The purpose of this article is to help Duty Solicitors retain their status and to avoid LAA recoupments. We include real experiences of firms and outcomes. The fact is that most duty solicitors do on average undertake 14 hours per week, but many do not time record properly and some who believe they are not compliant probably actually are, but do not realise it and therefore cannot demonstrate it.
The experience so far
With just over a year under the new contract, stories abound as to many duty solicitors and their firms finding it hard to comply with the 14 hours rule set out in the Standard Crime Contract 2017. Sometimes this is attributed to a dearth of work in rural areas or an overabundance of Duty Solicitor supply in urban ones. New firms complain that they don’t have the work to justify 14 hours per week. Others complain that their higher rights work is not taken into account. Yet more voice concerns based on an overly harsh approach taken by LAA auditors.
The consequences are certainly serious as failure to undertake and record these hours can lead to a loss of livelihood for the individual and can also pose an existential threat to firms having to hand back thousands of pounds to the LAA in recoupments. Duty Solicitors need to realise that they may not be claiming time recording for all they could. Whilst the lessons to be learnt are best tackled digitally [with very significant onward benefits], there is nothing to stop a manual system being used to collate the missed times.
Where did the 14 hours requirement come from?
The answer is it has always been there in part as a general measure. Prior to 2017, a Duty Solicitor had to work for 14 hours. Post 2017, a Duty Solicitor must undertake 14 hours of “Contract Work” – that is work that is in principle remunerable.
There are harsh penalties for those in breach. The 2017 Contract Specification states:
6.23 Subject to Paragraph 6.24, all Duty Solicitors you use to obtain Duty Slots must undertake a minimum of 14 hours’ Contract Work for you per week from the Office for which those Duty Slots have been obtained.
6.24 The 14 hours’ requirement in Paragraph 6.23 will be measured on a rolling monthly basis to accommodate different working patterns.
6.26 Retaining Slots issued in a Duty Solicitor’s name who does not meet the requirements in Paragraphs 6.22 to 6.25 is a material breach of Contract and entitles us to issue a Sanction under Clause 24 of the Standard Terms. You are not eligible to receive payment for any work undertaken on Duty Slots obtained as a result of such a breach and payments made as a result shall be an “overpayment or mispayment” as defined in Clause 14.
6.27 You must maintain a Record in accordance with the provisions in Clause 3 of the evidence of compliance with Paragraphs 6.22 to 6.25.
and, importantly also:
6.37 You may not submit a CRM12 form or seek to obtain Duty Slots in respect of Duty Solicitors who:
(a) will not be Engaged by you during the Rota period or who do not meet the competence requirements in Paragraphs 6.15 to 6.20; or
(b) are not habitually resident in England and Wales unless you have received our express written approval to submit a CRM12 form; or
(c) notwithstanding any other provision in this Contract, receive a payment for the use of their details on a CRM12 form for the purpose of obtaining additional Slots but are not Engaged and integrated into your organisation and used to deliver Contract Work. or
(d) are temporary staff engaged to cover periods of maternity or paternity leave of a Duty Solicitor of up to 12 months (because you will have access to Slots allocated in respect of that Duty Solicitor on maternity or paternity leave); or
(e) are temporary staff engaged to cover periods of sick leave of a Duty Solicitor you have used to obtain Duty Slots whilst you have the benefit of Duty Slots issued their name.
Any breach of this Clause 6.37 is a Fundamental Breach. You are not eligible to receive payment for any work undertaken on Slots obtained as a result of such a breach and payments made as a result shall be an “overpayment or mispayment” as defined in Clause 14”
Part of the origin of the above rules lies in the issue of “ghost duty solicitors”. These problems started in the main when the Carter reforms lead to a large number of Duty Solicitors being laid off in urban areas and some couldn’t or didn’t want roles as ‘freelance’ consultants. Anecdotally in some instances and in reality in others, the range of ghosts manifested itself in
- former criminal lawyers holding CLAS accreditation, but working in other departments, still being on the duty rotas
- CLAS holders no longer in the profession but being paid retainers for lending their names to a firm
- CLAS holders permitting themselves to be ‘captured’ by recruitment consultants who then touted them around firms looking to beef up market share
- CLAS holders living abroad
In short, the Duty Solicitor status in itself became monetised and distorted practice within this hard-pressed sector. So, after a widespread outcry, the above rules were imposed by the LAA in 2017 to rid the system of “ghosts” and in doing so require firms to collect and report data on pain of penalties.
