This article was downloaded by: [McMaster University]On: 14 November 2014, At: 06:34Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

International Journal of the LegalProfessionPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/cijl20

Revisiting the debate over criminallegal aid delivery models: Viewinginternational experience from aBritish perspectiveTamara Goriely aa Institute of Advanced Legal Studies , University of London ,Charles Clore House, 17 Russell Square, London, UK , WC1B 5DRPublished online: 28 Apr 2010.

To cite this article: Tamara Goriely (1998) Revisiting the debate over criminal legal aid deliverymodels: Viewing international experience from a British perspective, International Journal of theLegal Profession, 5:1, 7-28, DOI: 10.1080/09695958.1998.9960440

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INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, VOL. 5, NO. 1, 1998

Revisiting the debate over criminal legalaid delivery models: viewing internationalexperience from a British perspective

TAMARA GORIELY*Institute of Advanced Legal Studies (University of London), London, UK

The debate over legal aid delivery models has continued for the last 20 years,provoking much heat and only occasional shafts of light. Yet the question of whethersalaried lawyers or private practitioners offer the best value for money continues tobe relevant. As all developed Western programmes grapple with limited budgets,administrators are forced to consider whether there are ways of cutting costs withoutreducing services.

This article concentrates on criminal representation, which remains the largestsingle item of legal aid budgets, accounting for around two-fifths of expenditure inEngland and almost three-fifths of expenditure in Scotland. It is one of the tra-ditional "cores" of legal aid casework and its continuation is required by consti-tutional provisions in Canada, USA and Europe. There is more evidence about theeffect of delivery models on criminal legal aid provision than on civil provision. Nogovernment attempting to improve "value for money" can afford to ignore it.

Much of the problem with the delivery model debate is that it is highlyideologically charged. It is easy to assume that political battles focus around thetypes of service that should be provided, and that questions about how they shouldbe provided are a matter of technical expertise. This is a fundamentally mistakenview. In fact, the question of how services should be organised has been one of themajor ideological issues of the twentieth century. In comparison, the debate over

*This is a revised version of a paper commissioned in by Osgoode Hall Law School and published bythem in F.H. Zemans, P.J. Monahan and A. Thomas (Eds) A New Legal Aid Plan for Ontario: BackgroundPapers, 1997. I would like to pay special thanks to Osgoode Hall Law School for their support and funding.I also draw on other work I have been commissioned to do: in particular, a literature review for the LordChancellor's Department in 1996 (Legal Aid Delivery Systems: Which Offer the Best Value for Money in MassCasework? LCD, 1997) and a comparison of criminal legal aid costs in England, Scotland and theNetherlands, funded by both the Scottish Office and Lord Chancellor's Department. This later work wasconducted jointly with Professor Alan Paterson and Cyrus Tata (Goriely, Tata and Paterson, Expenditureon Criminal Legal Aid, Scottish Office, 1997), I gratefully acknowledge the support of both funders andco-authors. The views expressed here, however, are entirely my own, and no one else can be blamed forthem.

Address for correspondence: Tamara Goriely, Institute of Advanced Legal Studies (University; ofLondon), Charles Clore House, 17 Russell Square, London WC1B 5DR, UK.

0969-5958/98/010007-22 © Carfax Publishing Ltd

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what should be provided often becomes lost in woolly generalisations: legal aidshould be provided "where the interests of justice require it" or to "deserving cases".

Discussion of delivery models has been subject to major shifts in fashion. In1945 Britain, for example, there was a widespread belief in the power of salariedpublic service: salaried service, after all, had won the war, and it was believed thatit could also win the peace. The Rushcliffe Committee which recommended the firstcivil scheme saw a significant role for salaried lawyers, both to handle the divorcesof the poor and to give legal advice. However, during the 1950s, the Law Societysucceeded in reasserting the dominance of private practice, which was seen as areturn to the "good old" pre-war days. The salaried divorce department soonbecame regarded as a war-time anachronism, which was run down and eventuallyclosed. The legal advice scheme, by the time it was eventually introduced in 1959,was delivered exclusively through private practice.

The 1960s saw the ideological rise of the grant-aided "community" organis-ation. Originating in the United States it soon spread to Canada and Europe andgave birth to the "clinic" or "law centre movement". But by the 1980s, politicianswere beginning to "re-invent government" by contracting out services to privatesuppliers. Soon "contracting" became elevated to the status of political doctrine.Fremont and Parent, discussing Quebec experience, point out that market-drivengovernments are often caught in a dilemma over legal aid. On the one hand, theevidence available to them shows that salaried schemes are cheaper. On the otherhand, they are politically committed to contracting with private suppliers. It shouldcome as no surprise that ideology has sometimes been favoured over cost.1

The British government has reached divergent views on appropriate deliverymodels. In England, the Labour Lord Chancellor, Lord Irvine, has followed hisConservative predecessor in declaring that "the future lies in contacting for services,in both criminal and civil cases".2 Meanwhile in Scotland, a pilot salaried scheme isdue to open in October 1998. The Scottish Legal Aid Board will employ sixsolicitors in Edinburgh to undertake criminal representation in summary cases.

This article is written in the hope that it is possible to stand back from theideological maelstrom and reconsider delivery models in a relatively dispassionateway. It asks what lessons the international debate over delivery models hold forBritain. In the British context it would not be possible—either politically or practi-cally—to replace the 7,000 firms currently handling criminal legal aid work3 withstaff offices. Much of the academic literature on comparative legal aid stresses theadvantages of a mixed model, using both private practice ("judicare") and salariedlawyers.4 The question is whether one should move from a system reliant on privatepractice towards a mixed model, and what that mix should be. Could such a systemoffer a better service at the same cost, or the same service at a reduced cost?

There is substantial evidence that staff lawyers are cheaper, not because theycost less to employ but because they spend less time per case. This is only partiallyaccounted for by their greater specialisation. The essential difference betweendelivery models lies in the incentives given to lawyers. Discussion of incentive effectsis dogged by the difficulty of denning what type of service should be delivered. Thisis not only because political opinions differ, but also because the actions of various

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professional groups define (as well as respond to) "need" for their services. Inprivate practice judicare schemes, where lawyers are paid more if they carry outmore work, there appears to be a tendency, when other work is slack, towardsinflation, both in the number of cases in which representation is provided and in theaverage cost per case. Inflation can be controlled by contracting with firms at flatrates, but this leads to the opposite problem: lawyers may carry out too little work.Meanwhile, salaried lawyers may be encouraged to get through their caseload asquickly as possible by encouraging guilty pleas.

The weight of evidence rests with salaried services. Canadian studies suggestthat despite their higher plea rate, they have similar overall convictions rates andclient satisfaction scores to private practice. Meanwhile, their reliance on guilty pleasmeans that their clients are significantly less likely to be imprisoned. On the otherhand, sceptics worry that salaried services may become overloaded and may be tooprepared to adopt the bureaucratic values of processing people through the system.

There is no ideal system. The challenge for policy makers is to find a suitablemix of services, which allows the strengths of one to counteract the weaknesses ofanother. The article argues that pure judicare systems would benefit from introduc-ing a small salaried element to compete alongside private practice.

