FOR CRIMINAL defence solicitors up and down the country, new rules that mean everyone brought in for police questioning will have the right to legal advice from the end of this month have proved a bridge too far in their battle to make a living from legal aid work.

While no one disputes that the rules are a positive move in safeguarding everyone’s right to a fair trial, Ian Moir, convener of the Law Society of Scotland’s criminal legal aid committee, speaks for many when he says that such a system “needs to be properly funded”.

READ MORE: Legal aid system in crisis as lawyers shun police duty scheme

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However, as early indications are that solicitors serving on the Scottish Legal Aid Board’s (SLAB) duty scheme will receive a far greater number of calls than they currently do, particularly overnight, many have reckoned that the money being offered means the work is simply not worth doing any more.

As a result, solicitors have withdrawn from the scheme in their droves, with members of local faculties in Edinburgh, Aberdeen, the Borders, Falkirk, Dunbartonshire and Moray all tendering their resignation.

Those in Dundee are set to follow suit while members of the Glasgow Bar Association, 200 of whose members take part in the duty scheme, will make their position know later this month.

To be fair to the SLAB, which administers the nationwide scheme, it has sought to alleviate the profession’s concerns about low fee levels by overhauling the system of payment for police station duty work.

READ MORE: Legal aid system in crisis as lawyers shun police duty scheme

New rates are being introduced that will see solicitors paid £30 to take a phone call, £115 to attend a police station for up to two hours and £200 for longer visits.

This will replace the £11.60 per quarter hour rate currently in operation across the scheme and is expected to see the total spend on police station advice from private practice lawyers increase from £500,000 a year to £3.1 million.

Not only that, but with Edinburgh Bar Association president Leanne McQuillan estimating that solicitors generally only claim about a third of the fees they are due for duty work, the SLAB is also introducing an online system that is designed to make the process of filing accounts far simpler.

“We estimate that 70 per cent of police station work goes unclaimed for,” Ms McQuillan said. “If I do a telephone consultation I never claim because it’s too much hassle.”

READ MORE: Legal aid system in crisis as lawyers shun police duty scheme

But if solicitors don’t even bother to claim their fees and on an individual basis don’t actually spend much time doing duty work (in urban areas many are only on the rota for a few weeks a year while in rural areas they serve for longer periods but get fewer calls) is it really worth them making all this fuss?

Yes, according to Robert More of Edinburgh and Borders firm More & Co, who said that the wider issues criminal legal aid solicitors are facing mean that dealing with even a small uptick in rota-based work is unmanageable.

“To look at the police station duty scheme in isolation would be wrong,” he said.

“It’s a much wider problem with criminal legal aid because we can’t operate this system because we don’t have the numbers of lawyers to operate it.

“The reason is now a generational one because the profession can’t attract solicitors in the numbers that are required.”

Falkirk solicitor William McIntyre agreed, noting that because “legal aid isn’t really worth it anymore because it just doesn’t pay”, “students are being told by their lecturers not to look at criminal law”.

“It’s very difficult to employ people now,” he said. “I used to advertise jobs and would be inundated with applications. Now if I advertise I get no interest.”

The knock-on impact is that when it comes time for firms to take their turn on the duty rota they can’t spare the staff to do it and they can’t afford to take on extra staff to cover it. That inevitably means one person being on call all night while dealing with their normal caseload during the day.

“Most of the people doing legal aid now are quite old, like me,” Mr McIntyre said.

“We can’t be up all night then in court the next day but with the money that’s there we can’t afford to employ someone to do it.

“I can’t say to my assistant ‘next week you’ll be on the night shift all week’. He might not get a call but I would still have to pay him and I can’t say stay up all night then go and do a trial the next day.”

READ MORE: Legal aid system in crisis as lawyers shun police duty scheme

Another problem has arisen because the SLAB will have to cover the duty work from its own Public Defence Solicitors Office (PDSO) and Solicitor Contact Line (SLC), meaning it will be forced to hire significantly more staff if in a worst-case scenario all 845 solicitors withdraw from the scheme.

At this stage the SLAB cannot put a figure on the numbers it would need to staff the scheme on a full-time basis. However, as employees at the PDSO and SLC earn an average of £35,000 a year and some estimates put the cost of employing a single lawyer for the duty scheme at £59,000, the total cost could be significant.

And, if it was to exceed the £3.1m earmarked to pay duty lawyers in the coming year, it would raise questions about the level of fees paid for legal aid more generally.

With the profession now locked in stalemate over the police scheme one thing is clear: if the criminal justice system is to survive something has got to give.

READ MORE: Legal aid system in crisis as lawyers shun police duty scheme

Solicitors will be hoping that that something is fee levels. However, with the overall spend on legal aid on a downward path, falling by 10 per cent from £150.2m in 2012/13 to £135.7m and expected to drop a further seven per cent to £126.5m in the current year, that seems unlikely.

All eyes will therefore be on Carnegie Trust chief executive Martyn Evans next month, when he unveils the conclusions of a year-long review of the legal aid system he has led on behalf of the Scottish Government.

If fees can’t be changed, perhaps it is time for processes to.