|The Scottish Office Home Department commissioned this literature review in January 1997 to inform the development of a pilot public defence solicitor project to be set up under the provisions of the Crime and Punishment (Scotland) Act 1997. The literature review draws upon research carried out in other jurisdictions and compares the delivery of criminal legal aid services by private solicitors with lawyers employed on a salaried basis, the so called public defender or staff lawyer schemes.|
- Information comparing the delivery of criminal legal aid by public defender or staff lawyer schemes with private (judicare) solicitors was identified in 3 common law jurisdictions, Canada, Australia and the United States of America. However, the body of research from Canada was found to be the most coherent and reliable data source from which to draw conclusions and inform the debate in Scotland.
- Research in Canada consistently shows that the average case costs of staff lawyers are cheaper than private lawyers.
- Despite the lower average case costs in Canada, staff lawyers were found to achieve broadly similar or slightly better outcomes for their clients than private lawyers. Clients of staff lawyers were neither more nor less likely to be convicted than the clients of private lawyers (60% of all accused, regardless of lawyer type, are convicted). Where the client was convicted, those represented by a staff lawyer were less likely to be given a custodial sentence.
- The quality of both staff lawyers and private practitioners in Canada was also investigated. Surveys of criminal justice actors (judges and prosecutors) as well as the clients themselves identified a general and equal satisfaction with the work of both staff and private lawyers, despite the difference in case costs.
- A key factor explaining why salaried lawyers cost less was that staff lawyers tended to spend less time on a case compared to their private colleagues. This observation referred to all the individual elements of cases such as research, preparation and advocacy as well as spending less time in court waiting rooms.
- Other differences in working practices of staff lawyers included the finding that staff lawyers achieved the withdrawal of charges and plead their clients guilty at earlier stages than private lawyers with the result that, overall, staff lawyers were able to conclude cases at earlier points and were involved in fewer trials.
Legal aid in Scotland is delivered through what is termed a "judicare" system ie a system where legal aid services are provided by private lawyers remunerated on a case by case basis to persons fulfilling the relevant eligibility criteria. This system has, however, become the target of reform in the light of rising legal aid costs1 which some commentators have linked, in part, to the judicare form of delivery. Part V of the Crime and Punishment (Scotland) Act 1997 provides for a pilot project in which salaried lawyers2 will be used to provide summary criminal legal assistance. The pilot must be evaluated in 3 years and a report presented to Parliament.
This literature review was commissioned in January 1997 to inform both the development of the Scottish pilot and the means by which it shall be evaluated.
The Focus of the Review
Three common law jurisdictions with experience of public defender schemes were studied in the course of the review: the United States, Australia and Canada. Library searches and academic bibliographies indicated that they would be the primary sources of useful information. Research evaluation reports, statistical records, government papers, legal aid annual reports and academic articles of relevance were collected and analysed for each jurisdiction in order to provide an overview of the evidence relating to the comparative costs and benefits of the staff and judicare delivery models. However, it quickly became apparent that only Canada provided information of a quality that could usefully inform the development of the Scottish pilot.
The information available from the USA was of limited use because research there has been carried out in a less strategic fashion. As a result, it is not possible to arrive at a consistent overall view on the merits or failures of public defender or salaried schemes. Rather, the US literature merely highlights the extreme problems (such as underfunding, casework overload, geographical problems and judicial intervention) facing many of the small, localised systems that make up the American legal aid system. This would seem to apply regardless of whether the scheme is judicare based or employs salaried lawyers. In the light of these pressing circumstances it is perhaps not surprising that concerns have been expressed by some commentators about the quality of both publicly funded staff and private lawyers.
In Australia, where the legal system is much less fragmented than in the USA, there was only a small number of individual studies to consider. Unfortunately the findings of this work were undermined by methodological problems which brought the validity of their findings into question. Some Australian commentators have suggested that their experiences highlight the failure of research rather than the successes or failures of either staff or private lawyers.
In contrast, the Canadian research had much to commend it for the purposes of this review. Canada provided a number of rigorous evaluations from its 12 distinctive provinces, allowing comparative analyses and providing some consistent conclusions about the working and effectiveness of both staff and judicare delivery models. These studies have also benefited from consideration by both the Canadian Department of Justice and the Canadian Bar Association. Key findings from the Canadian studies are outlined below.