The first rotas under the 2017 Contract apparently contained an 18% drop in Duty Solicitors. Now though, some are saying that the 14 hours are unachievable for many and maybe even actionably discriminatory. Below is an attempt to show how actually most if not all Duty Solicitors can achieve 14 hours per week and collate and report it to LAA effortlessly. We have come across a whole range of Duty Solicitors: those who are single parents/carers of disabled people or with other responsibilities and yet a larger number with predominantly Crown Court advocacy practices.
The 2010 Contract Specification provided:
6.32 We will not suspend or exclude a Duty Solicitor from undertaking Duty Solicitor Work on a Scheme or Schemes where any of the criteria in Paragraph 6.22 is not met because of an individual’s disability or because of an absence from work of up to 12 months owing to sickness, injury, pregnancy, maternity leave or some other reasonable justification.
The 2017 Contract Specification now provides:
6.25 You may retain Duty Slots allocated in respect of Duty Solicitors where the named Duty Solicitor is:
(a) absent as a result of a period of maternity or paternity leave up to a maximum of 12 months from the date of absence provided you have not been informed they do not intend to return; or
(b) absent as a result of period of sick leave up to a maximum of six months from the date of first absence.
Thus, a Duty Solicitor who has to reduce their work commitments by reason of responsibility for caring for children or sick relatives is not now exempt from the 14 hours requirement as the current Specification provides only:
6.46 We will not suspend or exclude a Duty Solicitor from undertaking Duty Solicitor work on a Scheme or Schemes where any of the criteria in Paragraph 6.22 is not met for some reasonable justification.
We understand from consultants with experience in these matters that in practice, Duty Solicitors who take time off sick are generally safe (up to 6 months), but those who must reduce hours for a period of time e.g. caring responsibilities, or their own health, do not seem to be afforded the same grace period, though there have been successful appeals.
What is ‘contract work’?
This is defined in the Contract itself as “the work that you may perform for Clients in the Category or Categories of Law and/or Class(es) of Work specified in your Schedule(s) and the Specification under, or by virtue of, this Contract;”
In practice, for the LAA, contract work means work undertaken for which it is possible in principle to bill.
It appears to us that the key aspects of this definition are “work….for clients…[that is] specified in your Schedule(s) by virtue of this Contract” The concept is wider than the notion of work being billable or needing to will be something that actually progresses the case.
Arguably, all work conducted for clients – not just billable work -must fall into this definition. So this would mean that all work in Investigations and Proceedings class and Prison law and Crown Court litigation work as well would count. We find that even within these areas vital times are commonly not recorded -see below for details
What is not contract work
This category of work includes that which is expressly forbidden. Always check against the above definition. What is meant by “clients”? Must it be named clients? Or can prospective clients count? Example: some firms are calculating duty slot ‘stand-by’ time toward their 14 hours per week when rostered on police station duty schemes. Some are going even so far as deducting from the total slot time, the time spent on client during that slot period.
However, this so called ‘stand-by’ time issue was specifically ventilated during the Contract application procedures and the LAA clearly ruled that out. So, if a firm is using such a rationale then it is mistaken.
Equally, ICC/VHCC work – each governed by a standalone contract with the LAA – will not count. It ought to and the LAA should vary the contract to so permit.
It goes without saying that time spent in administrative tasks, such as file reviews, will not play as this is an unbillable exercise.
Time in Supervision may be billable if discussion focuses on a particular case (as inter fee-earner discussion).