Staff costs tend to be lower: the weight of evidence

There is now a considerable body of evidence suggesting that salaried services arecheaper. The best evidence comes from Canada, where the 12 separate legal aidplans provide working examples of different approaches. No one study is conclusive,but there are now at least half a dozen, conducted at different times and in differentways, which all reach the same conclusion: average costs per case tend to be lowerusing staff lawyers. They are well summarised in the Department of Justice's Patternsreport.5

Several studies compare the costs of different services with a single jurisdiction.While some such as the 1983 Nova Scotia evaluation have been attacked for failingto compare like with like,6 others (such as those carried out in Quebec7 andManitoba8) have shown considerable methodological sophistication. The importantBurnaby project monitored a pilot project in which cases were assigned on a (moreor less) random basis.9 It is therefore not subject to the same criticisms that differentservices deal with different types of cases. Other studies have drawn comparisonsbetween provinces. Figures collected by the Canada Centre for Justice Statisticsshow a strong correlation between provinces with a high proportion of staff lawyersand those with low costs per case. In analysing the figures further, the Ministry ofJustice concluded that variations in case gravity, overheads and statistical reportingprocedures "failed to explain the observed variation as effectively as mode of deliveryand tariff structure".10

Whilst it is legitimate to attack any one study on methodological grounds, tofind different methodological objections to all of these studies begins to lookperverse. As Currie points out, "with all the research pointing in the same direction,

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the conclusion is difficult to avoid".11 Even the Canadian Bar Association hasconceded that:

In the criminal field, where some hard data on quality is available, albeitcrude, it appears that the staff model is capable of delivering the sameoutcomes for lower costs than the judicare model, or slightly better out-comes for the same cost.12

Work done outside Canada is not as sophisticated or convincing but tends in thesame direction. Those limited comparisons which have been made in Australia tendto suggest that the costs of staff lawyers are lower.13 In the USA, intra-statecomparisons usually show staff models as having lower costs, but have often failedto control for variations in case gravity.14 The only exception is when one looks atcomparisons between states in the US. These fail to show the same pattern as inCanada. Instead, those Southern and mid-West states with the cheapest schemestend to use assigned counsel, whilst high spending states (such as the District ofColumbia) tend to use public defenders.15 The cheap assigned counsel schemes,however, are hardly an advertisement for judicare, and they have been severelycriticised for their poor quality.16 The American Bar Association (ABA) recom-mends on quality grounds that full-time salaried public defender organisationsshould be established wherever caseloads are sufficient to support them.17

But why are costs per case lower?

By now, the interesting question is not whether staff lawyers tend to have lowercosts, but why this should be. The evidence shows that costs are lower, not becausestaff lawyers are cheaper to employ but because they spend less time per case.

The issue of how much a staff lawyer costs to employ was examined at lengthin a 1983 Australian investigation.18 Here the Australian Legal Aid Council askedProfessor Meredith to examine the comparative costs of staff and judicare legal aid.Meredith decided there was no point in looking at the costs actually paid. Heassumed that if a private practice lawyer spent eight hours on a case, this wasbecause the case needed eight hours work: a staff lawyer would also have toundertake eight hours work or provide a less good service. Instead he concentratedon the cost of employing each lawyer, and found that they were much the same. Heconcluded that debate over the costs of delivery models was not a meaningful oneand "should no longer be continued".19

Meredith was probably right in his findings. There is no intrinsic reason toassume that salaried lawyers cost less to employ. The costs may fall at differenttimes: salaried offices have many up-front costs, while judicare is often paid inarrears. The actual comparisons will depend on how salaries and tariffs are set, butthere is nothing inherent in a staff office to suggest that employment costs will belower overall.

However, Meredith was patently wrong in his assumptions. The evidence showsthat staff lawyers spend less time per case than those in private practice. Thisemerged as a clear finding from both the Burnaby experiment and the Manitoba

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evaluation. In Burnaby, for example, staff lawyers spent an average of 5 hours 40minutes per case, compared with 7 hours for private practice. The Manitobaevaluation found that time differences occurred across a wide range of offence types.For theft offences, for example, staff lawyers averaged 3.4 hours compared with 7.5hours in private practice. For assault charges, they averaged 3.9 hours comparedwith 8.2.20

So far there is reasonable consensus: staff lawyers take less long per case. It isin seeking reasons why this should be that the consensus breaks down. Supportersof staff offices argue that they enjoy economies of scale and of specialisation. Thismakes them more efficient. Furthermore, unlike private practitioners, staff lawyersdo not "hand-hold" their clients unnecessarily, or "pad" their bills. Supporters ofprivate practice argue that staff lawyers may all too easily become overloaded. Theyreact by persuading clients to plead guilty and by skimping on the work, especiallyclient care.

Problems in establishing the "right" level of work

It is difficult to evaluate these competing claims as there is no clear standard of whatconstitutes the "right" quantity or quality of work to be conducted in any given case.International comparisons of legal aid show that although most Western Europeanand North American nations are bound by similar constitutional requirements, theydiffer markedly in their spending.

Criminal legal aid is now considered to be a basic constitutional requirement ofa democratic state. In Europe, it is demanded under article 6 of the EuropeanConvention on Human Rights. In Canada, it is required under §10 of the Charterof Rights and in the USA a series of cases have interpreted the Sixth Amendmentas requiring the provision of counsel to those charged with serious crimes.21

However, jurisdictions end up spending wildly differing amounts to comply withsame constitutional provisions. Within Europe, for example, while the Scots spentalmost £17 per head of population on criminal legal aid in 1994-95 and the Englishspent £11, the Dutch spent under £2.22 The irony is that the Dutch legal aid schemeis widely admired for being "one of the best in the world, probably the best".23 TheDutch also have as good a record, if not better, of compliance with the criminaljustice aspects of the European convention.24 The last national survey of spendingon indigent defence services in the USA also found large differences in spending perhead of population, which ranged between almost $29 in the District of Columbiaand a mere 69 cents in Arkansas.25

Some of these differences can be accounted for in the numbers of peoplebrought before the criminal courts. The Dutch, for example, have a strong record ofdiverting offenders out of the criminal justice system, making heavy use of prosecu-torial fines. Within Ontario, the extension of charge screening by crown attorneyshas also led to a noticeable drop in the number of criminal legal aid certificatesissued.26 Part of the explanation lies in criminal procedure: the inquisitorial Dutchsystem, for example, has no jury trials and does not require defendants to appear ifthey do not wish to. The punativeness of the system also has an effect. The Scottish

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tradition of indeterminate sentences, for example, puts far more people at risk ofimprisonment (and hence in need of legal aid) than in the Netherlands, where thelowest courts have no power to imprison.

Over and above these rational explanations, however, cultural factors are atwork. The various groupings associated with criminal justice interact with each otherand with the legal rules in different ways. It is often these complex interactionswhich define the "need" for criminal counsel. This can be seen by looking at thehistory of English criminal legal aid. During the 1960s it was rare for anyone to berepresented in magistrates' courts (the main summary courts). By the early 1980s,though, most of those appearing in court for imprisonable offences were repre-sented. The 15 years between 1967 and 1982 saw a five-fold increase in real termsin the cost of this element of the service. The increase was not a response to policyinitiatives, as the eligibility and scope of the scheme remained much the same.However, costs were transferred from local court funds to the national exchequer.Meanwhile, courts became busier. Magistrates and their clerks came to see defencesolicitors as a way of smoothing the administration of their courts and preventing thehiccups caused by unrepresented defendants. They started to grant legal aid muchmore readily, and frequently suggested it to those appearing before them. At thesame time, the expansion of the universities fuelled growth in the solicitors' pro-fession. More firms competed for criminal work and the new duty solicitor schemesproved a useful entree for less-established firms.27 The combination of demand bymagistrates and their clerks and of supply by an expanding profession led toredefinitions of what "the interests of justice" demanded.