Canadian Research Findings
The main finding that emerges from a study of Canadian research3 is that staff lawyers are capable of providing cheaper legal aid services than private bar lawyers. Chart 1 outlines the findings from the evaluations of 4 provinces which utilise mixed legal service delivery models (i.e. legal services are delivered through both staff and private lawyers). This shows that in those provinces where both private bar lawyers and the staff model operate, average case costs of the staff lawyers were lower.
Source: Dept of Justice, Canada (1995) Patterns in Legal Aid, Dept of Justice, Canada
A number of hypotheses have been put forward which attempt to explain this finding. Some of these are put forward by critics of the salaried scheme while others have been generated by the Canadian research studies. They are as follows:
- Staff lawyers provide an inferior service
- Private lawyers handle more difficult cases
- The tariff system makes private lawyers more expensive
- Private lawyers spend more time on cases
- Staff lawyers tend to conclude cases at earlier stages
- Staff lawyers process cases to the benefit of the court not their clients
These factors will be discussed briefly in the context of available research data.
Staff lawyers provide an inferior service
It is the suggestion of critics of salaried schemes that any lower costs result from the fact that salaried lawyers provide an inferior service to their clients than do private lawyers. This claim is not supported by the Canadian evidence on the "outcomes" of cases. Clients of staff lawyers were neither more nor less likely to be convicted than the clients of private lawyers (60% of all accused, regardless of lawyer type, are convicted) and were also consistently given fewer custodial sentences. Chart 2 illustrates this finding.
Source: Dept of Justice, Canada (1995) Patterns in Legal Aid, Dept of Justice, Canada
Many of the evaluations also investigated the quality of service provided by considering the views of actors in the criminal justice system (e.g. prosecution counsel and judges) and the assisted persons themselves on the work of both salaried lawyers and the private bar. Where conducted, such surveys indicated that both types of lawyer provided satisfactory levels of service. Neither model was shown to be inferior or superior to the other.
Private lawyers handle more difficult cases
Another explanation for the higher costs of the private bar is that they conduct more difficult cases. The Canadian evidence does not support this claim. Although some of the studies may legitimately be accused of operating with samples of cases that are biased in this way4, others utilised controls to avoid this problem. The Burnaby evaluation, for example, used a system whereby staff and private lawyers were allocated cases on a random basis and the researchers in Manitoba specifically controlled for different types of cases (e.g. thefts, assaults, weapons offences etc.). Producing comparable samples of cases from both delivery models emerges, from the Canadian literature, as a primary consideration for any proposed evaluation.
The tariff system makes private lawyers more expensive
The "tariff system" is the process by which private lawyers apply for and receive remuneration for the legal aid work that they carry out. Unlike public defenders who are on a salary, private lawyers are paid, through the tariff system, on a case by case basis. There is some evidence to support the view that the application of a tariff system makes private lawyers more expensive. Work carried out by the Canadian Department of Justice concluded that private solicitors received higher hourly rates of remuneration than staff lawyers. This would seem to be partly caused by a phenomenon identified in other studies where private lawyers engage in "strategic billing", that is they maximise their billable hours.
Private lawyers spend more time on cases
Canadian research strongly suggests that one of the reasons that private lawyers are more expensive than staff lawyers is that they spend more actual or engaged time on cases. This includes spending more time on the individual elements of cases such as research, preparation and advocacy as well as spending more time in court waiting rooms. Chart 3 below, taken from the Manitoba evaluation, demonstrates this finding.
The evidence does not, however, indicate that this extra time improves the service received by clients. As outlined above, the evidence in fact suggests that staff lawyers are, if anything, capable of securing slightly better outcomes, in terms of conviction rates and sentences, for their clients than private lawyers. Commentators have suggested that the specialisation of staff lawyers may allow them to effectively handle cases more quickly and that private lawyers may also be encouraged to record spending more time on cases by the tariff system (see below).
Source: Sloan, R. (1987) Legal Aid in Manitoba: An Evaluation Report. Dept of Justice, Canada.
