured at the recruitment stage regardless of the model of delivery. That said, one interviewee did not necessarily consider it essential for lawyers delivering ILR to have parity of seniority with defence counsel in terms of years of practice and expertise:

So, I wouldn’t have seen the need for that, it doesn’t obviously occur to me that there should be parity. It’s not like during the trial process where, if the trial was to be prosecuted by a silk, then there’s an argument that there should be parity there because there will be a battle across the way.^[577]

Another interviewee in Scotland commented that whether a lawyer brings experience of defence or prosecution work might be relevant to their general approach:

The one thing I’m not sure about is, when I deal with people who have spent their entire career prosecuting, sometimes it’s not easy for them to have the football-loving neutral mindset and give the sort of open and unbiased advice because they can see both sides of it. I’d have a slight concern that if you have somebody who only ever interacts with complainers that perhaps that, inadvertently or unconsciously, affects their approach to it.^[578]

The inter-relationship between advice and representation was also identified as a concern insofar given that the time needed to be able to adequately advise and represent clients might not be available in view of other pressures and could therefore limit lawyer recruitment to a private practice model. As one interviewee noted:

Then the next problem that comes in is where do you get that legal advice? Because you’re asking already overstretched criminal solicitors to allocate probably at least half a day to attending with somebody. They need to be made aware of the facts of the case, there needs to be an element of preparation.^[579]

Against this background, and especially important in the context of vicarious trauma, is that research elsewhere demonstrates that delay and pressure in the system can adversely affect the well-being of lawyers and may also adversely impact lawyer retention.^[580] As one interviewee observed, “The biggest problem with our profession at the minute is the work-life balance ... it cuts into your family life, which is a definite issue.”^[581]

Organisations providing salaried service provision by way of short-term grant funding tend to generally face issues with recruitment and retention of lawyers.^[582] The use of short, fixed-term contracts can exacerbate workplace insecurity and inequality^[583] and, in the context of ILR provision, may also lead to issues with embedding cultural change in terms of adopting trauma-informed lawyering approaches. In Scotland, one interviewee observed the challenges faced by organisations given the tendency towards one-year Scottish Government commitments to grant making:

The grant funding … currently, how grant funding is operating is that it’s one-year budgets. That’s extremely difficult for services to manage. And there are delays in getting those decisions each year. So, the services themselves are … I think they suffer a lot. If it’s only a one-year budget, you know, you have to give staff notice of redundancy. And it’s a very, very difficult process for everybody involved. But that is the same for grant funding across the advice sector. So, the advice sector obviously are very, very good at managing, you know, a jigsaw of financial planning but … it’s not easy at all.^[584]

Finally, in each of the salaried models studied, other issues pertaining to lawyer retention tended to relate to discussion of the need for reflective supervision and other support structures in place to minimise vicarious trauma and burnout, as discussed in chapter seven.

8.7 Chapter summary

The key distinction across the models studied is whether ILR might be delivered by way of salaried or private practice lawyers. Even in a salaried model, facilitation of some degree of ad hoc private provision is usually required to ensure there is representation available should there be a conflict of interest, specialist expertise is needed, or capacity issues unexpectedly arise.

The advantages of a salaried model include the development of expertise in relation to service provision; easier integration of principles of trauma-informed practice; a single point of contact for clients with potential access to other support services; greater ease of monitoring and evaluation; potential benchmarking of rates of pay; lawyers can rely on the technical and administrative support of the wider organisation; and they can support one another, including during periods of leave, thus minimising the likelihood of burnout.

The disadvantages identified in relation to the salaried model were in relation to low rates of pay; capacity issues where there were not enough lawyers to meet demand; and conflicts of interest around cases, especially where services were situated within legal aid.

The key advantage of the private practice model was that it provided a measure of flexibility to lawyers and could relatedly therefore minimise burnout and the risk of vicarious trauma. It was also identified as an attractive model for reaching more remote geographic areas. However, several disadvantages were identified including challenges in integrating trauma-informed practice (especially relating to insufficient time available to spend with traumatised clients in order to build trust); the inability to develop specialist expertise in the provision of ILR; the difficulty of finding roster or panel lawyers at short notice; conflicts of interest; and the challenge of monitoring the quality of casework.

Interviewees tended to observe a greater number of advantages and fewer disadvantages with the salaried model of provision. Additionally, the disadvantages of the salaried model were seen as more easily addressed compared to those of the private practice model. The risk of burnout can be lessened through allocating resource and time to peer support, the provision of breaks and reflective supervision. Capacity and conflict of interest issues can be addressed by having additional provision by way of an ad hoc panel of lawyers.

It is clear that attention should be paid to ensuring the rates of pay and working conditions are attractive to recruit, and retain, suitably qualified lawyers. In this respect, it is considered important that grants of funding under a salaried model are for sufficient lengths of time to prevent precarity and insecure employment. This is especially important for this type of service provision where a trauma-informed approach, and the nature of the work, depend on having time to develop specialist expertise and the skills needed for reflective practice.