The effect of professional culture on demand for legal aid can also be seen bycomparing Scotland with England and Wales. The Scots not only spend moremoney on criminal legal aid, but they spend it in different ways. In England andWales, most of the money is spent on jury trials—particularly on a small minority ofextremely large and expensive trials. In 1994-95, around a third of all Crown Courtlegal aid was spent on only 235 cases, each of which had bills over £100,000. Bycontrast, the Scots paid for only two cases over £100,000. Instead, most of theirmoney was spent on summary cases—with a significant bias towards large numbersof small cases, notably for breach of the peace and minor assaults.28 There are noobvious explanations for these differences in priorities. Although the Scots have beenspared city fraud trials, they are equally likely to experience murder and drug cases.It is just that they deal with them more cheaply. The differences in emphasis appearto reflect differences in the legal profession. England has a larger proportion ofbarristers, who receive a higher proportion of the criminal budget. In expensivecases, in particular, the bulk of payments is made to prestigious Queen's Counsel.Scotland has fewer barristers but more criminal legal aid solicitors, who competeaggressively for the business. It is equally plausible that perceived "need" forcriminal legal aid developed in response to professional priorities as that professionalpriorities developed in response to need.

This interaction between professional cultures and perceived need for legal aidmakes it difficult to establish an agreed standard of service against which to judgedifferent delivery models. One lawyer's essential client care may be another's "bill

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padding". Alternatively, one's smooth plea negotiations may be another's abdicationof adversarial values. This needs to be borne in mind in the discussion that follows.

The benefits of specialisation and scale

One clear benefit from salaried defenders arises from their specialisation. As theCanadian Burnaby study found, a public defender office offers young lawyers aquick way of becoming specialists in their field, and they soon become highly skilledat handling routine defence. Furthermore, their size means they can employ investi-gators and some have research departments to keep abreast of scientific, technicaland legal issues. As the British pressure group, JUSTICE, reported, in staff offices"back-up services are better".29 JUSTICE visited the Public Solicitor's office in NewSouth Wales and were impressed by its access to technical expertise. They con-cluded that there was "an overwhelming case" for the creation of a similar office inEngland to deal with post-conviction and post-appeal situations, which woulddevelop real expertise in investigation and forensic science.30 The ABA also recom-mends public defenders on the grounds of their specialisation and back-up service:

When adequately funded and staffed, defender organizations employingfull-time personnel are capable of providing excellent defense services. Bydevoting all of their efforts to legal representation, defender programsordinarily are able to develop unusual expertise in handing various kinds ofcriminal cases. Moreover, defender offices frequently are in the best pos-ition to supply counsel soon after an accused is arrested. By virtue of theirexperience, full-time defenders also are able to work for changes in lawsand procedures aimed at benefiting defendants and the criminal justicesystem.31

Staff offices may also enjoy more mundane economies of scale. By having officesclose to court and handling many cases in the same court each day, for example,they may cut down on travelling and waiting time.

However, benefits of specialisation and scale are not unique to staff offices.Private firms handling similar volumes of work may enjoy similar advantages. Indeedthe English Legal Aid Board's "franchising" scheme is designed to encourage suchspecialisation within private practice. Furthermore, as staff lawyers become older ormore experienced, they may leave for private practice. On this basis, young stafflawyers may be better at routine cases, such as guilty pleas on theft charges.Experienced private practitioners may be better for difficult homicide cases.

Incentives

The advantages of specialisation, though often considerable, are not inherent withinany particular delivery model. The essential difference between judicare and staffoffices lies not in their size but in the incentives they offer to lawyers. In any judicaresystem which relates billing to work done, private practitioners have an incentive todo more work. After all, the more one does, the more one is paid. Salaried lawyers,

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it is argued, generally wish to get through their workload and go home at the end ofthe day. If they do this, the pay cheque arrives automatically.

There is now a burgeoning economic literature about the effects of incentivestructures on lawyer behaviour.32 In many ways, this is a welcome development. Fortoo long professionals have expounded the myth that they were "above" money, andhave denied that they are subject to the same rational economic decisions as otheractors in a capitalist economy. However, much of the literature is exploratory, andconsists of devising sophisticated models based on simplistic and untested assump-tions about how lawyers behave.33 The empirical data are rarely available todisconfirm the hypotheses.

Much of the economic literature has focused around the idea of "supplier-in-duced demand". The theory was first put into the political arena by a right-wingthink tank, the Social Market Foundation. In a 1994 memorandum, they arguedthat professionals behave as economically rational individuals by seeking to maxi-mise their income.34 Private practitioners who are paid for the work they do are ableto exploit information asymmetry between themselves and those paying for theservice by supplying services which are not strictly needed. This leads to costescalation as lawyers not only take on new clients but charge more per case. For legalaid work, the problem is compounded by moral hazard, under which clients do notcare that they are being over-supplied because someone else is paying. The authorspoint to the increase in legal aid expenditure in England and Wales, which is madeup partly of increases in the number of cases and partly by real increases in price.They conclude that the picture is "consistent with the hypothesis of supplier-in-duced demand".35

The ideas have now caught on in government circles. The previous LordChancellor, Lord Mackay found such an analysis "compelling".36 However, thetheory is far from proved. Alastair Gray stresses that "many other explanationswould also be consistent with these trends".37 It is worth looking in more detail atrecent trends within British criminal legal aid to see how far the incentives containedwithin a judicare scheme may be responsible for the over-supply of services.

The British experience

There are two main criminal legal aid jurisdictions in Britain. One covers Englandand Wales (with a population of around 50 million), while the other covers Scotland(with a population of 5 million). A third scheme in Northern Ireland covers only 1.5million people and is much cheaper.38 It will not be discussed here.

Both the Scottish and the English schemes are mature, well-funded, exclusivelyjudicare schemes. Legal aid is granted in almost all cases brought before jury courts.For proceedings before summary courts, both jurisdictions employ a similar"interests of justice" test. In 1966 the words of the statute were amplified by acommittee chaired by Mr Justice Widgery, which laid down what are now known asthe "Widgery criteria". Broadly, they allow legal aid where the accused may bedeprived of his liberty or livelihood, where the accused cannot participate in theproceedings or where the defence is particularly complex. In England and Wales

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they are administered by magistrates' courts and in Scotland by the Scottish LegalAid Board.

As we have seen, although the criteria have remained the same, they have beeninterpreted in different ways. Richard Young has coined the term "Widgery drift" tohighlight the way that English magistrates' courts have interpreted the same testmore and more generously.39 The courts have frequently been criticised for failingto exercise adequate control,40 but the same phenomenon seems to have happenedin Scotland, where the Board took over from the courts in a move intended tointroduce greater financial accountability. Thus between 1987-88 and 1994-95, thenumber of eligible cases going through the Scottish courts increased by around 8%but grants of summary legal aid increased by 47%.41 During this time the refusal ratekept more or less constant—at around 10% of applications—but solicitors appliedfor legal aid in more and more cases. This was linked to increased competitionwithin the solicitors' profession. As one research project commented that the:

growing attractiveness of the criminal law was responsible, according tosome of the solicitors interviewed, for producing "too many lawyers chas-ing too few criminals". This in turn might explain the emergence of whatsome described as "new kinds of firms playing new kinds of games andoffering new kinds of enticement for the custom of potential clients". Opentouting for clients has become quite commonplace in some cities andruthless poaching, as well as "pro-active soliciting", abound.42

Traditionally, both the Scottish and the English schemes have paid lawyers on atime-billed basis. The Scottish scheme continues to pay lawyers on the basis of"work actually and reasonably done".43 In England and Wales, the government hasgradually been introducing standard fees. They started for smaller crown court casesin 1986 but did not reach the magistrates' courts until 1993, after considerableopposition from the Law Society. The magistrates' system is a flexible one. After 10hours work a higher fees is paid, and all cases involving more than 17 hours are paidon a time-billed basis.