Work undertaken as agent
If a duty solicitor undertakes work for another firm but does it as agent; as it has come through from your firm then this would appear at first blush to be contract work for your firm. However, the “contract” in question is that of another firm and this, strictly speaking, is not contract work. However, we also understand that some LAA auditors are not taking issue with this.
But given the general highly restrictive approach adopted by other LAA auditors it is likely that a narrow interpretation should be expected.
Section 38 work
The funding for this work is not within the contract so it is arguable that this is also not contract work. However, the Court can direct a Court Duty solicitor to undertake such work. Is this contract work?
Specification paragraph 10.15 states
“Where a court prevents the defendant from cross examining a witness under section 38 of the Youth Justice and Criminal Evidence Act 1999 and the court appoints a Duty Solicitor to represent the defendant for the purposes of cross examination, the Duty Solicitor is under a duty to undertake that work unless there are exceptional circumstances that prevent it from doing so. The Duty Solicitor will be paid out of central funds.”
No guidance has been provided by the LAA on this point and there is no anecdotal evidence.
Does this payment out of Central funds also mean it is also not contract work?
If the LAA apply the same logic as VHCC work, then it would probably say no here too. But ought not to.
Crown Court Advocacy
Many Duty Solicitors undertake a substantial amount of Crown Court advocacy. Different LAA auditors are taking different decisions and such arbitrary behaviour cannot be good.
The LAA has refused thus far to take a definitive position.
In practice, some auditors appear to be accepting some Crown Court advocacy so long as the individual has a mixed practice. Others refuse to allow any such work to count towards the 14 hours.
This issue is currently under review.
The best course for all is to LAA to unequivocally vary the terms of the contract to make clear what counts and what does not count across all forms of work undertaken by Duty Solicitors acting as criminal lawyers.
What form is LAA action taking
We understand that the issue is existential for some firms. Large recoupments are being made.
Steve Keeling is a former highly experienced LAA Contract Manager and is now a consultant with DG Legal. He indicates:
“The LAA seeks to terminate where it feels they have enough evidence to reasonably suspect that the firm has made no attempt to achieve compliance (clause 6.37)
More commonly, failure to meet the standards leads to removal of the Duty Solicitor, and a reduction in slots for the firm going forward.
Minor breaches, or breaches that can be explained by circumstance (and are ‘one-off’ in nature) are often accepted by auditors, or if not, on appeal. This is the area where we see individual auditors making inconsistent decisions, but DG Legal has had good success with appeals in this area.
The LAA has generally backed down on recoupments on appeal. However, they will hit a firm with a slot reduction going forward e.g. Duty Solicitor ‘A’ has had 20 slots since April, we will remove 20 slots from the firm in the next rota
Even on slot reductions, I have raised queries such as (using the above example), Duty Solicitor “A” was compliant for 6/9 months in the period under review, what is your rationale for removing slots relating to the 6 months where “A” was compliant. This argument won a reduction in the number of slots being reduced.”
Gilles Ward, is a costs draftsman with his own costs and compliance practice and is also a consultant with DG Legal. He states:
“LAA auditors are generally highly aggressive in their assessment of contract compliance failures but the LAA are willing to consider new evidence and do no more with minor contract infractions than issue Contract Notices (still difficult but no actual penalty).
However, there seems to be no willingness to forgive 14 hours failures at all.
Penalties have included recoupments and reduction of slots going ahead. Individual Duty Solicitors have also been removed from rotas.
Termination is threatened but (thankfully!) has not been recommended in the instances I have dealt with.
There are some firms however who have had that sanction applied. Even if successfully appealed, this prospect is very frightening for practitioners and involves very significant expense. Even dealing with lesser penalties is a distressing experience and costly.
The correct course, where there are failures, is to engage in an open and ongoing dialogue with Contract Managers, alerting them in advance to potential 14 hours deficiencies and, where necessary, voluntarily withdrawing non-compliant Duty Solicitors from the rotas.
