In response to my previous post regarding this matter, which I am very grateful to Steven Raeburn of the Firm Magazine for placing on its website also, I received a comment from John Scott, one of the principals of Esto Law.
He indicated a willingness to engage by answering any queries I might have in connection with the matter, and also later on came back to me to tell me that the website, http://www.estolaw.co.uk, was now up and running.
Very professional it looks too!
As I replied to Mr Scott, I suspect questions about the issue would best come from those, such as the Glasgow Bar Association, who are directly affected by the creation of this new entity.
I do want to offer a couple of thoughts regarding the contents of the site. I am sure that, if I have at all misunderstood the position, I will be corrected.
The “Mission Statement, if you will, for Esto Law runs as follows:-
“ESTO has been created by experienced criminal practitioners as an innovative service designed to assist hard pressed and overworked criminal lawyers when their clients face police station interviews as detailed in the ACPOS Manual. ESTO, unlike the traditional firm model, is designed for the sole purpose of assisting you with your representation of your client. Esto’s work in representing your client on your behalf begins and ends in the police station.”
(NB I have left in place the links in the various matters I quote from the site.)
On the face of that, who could have an issue? Having a firm cover the police station interviews without any risk of your client being “stolen”? Great – the hard pressed criminal sole practitioner can sleep soundly in his bed, rather than turning fitfully waiting for a post-Cadder type interview to jolt him from his slumbers.
Indeed, the site itself says:-
“ESTO aims to reduce not just the demands on your valuable time but to remove the constant worry of a telephone call requiring your immediate attendance at a police station.”
The next section of the site details how it would work in practice, saying:-
“Signing up is easy. All we need are basic details and a single, annual payment, currently just one percent of your firm’s criminal legal assistance fee income in the last year, according to the SLAB Annual Report. Solicitor advocate fees, VAT and outlays aren’t taken into account.”
There is also a link to the draft service contract to be entered into with a Client Firm.
From my discussions already with some criminal practitioners, the fee being sought, namely 1% of the Client Firm’s Criminal Legal Assistance fees for the previous year, seems to many to be grossly excessive. “A liberty” as one described it to me.
Indeed, the website suggests that this 1% deal may be the “introductory” rate, which would suggest an increase after a certain time has passed.
I assume that the wise folk of Esto Law have worked out how to charge a fee to a new firm, who d not have an income from the previous year – one assumes that the work is not being done for nothing!
The contract runs for 12 months. Whilst Esto can terminate it on 28 days notice, the Client Firm cannot do so, unless (a) there is an insolvency event (to adopt the language of the SPL Rule Book) or (b) “if the provisions for payment in terms of the Legal Aid Act Regulations or provisions regarding payment materially change following the commencement of this Agreement”.
One can see the potential for arguments about whether SLAB changes to the Legal Aid system qualify as material.
The cost of the agreement is, as I have mentioned, 1% of the Criminal Legal Assistance income of the solicitor. This applies whether or not the Client Firm decides that there will be certain offences, or categories of offence, where they still wish to see the client themselves. There is no discount for restricting what Esto are to do.
If we take as an average fee income of £100,000 per partner/fee earner in exclusively criminal practices, then, for £1,000 per year per person (or £20 per week) there is cover avoiding those late night calls.
Is it worth it to a firm turning over £100,000 in Criminal Legal Aid to pay £1,000 plus Vat for the service? It is obviously up to the individuals, but already some to whom I have spoken clearly do not see that as worthwhile.
In addition, and this is not to lay any accusation at the door of Esto, criminal clients can be fickle and, if they feel they are being taken for granted by their solicitor, especially if remanded in custody awaiting trial, some might feel that if their lawyer wants to stay in bed, they will instruct a solicitor who is prepared to see them. Esto’s terms are designed to prevent them taking on the client. But it would not stop the Client Firm potentially losing the client.
In terms of fees, the total sum paid by SLAB in fees for Criminal Legal Assistance, in the last annual report, was in excess of £81 million. If every firm in Scotland signed on with Esto, then this would give them over £800,000 of fees even before any of the Advice and Assistance fees mentioned below. Of course that will not happen, but one suspects that they are looking at a substantial number of the relevant firms signing up. A base income in the hundreds of thousands of pounds would (a) greatly reward the Directors and staff for the prescience and (b) guarantee, one assumes, a top level service.
Esto too will be paid a fee under Legal Advice and Assistance, if the client is eligible, for each attendance, as per their contract. That too has the potential for squabbling where an Advice and Assistance fee might be subsumed into the full Criminal Leal Aid fee. In addition, if ABWOR (Assistance By Way of Representation) is required by the Client Firm, how would a prior grant of Advice and Assistance cover in respect of Esto Law affect that?
It is here that we come back to the crux of the issue. It would not be unreasonable to assume that these practical issues have been discussed, whether in the context of the new venture or generally, with SLAB. If this was taking place when the Directors of Esto Law were wearing their Law Society Negotiating hats, then that might appear to some to suggest a conflict of interest.
It might simply be that these men, with their great understanding of the Criminal Legal Aid landscape post-Cadder, have seen the way in which an innovation can (a) help the hard pressed practitioner and (b) make them some money. What, one might ask, is wrong with that? Surely innovation and novel ways of dealing with new problems should be welcomed?
The answer may be nothing, but as more than one commentator has said today, as well as doing the right thing, it is important in law to be seen to be doing the right thing. Now that, as mentioned, the GBA for example have raised specific questions, I would not propose to trouble John Scott for example with queries arising from this blog, but, as I mentioned at the start, I am happy to be corrected if guilty of any misunderstandings.
In one view, this is a business launch to match the creation of New Coke – a dramatic change which sickened the propective customers.
Random Thoughts Re Scots Law by Paul McConville 