Over the last decade, concern has been expressed about yearly increases inaverage costs per case. The annual rises are given in Table 1. The table shows thatfor most years, Scotland's criminal cost rises have been in excess of the annual rateof inflation—often substantially in excess. England has also seen significant rises.The table suggests that the 1993 change to standard fees initially prevented theannual rise in criminal costs. However, here the figures may be misleading. Oneeffect of standard fees has been to encourage "case splitting" so that issues whichwould have been dealt with together as a single case may now be spJit into two cases,for which two standard fees may be claimed.44 This has inflated the number of billswhile depressing their average cost. The fee structure also allows "green form"advice to be claimed separately in the same case, with the result that the introduc-tion of standard fees has seen an increased use of the green form scheme in criminalcases. It is likely that the "true" average cost is now around £485, which means thatstandard fees have limited cost inflation rather than removed it.

Concern at rising costs has led both the Scottish and English Legal Aid Boards

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Table 1. Rise in the average cost per case of nominated solicitor work in Scotland, andof Magistrates' Court work in England and Wales

Year

1987-881988-891989-901990-911991-921992-931993-941994-951995-96

Overall rise

ScotlandCost

£450£538£565£626£753£831£893£971£969

(rise/fall)

( + 20%)(+5%)

(+11%)( + 20%)(+10%)( + 7%)( + 9%)(-0.2%)

115%

EnglandCost

£281£309£349£398£445£458£450£423£462

& Wales(rise/fall)

(+10%)(+13%)(+14%)(+12%)( + 3%)(-2%)(-6%)( + 9%)

64%

Inflation

8%10%6%4%1%3%3%2%

Sources: SLAB and LAB Annual Reports. Note that Scottish figures relate to bothsummary and jury cases while the English and Welsh figures are only for summarycases.

to commission studies analysing the constituent element of summary legal aid bills.45

Such studies are better at eliminating possible explanations than at tying downreasons for the rises. The Scottish study found no evidence that cases had becomemore complex: instead, fewer witnesses were interviewed and there were fewerdeferred sentences. In both jurisdictions the increase was not related to any singleitem but appeared to be spread across all heads of expenditure. Much of theincreases were in matters under the solicitor's control. There were, for example,more meetings with clients, more letters and phone calls, and more time spentwaiting at court.

Both studies agreed that two factors were significant. First, in both jurisdictions,a rise in costs was linked to an increase in the overall time taken to complete a case.Secondly, there had been increases in the amount of prosecution evidence disclosedin advance to defence solicitors. McConville et al.'s study of English criminaldefence lawyers found that their preparation of a case was often structured aroundthe prosecution evidence—with the most common form of interviewing being toread out the statement and ask for comments.46 It seems that the more writtenprosecution evidence received, the longer the interview and the more time solicitorsspend on preparation. On their own, however, these two changes did not seemsufficient to explain the whole of the increases.

Given the high relative cost of criminal defence in Britain and the sharp increasein cost, it is depressing to discover that much of it is of poor quality. McConville etal. provide a devastating critique of the way in which English criminal defence workis segmented and routinised.47 Instead of a single solicitor handling a whole case,cases were broken down into constituent parts. Often crucial areas, such as policestation advice and interviewing, were conducted by unqualified and poorly trainedparalegals. Meanwhile, solicitors spent their time in court conducting rou-

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tine advocacy, such as applying for adjournments. Both solicitors and their stafftended to assume that their clients were guilty, so that preparation was more oftengeared towards an eventual guilty plea than towards the establishment of innocence.

How far does the British experience show "supplier-induced demand"?

What light does this experience shed on the incentives contained within a judicaresystem? The theory of "supplier-induced demand" may be stated in both strong andweak forms. In its strong form, it has clear moral overtones. The suggestion is that"greedy" lawyers have been deliberately undertaking unnecessary work so as to gainan unfair share of public funds. There is nothing in the evidence to support suchmoral judgements. Private lawyers have not been shown to be either greedier ormore altruistic than other members of society. As discussed above, we have nostandard by which to judge whether the work undertaken was necessary. Indeed, theimplication of some of McConville et al.'s study is that too little work is undertakenrather than too much.

In its "weak" form the theory may be stated more neutrally. It hypothesises thatfluctuations in both the number of cases and the cost per case are affected bycompetitive pressures within the legal profession as well as by external change. Thishas some support in the evidence. There have been large increases in both thenumber and cost of cases which are only partly accounted for by outside factors.They have happened at a time of strong competition within the legal profession,when solicitors' income from conveyancing has been decreasing.

One may tentatively conclude that mature judicare criminal legal aid schemesin which the tariff is not tightly controlled have a tendency towards cost inflationwhen the supply of solicitors exceeds the other work available. When other work isplentiful, legal aid is unlikely to be attractive. During recessions, however, solicitorsare incentivised to carry out more legally aided work, either by taking on more casesor (where tariff systems allow) billing more work per case. They will not performmore than professional and institutional norms permit, but they will push against theboundaries of such norms. Although one cannot say whether or not the increasedwork is beneficial, policy makers worry about their lack of control. The professionrather than politicians are deciding to increase the public funds spent on criminallegal aid.

This tendency towards inflation can be limited by a firm system of standardfees. This appears to have been done successfully in the Netherlands. However,most standard fee systems allow for some additional payments in some circum-stances. As the English system shows, standard fees may limit cost rises rather thanprevent them.

If a criminal legal aid system is found to be suffering from some element ofsupplier-related inflation, what cures are available? Under the Conservative govern-ment, the English Lord Chancellor's Department proposed contracting with privatepractice. It intended to tackle the "incentive problem" by offering firms blockcontracts to provide specific legal services "for an agreed period and cost".48 This

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policy has been continued by the labour administration. Its most recent consultationpaper states that:

In future, all legal aid work, whether civil or criminal, will be restricted toproviders of legal services who have a contract with the Legal Aid Board.This will allow better control through the Board agreeing the price to bepaid in advance for the majority of cases. Contracting will allow theGovernment to get the most from the money that is spent and to spend iton those cases which most need it.49

Meanwhile, under the Conservative administration the Scottish Office thought thatin addition to contracting there was a limited place for salaried services:

In order to develop benchmarks for what criminal legal aid should cost, theGovernment considers that it would be useful for [the Scottish Legal AidBoard] to employ on fixed salaries a small number of solicitors to providecriminal legal aid on a pilot basis. The pilot would be restricted to one ortwo geographic areas, particularly urban areas, and the costs comparedwith the costs of traditional private sector provision.50

The proposal passed into law, but only after substantial parliamentary opposition.51

The critics succeeded in limiting the pilot to one office employing no more than sixsolicitors. The Scottish Office is required to monitor its operation and to report theresults to Parliament within three years. After five years, the project will lapse, unlessParliament provides further authorisation.