Going ahead, the rather loose structure that has applied in many criminal practices no longer seems sustainable. It is absolutely necessary to both ensure sufficient work is undertaken by individual Duty Solicitors and also to monitor and record 14 hours compliance. All Duty Solicitors must be brought firmly within a practice’s administrative structures. There is thus a significant administrative ‘spend’.
The position of Duty Solicitors who have heavy individual responsibilities – say for children or sick relatives – is particularly hard. The 14 hours rule is in reality a 16 hours+ rule (if 4-6 weeks annual holiday/leave are factored in): so, the requirement in reality is for 2 ½ days’ work a week. Practice owners and managers need to plan work allocation with individuals facing personal challenges.”
The Solutions for Firms and their Duty Solicitors
We are a specialist Criminal Law IT provider and as part of our service we also assess risk to Criminal law firms. The most urgent matter that firms needed to have to avoid penalties for themselves and their Duty Solicitors was to have a Duty Solicitor Compliance Report that was constantly updated and able to give a weekly picture -after all the 14 hours requirement is a weekly one albeit monitored on a rolling monthly basis. Firms can thereby assess their risk and make fixes within the following week [see below]. We devised just such a bespoke Report and it is auto fed with data from the duty solicitors engaged by firms who use our systems.
It is noteworthy that most of the time spent by Duty Solicitors is not office based but out in police stations, courts and prisons and also at home as well as the office.
We also came across a significant under recording by Consultants/Freelancers working on fixed fees and therefore not so mindful of the need to time record as fully as they could. In many firms, consultants form over half the Duty Solicitor complement. We devised a solution to not only fix this but also knit the freelance Duty Solicitors into the instructing firm so as to be enable the firm to readily collate the time recording of the freelancers as well in no different a fashion as fully employed staff.
The solution for capturing both employed and consultant time recording was a low cost App for tablets. BYOD [Bring Your Own Device] is an accepted concept whereby staff such as consultants can use their own existing hardware and the firm or the self-employed consultant provides the software – its less than half the price of a telephone advice call fee. For those consultants working for a number of different firms there is the Freelancer App that allows them to service multiple firms. Either way the instructing firm lower their own cost and get more in return in terms of vital data instantaneously as the App syncs with the office systems of the instructing solicitor and giving the firm many time saving advantages that are now needed.
Our audit of Duty Solicitor work identified
- the following not being time recorded properly per type of activity that is within the definition of contract work
- other discrete tasks that could be given to Duty Solicitors short on hours so that the firm could avoid draconian penalties.
Items of time not recorded properly or at all
A: Telephone advice work:
This can be broken down into constituent parts:
|Taking call from DSCC – Use 6 min units|
|Abortive/ineffective calls to police custody made to stay within contract rule of speaking to client within 45 mins – in London it is routine to have 15-20 abortive calls before getting through to the custody suite. This is work for the client. Each call should count. We hesitate to suggest these are 6 minute unit calls each but should be collated as 1-2 minutes each as per duration.|
|Effective substantive calls to police custody obtaining case details both before and after speaking to client – use 6 mins units|
|Time spent speaking to client – use 6 min units|
|Time speaking to client’s associates/3rd parties – use 6 min units|
|Time spent talking to police on other calls on this case re progress/updates – use 6 min units per call [NB if in email correspondence with Officer In Charge of the Case then can record 6 mins per email sent]|
|We found that duty solicitors were actually recording anything upwards of 30 mins per case when they add up all the above – our App auto totals all time and auto sends this to the Duty Solicitor compliance report.|
We found that Duty Solicitors at some firms were not recording most of the above activities. As part of developing a Criminal Law App [the Bullseye App] for tablets we devised specific fields to capture all of the above data and lots more with the user mainly just tapping the screen and working more efficiently than with paper and pen.