Staff lawyers tend to conclude cases at earlier stages
The working practices of staff and private lawyers appear to be different. Research has found that staff lawyers tend to plead their clients guilty at an earlier point than private lawyers. The main source for this finding is the Alberta study and the following chart is drawn from information collected on the staff lawyer project in Alberta.
As well as pleading their clients guilty earlier, charges are more likely to be withdrawn at earlier stages also. It has been suggested that these facts imply that staff lawyers engage in more active and more fruitful negotiations with prosecution counsel.
Source: RPM Planning Associates Ltd (1996) Evaluation of the Staff Lawyer Project, The Legal Aid Society of Alberta, Canada.
Staff lawyers process cases to the benefit of the court not their clients
Concerns have been expressed that the working practices of salaried lawyers in pleading clients guilty earlier and avoiding trials conform to court agendas rather than to the interests of their clients, and are detrimental to the independence of defence counsel. The research evidence in Canada suggests that staff lawyers do engage in more active negotiation with the prosecution and that this activity does have positive benefits to government in terms of more effective use of legal aid resources and more efficient use of court time. However, there is no evidence to suggest that this activity compromises the interest of the client. As stated above, research has shown that there is no difference in the conviction rates between staff and private lawyers, and in terms of custodial sentencing the working practices of staff lawyers actually result in a slightly better outcome for clients. In addition to evidence on the outcome of cases, client satisfaction surveys and the views of peers in provinces operating salaried lawyers identified no evidence to support this view.
The pilot public defenders scheme in Scotland has much to learn from the Canadian experience which illustrates that, in the right conditions, public defenders can achieve the following benefits:
- more cost effective provision of legal aid services
- fewer and shorter custodial sentences for convicted clients
- the provision of legal services that are equally satisfactory as those provided by the private bar
- the resolution of cases at earlier stages in the criminal justice process resulting in fewer expensive trials.
If the pilot public defence solicitor project can replicate these achievements in the Scottish legal environment then there are clear benefits to be had for the Scottish legal system generally.
About the study
This literature review was commissioned to inform government proposals, contained in Part V of the Crime and Punishment (Scotland) Act 1997, to introduce a small experimental public defenders project in Scotland. The 2 models under scrutiny are the judicare model (the model currently used in Scotland where legal aid is delivered through the private lawyers) and the staff model (where legal aid services are provided by lawyers employed by the state the experiment to be set up and evaluated under the 1997 Act). Research materials from a range of foreign jurisdictions which have experience of both these models were focused upon. These included the USA, Australia and Canada. While both the USA and Australia provided some insight into the achievements of public defender schemes, research from Canada was found to produce the most robust, consistent and most fertile data source to inform Scottish policy makers. Therefore the findings outlined in this summary paper are, primarily, Canadian research findings.
The review was commissioned by the Scottish Office Home Department and carried out by Alistair Henry (independent consultant) and Andrew Fleming (Legal Studies Research Branch).
|A Literature Review of Public Defender or Staff Lawyer Schemes (1998), the research report summarised in this Research Findings, may be purchased (price £5 per copy). Cheques should be made payable to the Stationery Office and addressed to: |
The Stationery Office Bookstore, 21 South Gyle Crescent, Edinburgh
Telephone: 0131-479-3141 or Fax: 0131-479-3142
This Research Findings may be photocopied. Alternatively, further free copies or information about the Central Research Unit's Research programmes can be obtained by contacting:
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1The legal aid bill in Scotland has risen from £43.2m in 1987/88 to £133.6m in 1996/97. In 1996/97, 67% of the bill was for criminal matters. The problem of criminal legal aid costs especially have been focused upon in the 1997 Act. Figures taken from SLAB Annual Report.
2Up to 6 lawyers may be employed by the Scottish Legal Aid Board under the Act.
3The provinces studied have not been compared with each other rather the comparisons given relate only to outcomes and costs within each province.
4 In Nova Scotia and Saskatchewan cases are generally only referred to the private bar where the client could face a life sentence if convicted or where a conflict of interest has emerged such cases are likely to be of a serious nature