This policy has also been adopted by the Labour government, suggesting thatdepartmental priorities now supersede electoral politics. A pilot Public DefenceSolicitor Office is due to open in Edinburgh in October 1998, and the ScottishOffice are currently appointing independent researchers to monitor its operation.

So will these prescriptions solve the ills associated with purely judicare schemes?In order to ensure that the cure is not worse than the disease, it is necessary toconsider whether these alternatives also suffer from their own "incentive problems".I start by looking at contracting and then consider salaried services.

Contracting: an answer to the "incentive problem"?

Like judicare, the "contracted" model continues to use private practitioners, butprevents them from obtaining more money by doing more work. Instead, the priceis fixed in advance. Lawyers are paid a set fee, either for undertaking a given numberof cases or for undertaking all (or a proportion of) work in a given court.

In the USA, contracting has become an increasingly important way of providingindigent defence services. In 1982, only 7% of counties said they were usingcontracts. By 1986 this had increased to 11%. In 1992, the ABA reported that "thegrowth continues".52 Contracting now accounts for the majority of schemes inArizona, Idaho, Kentucky, New Mexico, North Dakota, Oregon and Washington.

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Contracts have been mainly used in small counties: those with populations ofless than 50,000. The emphasis has been on flat-fee contracts, without qualitycontrols, organised by local judges. Reports produced by the specialist SpangenbergGroup reveal a great variety in the way contracts are paid for, written and awarded.However, there are more examples of bad practice than good.53 Fees are oftenextremely low and monitoring is usually inadequate. In Louisiana, for example, outof 13 contract attorneys contacted, all worked under flat fees, with no limits on thenumber of cases they had to handle. Only one reported that information was kepton the number of cases dealt with.54

The ABA explains that a primary motive in the growth of contracting has beento control costs. Undue emphasis on cost control, however, has often led to poorquality:

Some of the earliest use of contracts for services was accompanied by theuse of bidding systems that encouraged bidders to compete to submit thelowest bid in order to obtain the stable, predictable and sometimes sizeableincome provided by winning a contract. Unfortunately, most of these earlycontracts were not accompanied by any criteria for awarding the contract,for monitoring performance, for dealing with any unanticipated rise or fallin caseload, or for contract renewal or termination. Instability in systemswas promoted from year to year, and even if the contractor remained thesame, market pressures frequently compelled the submission of lower andlower bids in order to keep the contract. The desire for economy in servicesall too often overrode constitutional obligations.

Results were uniformly dismal. Contracts were criticized in nationalstudies and several contractual programs failed to survive judicial scrutinyon constitutional grounds.55

Two studies into contracting were especially critical. In Clark County, Washington,contracts replaced a public defender scheme. Research found that contract lawyersput less effort into each case, advising fewer jury trials and more guilty pleas andmaking no use of investigators or expert witnesses. Contract lawyers were unable tohandle all the cases and additional costs were incurred in referring excess cases toprivate practitioners.56 A second study looked at two contract schemes whichreplaced assigned counsel schemes.57 It also found that the contractors spent lesstime per case. A major concern was that the firms had underbid. When contractswere renewed, firms were only prepared to carry on if rates were substantiallyincreased. Thus:

a firm will greatly underbid to obtain a contact to encourage the initiationof this type of system and to end the public defender or ordered assignedcounsel system that has been in use. After a period of time, the biddingprocess results in bids that cost the county more than its previous systemof representation.58

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Anecdotal evidence from the Spangenberg group suggests that the instability ofcontracting is a more general problem.59 For example, in Washington state:

One city official asked why a contract jumped from $33,000 to $80,000 inone year answered, "The lawyer wouldn't take the contract for the samemoney and no one else was available". One contract defender told us "theonly reason I take this contract is to fill gaps while I try to build a practice.You dump the contract as fast as you can. There's no money in thesecontracts".60

It is clear that without adequate quality controls, contracting, far from preventingincentive problems, simply induces the opposite effect. Lawyers are motivated to dotoo little work, and as a result quality suffers. Such perverse incentives are especiallyacute where contracted firms carry out both legal aid and normal paying work. Ifonce the contracted work has been completed, solicitors are able to earn moremoney by doing private work, there is a strong motivation to complete the contrac-ted work as quickly as possible.

This is not to say that it would never to possible to enter into a contract whichmaintained quality. Currie suggests that contracting may have a limited place as ananswer to specific delivery problems, such as those posed by sparsely populated ruralareas.61 Much of the criticism is directed at the way contracting programmes havefailed to introduce adequate quality controls, rather than rejecting contracts inprinciple.62 The ABA accepts some limited role for contracts provided qualitycontrols are adequate.63 It warns, however, that in order to ensure quality, therequirements of contracting are "surprisingly complex".64 Quality monitoring is stillin its infancy and there are few instances where it has been applied successfully.65

The salaried option

If both judicare and contracted schemes suffer from incentive problems, it is worthconsidering the incentives offered to salaried practitioners. Earlier, salaried lawyerswere described as influenced by a desire to get through their workload and go homeat the end of the day. The classic criticism of salaried work is that the lack of directprofit incentives leads to slothfulness. Staff offices may occasionally find themselvescarrying some "deadwood". For example, the JUSTICE investigation of the NewSouth Wales service found that "it is not easy to dispense with indifferent perform-ers; they are relegated to administration but that does involve some wastage ofpublic funds".66 However, in an efficiently run organisation, this is rarely a seriousproblem. In a mixed model, salaried services must prove themselves in comparisonwith private practice, and they can rarely afford to carry more than a few poorperformers. Unlike contracted models, where the lawyer who has completed acriminal case can turn to other more lucrative work, there is no positive financialincentive to skimp.

If there are incentive problems, they are more subtle. Most staff lawyers wish tobe thought of as doing a good job, and many will be seeking promotion within theorganisation. They will absorb the organisation's ethos and attempt to meet its goals.

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Table 2 . Percentage of convicted clients jailed by lawyer type

Burnaby ResearchBC evaluationSaskatchewan evaluationManitoba evaluation:

Breaking and enteringTheftAssaultOverall

Judicare lawyers

404232

35282523

Staff Lawyers

303014

19142512

Source: Department of Justice (1985) Patterns in Legal Aid (Ottawa,Department of Justice), pp. 35-37.

The danger comes if the organisational ethos is bureaucratic and government-ori-ented. Staff lawyers may come to see their task in terms of enabling the system tooperate more smoothly, rather than standing up for the rights of their clients.McConville et al.'s study reminds us that the bureaucratic necessity of making thesystem work affects all those involved in criminal justice, including defence lawyersin private practice. However, the problems may be more acute for those in staffoffices.

The Canadian evidence shows clearly that staff lawyers encourage their clientsto plead guilty more often.67 However, supporters of salaried services argue that thishas no effect on the final outcome. Four studies have shown that despite higherguilty pleas, the overall conviction rate of private practice and staff lawyers is notstatistically different. In the Burnaby experiment, both offices had conviction ratesof around 60% of cases.68 Three years later, the British Columbia evaluation of thewhole province came to the same findings.69 The Manitoba evaluation found similarconviction rates even when one controlled for prior record or by case type.70 Finallythe Saskatchewan evaluation, though less sophisticated, confirmed the picture.71

Furthermore, the emphasis on guilty pleas and the good relationship staffoffices enjoy with prosecutors means that staff clients are significantly less likely tobe imprisoned. Table 2 shows the difference in the proportion of clients sentencedto immediate imprisonment, according to each of the four studies. Again, althoughany one study can be criticised, taken overall, the conclusion is convincing: one isless likely to be imprisoned if one is represented by a staff lawyer.