B: Police Station Attendances
By embedding clocks in the App we set up specific auto totalling fields for the following activities
|Time Fee Earner set off for the Police Station – we found that as firms pay mostly fixed fee rates that staff were neglecting to record travel times.
|Time of Fee Earner arrival at Police Station/Location.
|Minutes of Waiting – social/unsocial time: the App works out what is social/unsocial time. Differentiating allows firms to pay higher overtime/rates for unsocial time if they want to. We found that as firms pay mostly fixed fee rates that staff were neglecting to record waiting times.|
|Minutes of Advice & Assistance – social/unsocial time. Then specifically the following times are captured with ease:
Whilst dealing with all above the Duty Solicitor is able to certify other matters such as Sufficient Benefit Test and use checklists for sufficiency of advice – so it also helps with the all-important Peer Review process.
|Time of Fee Earner Departure from the police station
Time of Fee Earner Arrival at office/home
|Perusing file and drafting outcome letter|
|All of the above times are auto totalled and sync with the office and help produce an ongoing Duty Solicitor compliance report for management to monitor Duty Solicitor compliance on an ongoing basis.
C: Undertaking Court Duty
Again, we found that the nature of fixed fees has led to a neglect in recording the proper use of time actually expended. We devised a form within the App dedicated to court duty work. Many staff and firms thought that since they were only paid for travelling to court on weekends/bank holidays that they need not record time on travelling to weekday court duty sessions. A simple button for signifying weekends/public holidays travel time causes that time to go into billing.
We developed specific fields for the following Court duty related activities in our App:
|Time Fee Earner set off for the Magistrates Court:|
|Time of Fee Earner arrival at Magistrates Court:|
|Court Duty Time: This section contains start and stop clocks – using these auto fills your totals relieving you of the tedium to having to add them up yourself, particularly when attending on own clients as well in the same session|
|Time spent on clients at court after being released by the Court:|
|Time of Fee Earner Departure from Magistrates Court:|
|Time of Fee Earner Arrival at office/home:|
|Duty solicitor Call Back travel times:|
|Perusing file and drafting outcome letters to clients advised/represented:|
Undertaking Magistrates Court Non-Duty Work
(i) Preparation time on a day prior to the hearing
Again we found that consultants were less inclined to time record all that they ought to as their fixed fee included this work anyway. Duty Solicitors need to be rigorous in recording preparation time whether for a remand or a trial – a generic prep/attend form was devised within our tablet App that auto totals the times spent and Duty Solicitors could fill this out in 2 minutes when preparing the case at home the night before. Many hours could be time recorded and auto added to the grand weekly total in this way
Preparation for a 1st appearance: this could ordinarily be at least 60-90 mins
Preparation for a trial: 90-240 mins – all depending on the complexity of the case of course
Work that could be recorded in this way included the following [non exhaustive list]
(ii) Work undertaken at Court can include
|Time Fee Earner set off for the Magistrates Court:|
|Time of Fee Earner arrival at Magistrates Court:|
|Pre-Hearing Preparation Time Preparation work at court can include – perusal on any new evidence as well as the following if not done on an earlier date
|Total Attendance Times [pre and post hearing]
for attendances on
We developed separate sections for the above as it is required by the LAA contract that you breakdown attendances per attendee. The final time is auto totalled up
|Minutes of Hearing: Start and end time clock auto totals up the hearing time|
|Time of Fee Earner Departure from Magistrates Court:
Time of Fee Earner Arrival at office/home:
The total travel time is auto totalled up
|Perusing file and drafting outcome letter|
Other discrete tasks that could be given to Duty Solicitors short on their 14 hours
It appears that those with most difficulty meeting 14 hours per week are self-employed consultants who have duty slots but no other work. The table of suggestions below is mostly pertinent to such persons in the unlikely event they cannot undertake 14 hours per week on the work available to them. As these ideas are outside the Duty Solicitor work they will likely carry some cost but at the end of the day it is for firms to decide whether they want the Duty Slots of the consultant or not. Self-employed consultants are a valuable and integral resource in this sector.
|Other Ideas re 14 hrs
Non exhaustive list
|‘Clerk’ Crown Court cases – acting as litigators representative. This could contribute 2-4 hours per case for PTPH/Sentence cases and 7-9 hours for trials per day
|Listen to interview tapes
|Undertake Special Preparation work on telephony disks in contested matters|