Criminal defence solicitors have called for expedited legal aid payments and an extension of the business rate holiday to law firms with contracts to combat the impact of Covid-19.
The call for action by the Criminal Law Solicitors Association (CLSA) is one of multiple developments as the legal profession, like the rest of the country, battens down the hatches with the coronavirus set to dominate society and business life for the coming weeks and months.
In a detailed note outlining advice to solicitors and what the criminal justice system needs to do to adapt to the pandemic, the CLSA said a sustained outbreak would likely result in significant challenges within the criminal justice system, “including a possible drop-off in cases, delays in others and potentially the absences of key staff and workers including counsel, agents and experts”.
This may in turn cause financial issues for firms. “We will be calling on the government to extend the business rate holiday announced in the Budget to law firms offering legal aid and duty solicitor services.
“It is being suggested that the government will offer more flexible options for tax and National Insurance contributions, but much expenditure will be a contractual obligation, including the payment of staff salaries, pension contributions and other benefits, property rent and equipment-lease instalments.
“It is essential that firms can meet these obligations or reach agreement to postpone those they can.
“Where cash flow is assessed to be a potential problem, firms should consider approaching their banks to see what loan and overdraft facilities might be available. Firms might also consider approaching their landlord and other major suppliers to discuss possible arrangements.”
The CLSA urged the Legal Aid Agency to relax some of its stringent requirements – such as the requirement that duty solicitors undertake 14 hours of contracted work a week – and suspend in-person audits and contract manager visits for the time being.
It also called for expedited payments of claims and a temporary presumption in favour of payments, “rather than firms who may have up to 20% of its workforce off sick having to spend hours disputing assessments”.
The CLSA said it insisted that the agency respected individual risk assessments and decisions taken by firms.
“No action or adverse comments should be made. This is non-negotiable and any attempt to undermine any firm or individual’s right to make these choices is likely to be counter-productive and lead to wider action.”
The CLSA argued that the criminal justice system was “ill-prepared” for any outbreak and that in order to function, the Legal Aid Agency and court service would “inevitably place further burdens on firms and practitioners”.
It also expressed concern about the mooted increase in video hearings, saying they should only be used in emergency cases at this stage, or ones where a defendant was not required, such as mention hearings.
The group added: “We also call on the government to ensure any and all protections and arrangements made for public sector workers apply equally to those working in private practice as legal aid lawyers. When it comes to seeing the criminal justice system through this, we are all in this together.”
In her advice to members of the Criminal Bar Association, chair Caroline Goodwin QC said it would ask both the Crown Prosecution Service and Legal Aid Agency “to take what would not only be an unprecedented step but would be a welcome gesture by allowing counsel to bill for work done. This is a crisis and in simple terms cashflow is vital…
“We recognise that advances in payment is both a complex and frankly time consuming ask but it will be a lifeline for so many practitioners. We must be able to submit bills where hearings have been conducted.
“We cannot sit and wait for a trial to be concluded in the way that we do presently and given that the predictions are that this is going to go on for some time, the backlog will no doubt become acute and so we will need timely payments.”
Beyond criminal law, many law firms have instituted work from home policies for staff, while the University of Law has suspended face-to-face teaching from 23 March to 20 April.
The pandemic has led to a lot of questions for conveyancers in particular, such as what would happen if a completion did not take place after contracts have been exchanged due to Covid-19.
New Law Society guidance said the parties not completing would be in default, with the contractual consequences that followed, “unless the non-defaulting party takes a ‘good faith’ view”.
Rob Hailstone, who runs the Bold Legal Group, said he has suggested that the group come together with the Law Society, Conveyancing Association, Society of Licensed Conveyancers and Council of Licensed Conveyancers “to try to agree a common way forward” on pre-exchange contracts “so that the creation of any additional contract clauses is limited”.
The latest advice from HM Courts & Tribunals Service is that “as long as you, or the people who are coming to court with you, do not have confirmed or possible coronavirus infection and do not need to self-isolate in line with NHS advice, you should continue to use courts and tribunals as usual. This includes those attending for jury service”.