The final evidence on quality comes from client satisfaction scores. Unfortu-nately, this provides less information. The problem with client satisfaction is thatthere is a startling sameness to the results, whatever the matter under discussion. InBritain, most customer satisfaction surveys have recorded scores between 80% and90% irrespective of whether the subject is prison food or luxury hotels. Peopledevelop expectations based on their experience of the service, and then judge their"satisfaction" according to their expectations. Thus Canadian surveys on clientsatisfaction with criminal legal aid have found that between 82% and 89% of clientsare satisfied, irrespective of whether the service was provided by a staff or private

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lawyer.72 The Burnaby project, for example, found little difference in views betweenthose who had used the staff project and those who used judicare solicitors: "ifanything, clients of public defence lawyers were marginally more satisfied with theservices they received".73

The Manitoba study also found that overall satisfaction rates were similar, with82% saying their case had been well handled. Under further analysis, however, therewere some differences: among those who perceived themselves as winning, privateclients were the more satisfied (with 98% thinking their case was well handled,compared to 92%). Among those who lost, the balance lay with staff lawyers (with65% of staff clients satisfied compared with 57%).74 This adds to the picturesketched out above, that staff lawyers are better at guiding the guilty through thesystem. It is possible, however, that for the innocent, private lawyers are seen asoffering a more supportive and adversarial service.

Concerns about salaried services

The Patterns report comments that "despite the consistency and strength of theseCanadian findings", the public, criminal defendants and scholars continue to believethat staff offices provide an inferior quality defence.75 No one has yet conducted theultimate study, controlling for all the critical variables and providing final proof. Sofar, the evidence that staff lawyers are able to provide a good a service as privatepractice (despite their lower costs and higher reliance on guilty pleas) is strong, butnot overwhelming. Sceptics will continue to have concerns that staff offices can tooeasily become overloaded and that they lack independence. For those who currentlycriticise private practice for being insufficiently adversarial, and who wish to see lessassumption of guilt, evidence that staff lawyers and private practice are as bad aseach other is hardly reassuring.

There is some basis in the concerns about overload. As staff become squeezedbetween increasing demand and fixed budgets, their workloads can mount. Officialfigures show that in Quebec between 1989 and 1992, the number of files per stafflawyer rose from 395 to 412.76 In Saskatchewan, where real expenditure has fallensince the early 1980s, public defenders have over 300 active criminal cases. Staffreport feeling inundated with work, with little time available for case preparation anddeveloping relationship with clients.77 On some objective measures of quality theyseem to be doing quite well—they see clients early, provide a continuous service andhave good outcomes. Nor does the 300 figure compare particularly badly with masscriminal practice in England. However, the ease with which the budget for full staffmodels may be controlled makes them particularly vulnerable to overload problems.

Independence is also an important issue. The Canadian Bar Association com-ments that much of the emphasis put on independence is mistaken: "it should beobvious that it is the fact of third-party payment, not the nature or form of thatpayment, that then creates the potential conflict when the paymaster is the publicpurse".78 McConville et al.'s research shows that even pure judicare schemes can bemotivated more by the bureaucratic managerialism than by adversarial values.However, public defenders do spend more time negotiating with crime prosecutors,

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and this creates its own potential for conflict. As David Wall comments, "whilst aclose relationship between staff lawyers and the prosecution may be efficient, thereis always a concern that staff lawyers will be tempted to internalise both the cultureand imperatives of the prosecution process".79 The Burnaby evaluation stresses thatthe independence of public defender schemes must be jealously guarded—or bothcrown prosecutors and courts will come to expect the service to fit in with their owninstitutional goals.80 If the primary goal of defence services is to protect the client,schemes should be measured on how well they do this. Other benefits to the justicesystem, in terms of more and earlier pleas, are incidental.

Choice

Finally, this brings us to the vexed question of client choice. Economists tell us thatallowing choice improves services. Many customers of criminal legal aid are repeatpurchasers. They have often been through the system before and they talk to otherswho have been through the system. They usually choose lawyers on the basis of pastexperience or recommendation, so they have information on which to base theirdecisions. One should guard against the snobbery which suggests that because mostclients are poor, ill-educated and socially disadvantaged they are incapable ofmaking rational choices. Instead, it is fair to assume that the poor know more aboutsurviving the system than the rest of us, and tend to be more adept at recognisingcondescension or disrespect. Limiting choice may also reduce a minority of clients'confidence in the scheme. In the Saskatchewan study, a third of staff clients thoughtthey had received a worse deal because they had not been able to use the privatelawyer of their choice.81

On the other hand, it would probably be a mistake to elevate client choice to thestatus of a constitutional guarantee. In interpreting article 6 of the EuropeanConvention on Human Rights, the Court has held that the accused's wishes shouldbe considered, but may be overridden on relevant and sufficient grounds.82

Traditionally, mixed schemes which allow clients a free choice have found thatonly a minority will chose a private lawyer. In a Quebec study, for example, 71%expressed a preference for a staff lawyer while 23% wanted a private lawyer.83 Theirstaff offices have never had any problems in getting enough clients: the numbers theyhandle are dictated only by their capacity. Client choice becomes more of a problemin establishing a new system in the face of entrenched opposition from local lawyers.Nancy Henderson reports that in British Columbia, for several years, under two-thirds of clients expressed a choice. However, since the scheme has been attemptingto introduce expanded staff services against the opposition of private practitioners,the rate of choice has "sky-rocketed". In urban communities where the private Barhas organised most effectively, it is now over 95%.84 It also becomes a problem incarrying out pilot projects, in which robust findings depend on the random alloca-tion of cases between models. The Scottish Office comments that in order to"ensure that the directly employed solicitors receive a sufficiently representativespread of clients and a sufficient workload" the Scottish Legal Aid Board "mayrequire powers to direct clients to their own solicitors".85

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The question of choice is a difficult one. Overall, my own view is that whereverpossible client choice should be respected. However, it is not an absolute require-ment. I would be prepared to see temporary suspensions in client choice if it wereto prove necessary to allow a mixed model to become established.

Conclusion

The evidence shows that all delivery models suffer from their own incentiveproblems. Judicare systems which link billing to the work done have a tendencytowards inflation whenever there is competition for work among lawyers. In Eng-land, the government proposed to curb this tendency by contracting with firms forfees which are agreed in advance. Such contracted systems, however, suffer from theopposite incentive problem—that firms will carry out too little work and that qualitywill suffer. The incentive to skimp on work is particularly acute where lawyers jugglethe demand of the contract against other private (and better paid) work. In theory,one may guard against such excesses by adequate quality monitoring, but workablequality systems for use against individual firms have yet to be developed. Thecriticisms levied at staff offices is that they may tend to adopt bureaucratic values,in which the object of exercise becomes the efficient processing of cases through thesystem rather than standing up for the rights of the accused.

There is no ideal model. The challenge is rather to find the right mix of services,which allows the strengths of one model to counteract the weaknesses of the other.What that mix should be will depend on where one starts from.

This article is written from the perspective of a system which is purely judicare.In Britain it would be neither possible nor desirable to replace most of privatepractice by mass salaried services. The up-front costs would be massive, and thepolitical opposition overwhelming. The experience of establishing the Crown Pros-ecution Service is hardly encouraging. From the first, the service was dogged byproblems: costs overran; too few lawyers could be found; morale was low; and theservice's critics drew attention to repeated blunders.86 The larger the service and thequicker it needs to be established, the greater the bureaucratic problems it willencounter.

Many of the benefits of having a salaried service can be gained from a quitesmall salaried element. The first advantage, as the Scottish Office points out, is thata salaried service allows policy makers to establish benchmarks of what criminalrepresentation should be costing. A problem with judicare schemes is that it isdifficult to establish a link between cost and value. Policy makers are faced with costincreases without having much idea of why they are taking place: are cases becomingmore difficult, or is value for money reducing? Good information about the cost andquality of salaried services serves as a point of comparison in fee negotiations.

The second benefit is the competition salaried services offer to the legalprofession. As Andrew Crockett, former Director of the Legal Aid Commission ofVictoria, stresses: "salaried services provide competitive stimulus to private practicewhich assists in the containment of costs and promotes continuous improvement inservice quality".87 His views are echoed by another director of the Victoria Com-

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mission: "a mixed system provides the tension of competition and keeps privatepractice on its toes".88 The Dutch Ministry of Justice is blunter in describing salariedbureaux as "an implied threat", to be used in fee negotiation with private practice.89

It is important that policy makers should have the option of expanding salariedservices—a factor which shifts the balance of power in pay negotiations from theprofession to government.

Meanwhile, the presence of private practice acts as a welcome check on staffoffice. As it will be forced to prove itself against private practitioners, its toleranceof "deadwood" will be minimal. A healthy exchange of staff between the salariedservice and the better private-practice firms will ensure that the service remains opento the rights of the defendant and will guard against the adoption of purelybureaucratic values.

Notes[1] Fremont, J. & Parent, S., Patchworking legal aid in times of financial constraint, in F.H. Zemans,

P.J. Monahan & A. Thomas (Eds) A New Legal Aid Plan for Ontario: Background Papers (NorthYork, Ontario, Osgoode Hall Law School, 1997).

[2] Speech to the Law Society Annual Conference, 18 October 1997.[3] In 1995-96, In England and Wales 6,191 solicitors' firms received payment for criminal represen-

tation (Legal Aid Board Annual Report, p. 103). In Scotland, 886 did so (figures provided byScottish Legal Aid Board).

[4] See for example, Zemans, F., Recent trends in the organisation of legal services (1986), 11 Queen'sLaw Journal, 26 and Paterson, A., Financing legal services: a comparative perspective, in D.L.Carey Miller & P.R. Beamont (Eds) The Option of Litigating in Europe (London, NationalCommittee of Comparative Law, 1993). For further discussion, see Paterson, A. & Goriely, T.,A Reader on Resourcing Civil Justice (Oxford, Oxford University Press, 1997).

[5] Department of Justice, Patterns in Legal Aid (Ottawa, Department of Justice, 1994) [2nd edn,1995].

[6] See the criticisms made by the Canadian Bar Association Standing Committee, Legal Aid DeliveryModels: A Discussion Paper (Ottawa, Canadian Bar Association, 1987).

[7] Gervais, P.P. & Cloutier, R., Evaluation of Legal Aid: Final Report (Quebec, Ministere de la Justice,1983).

[8] Sloan, R. Legal Aid in Manitoba: Evaluation Report (Ottawa, Department of Justice, 1987).[9] Brantingham, P.L., The Bumaby, British Columbia Experimental Public Defender Project: An Evalu-

ation Report (Ottawa, Department of Justice, 1981).[10] Department of Justice, op. cit., p. 52.[11] Currie, Albert, The concept of a multidimensional mixed service delivery model in Canadian

criminal legal aid, in F.H. Zemans, P.J. Monahan & A. Thomas (Eds), A New Legal Aid Plan forOntario: Background Papers (North York, Ontario, Osgoode Hall Law School, 1997).

[12] CBA, op. cit., p. x.[13] See, for example, Armstrong, S. & Verlato, F. (1980) Can legal aid afford private lawyers?, Legal

Services Bulletin, June 1980, p. 88.[14] See Spangenberg Group (1993) Indigent Defense Systems in Nebraska (West Newton, MA, Spangen-

berg Group, 1993).[15] Bureau of Justice Statistics, Criminal Defense for the Poor 1986 (Washington, DC, Department of

Justice Bulletin, 1988).[16] Spangenberg, R. & Beeman, M., Indigent defense systems in the United States (1995) 58(1) Law

and Contemporary Problems, 31. See also the various reports produced by the Spangenberg Group:Oklahoma Indigent Defense System Study (1988), Assessment of Indigent Defence System in Ohio

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(1991), Indigent Defense System in Nebraska (1993) and Maricopa County Indigent Defense System:Final Report (1993). All are published by the Spangenberg Group, West Newton, MA.

[17] American Bar Association, Standards for Criminal Justice: Providing Defense Services, 3rd edn (ABA,Washington, DC, 1992), Standard 5-1.2(a).

[18] Meredith, G.G., Legal Aid: Cost Comparison—Salaried and Private Lawyers (Canberra, AustralianPublishing Service, 1983).

[19] Ibid., p. 57.[20] Sloan op. c i t . , pp. 176-177.[21] The landmark case is Gideon v. Wainwright 372 US 335 (1963). See also Argersinger v. Hamlin 407

US 25 (1972) and In re Gault 387 US 1 (1967).[22] Goriely, T., Tata, C. & Paterson, A., Expenditure on Criminal Legal Aid: Report of a Comparative

Pilot Study of Scotland, England and Wales and the Netherlands (Edinburgh, Scottish Office, 1997).[23] Clinton Bamberger, first director of the American Legal Services Corporation, giving a statement

to the Committee on Legal Aid in the Netherlands: see (1989) 10 Rechtshulp 2, University ofLeiden.

[24] Swart, B. & Young, J., The European Convention on Human Rights and criminal justice in theNetherlands and the United Kingdom, in C. Harding et al. (Eds) Criminal Justice in Europe. AComparative Study (Oxford, Clarendon Press, 1995).

[25] Bureau of Justice Statistics, Criminal Defense for the Poor 1986 (Washington, DC, Department ofJustice Bulletin, 1988).

[26] See Ontario Legal Aid Plan, Annual Report 1995.[27] See Bridges, L., The professionalisation of criminal justice, Legal Action, August 1992, pp. 7-9 &

Goriely, T., The development of criminal legal aid in England and Wales, in R. Young & D. Wall(Eds) Access to Criminal Justice (London, Blackstone, 1996). Further information is given in theappendix to McConville, M., Hodgson, J., Bridges, L. & Pavlovic, A., Standing Accused: TheOrganisation and Practices of Criminal Defence Lawyers in Britain (Oxford, Clarendon Press, 1994).

[28] Goriely et al., op. cit.[29] JUSTICE, A public defender (London, JUSTICE, p. 30).[30] Ibid., p. 24.[31] ABA, op. cit., Commentary, p. 7.[32] See, for example, Gray, A., Fenn, P. & Rickman, N., Controlling lawyer's costs through standard

fees: an economic analysis, in R. Young & D. Wall (Eds) Access to Criminal Justice (London,Blackstone, 1996), & Rickman, N., The economics of cost-shifting rules, in A.A.S. Zuckerman &R. Cranston (Eds), The Reform of Civil Procedure (Oxford, Clarendon Press, 1995).

[33] Elaine Samuel, in particular, has argued against a model of man which is simply self-interested "inwhich interests are driven only by those interests, and which exists outside the social world whereinterests and actions are shaped and modified by institutions and organisations". Criminal legal aidexpenditure supplier or system driven? The case of Scotland, in R. Young & D. Wall (Eds), Accessto Criminal Justice (London, Blackstone, 1996).

[34] Bevan, G., Holland, A. & Partington, M., Organising Cost-Effective Access to Justice, Social MarketFoundation Memorandum No. 7, July 1994. See also Bevan, G., Has there been supplier-induceddemand for legal aid (1996) Civil Justice Quarterly 98. Wall, David S. Legal aid, social policy andthe architecture of criminal justice: the supplier induced inflation thesis and legal aid policy (1996),23, Journal of Law and Society 549; and Stewart, Hamish, An economic analysis of legal aid deliverymodels, in Ontario Legal Aid Review, A Blueprint for Publicly Funded Legal Services: BackgroundPapers (Toronto, Ontario Publications, 1997).

[35] Ibid., p. 11.[36] Speech to the Social Market Foundation, 11 January 1995, p. 12.[37] Gray, A., The reform of legal aid (1994) 10, Oxford Review of Economic Policy, 51 at p. 62. For

further discussion of the Social Market Foundation Report, see the Introduction to Paterson, A.& Goriely, T., A Reader on Resourcing Civil Justice (Oxford, Oxford University Press, 1997).

[38] According to the Northern Irish Lord Chancellor's Advisory Committee, in 1994-95, expenditureon criminal legal aid in Northern Ireland was only £6 per head of population: Lord Chancellor's

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Department Northern Ireland Court Service, Legal Aid Annual Report 1994-95, HC 470 (Belfast,HMSO, 1996).

[39] Young, R., Will Widgery do? in R. Young & D. Wall (Eds), Access to Criminal Justice (London,Blackstone, 1996).

[40] See, for example, National Audit Office, The Administration of Legal Aid in England and Wales, HC90 (London, HMSO, 1992), para 3.15.

[41] For a discussion of the figures, see Goriely et al., op. cit., p. 43.[42] Samuel, E. & Adler, M., unpublished research into criminal legal aid commissioned by the Scottish

Office Home and Health Department, 1994, and conducted by the Edinburgh Centre for SocialWelfare Research at the University of Edinburgh, p. 59.

[43] Criminal Legal Aid (Scotland) (Fees) Regulations 1989, reg. 7(1).[44] See Legal Aid Board, Annual Report 1993-94 (London, HMSO), p. 78. An example would be

where the defendant fails to answer to bail and is then charged with an offence under the Bail Act1976. Such offences are usually heard at the same time and alongside the main offence. Previously,work done in relation to the bail offence would be included on the same bill. Now, however, theregulations permit a separate standard fee to be charged.

[45] For Scotland, see Fleming, A. & Headrick, D., Summary Criminal Legal Aid: Analysis of Accounts1992/93-1993/94 (Edinburgh, Scottish Office, 1995). For England see Gray, A. & Fenn, P., Costsof Proceedings in Magistrates' Courts: A Research Report (London, Legal Aid Board, 1991).

[46] McConville, A., Hodgson, J., Bridges, L. & Pavlovic, A., Standing Accused: the Organisation andPractices of Criminal Defence Lawyers in Britain (Oxford, Clarendon Press, 1994), p. 14.

[47] Ibid.[48] Lord Chancellor's Department, Legal Aid—Targeting Need, Cm 2854 (London, HMSO).[49] Lord Chancellor's Department, Access to Justice with Conditional Fees: A Consultation Paper, March

1998.[50] Scottish Office, Crime and Punishment (Edinburgh, HMSO, 1996), para. 6.30.[51] Crime and Punishment (Scotland) Act 1997, §50.[52] ABA, op. cit., p. 45.[53] See, for example, Oklahoma Indigent Defense System Study (1988), Assessment of Indigent Defence

System in Ohio (1991), Indigent Defense System in Nebraska (1993) and Maricopa County IndigentDefense System: Final Report (1993). All are published by the Spangenberg Group, West Newton,MA.

[54] Study of the Indigent Defender System in Louisiana (West Newton, MA, Spangenberg Group, 1992).[55] Ibid., p. 46.[56] Lefstein, N. (1982) Criminal Defence Services for the Poor: Methods and Programs for Providing Legal

Representation and the Need for Adequate Financing (Washington, DC, ABA, 1982).[57] Houlden, P. & Balkin, S., Quality and cost comparisons of private bar indigent defense systems:

Contract vs. Ordered Assigned Counsel (1985), 76 Journal of Criminal Law and Criminology 176.[58] Ibid., at p. 199.[59] See, for example, Robert Spangenberg's 1990 statement to the Sub-Committee on Administrative

Law and Governmental Relations, US House of Representatives, regarding the re-authorization ofthe Legal Services Corporation, 9 May, Washington, DC).

[60] Spagenberg Group, Indigent Defense Services in Washington (West Newton, MA, SpangenbergGroup, 1989), p. 29.

[61] Currie, Albert, The concept of a multidimensional mixed service delivery model in Canadiancriminal legal aid, in F.H. Zemans, P.J. Monahan & A. Thomas (Eds) A New Legal Aid Plan forOntario: Background Papers (North York, Ontario, Osgoode Hall Law School, 1997). Currie drawson Canadian experience to argue for a "multidimensional" approach to delivery, using the modelbest suited to the particular problem in hand. He cites a couple of successful contacting schemesin Manitoba: one in a particularly sparsely populated area, and one in Winnipeg to provide youngoffenders with representation. Both schemes were small scale. In the rural area, only one firm wascontracted. For juvenile offenders, firms were willing to offer services almost as a loss leader, onthe grounds presumably that if you get them young they will be with you for life.

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[62] See Nelson, M.A., Quality control for indigent defense contracts (1988), 76 California Law Review1147 and Spangenberg, R. & Tarsy, A., Indigent Defense Services, prepared for the ABA BarInformation Program (West Newton, MA, Spangenberg Group, 1992), at p. 12.

[63] ABA, op. cit., Standard 5-3.1.[64] Ibid., p. 51.[65] The Legal Aid Board's franchising scheme uses "transaction criteria", allowing auditors to check

files against a checklist of questions, to make sure that the main issues have been covered.However, the process is time-consuming and expensive, and can only be used against a smallsample of files. Outcome measures can usefully be applied against large sample sizes (where forexample one is comparing all salaried offices with all judicare lawyers). But it remains to be seenwhether they can be used successfully against individual firms. As discussed below, client satisfac-tion scores tend to produce undifferentiated responses.

[66] JUSTICE, op. cit., p. 30.[67] See Department of Justice, op. cit., p. 34.[68] Brantingham, op. cit.[69] Brantingham, P.L. & Brantingham, P.J., An Evaluation of Legal Aid in British Columbia (Ottawa,

Department of Justice, 1984).[70] Sloan, op. cit.[71] DPA Group, Evaluation of Saskatchewan Legal Aid (Ottawa, Department of Justice, 1988).[72] CBA, op. cit., p. 87.[73] Brantingham, op. cit., p. 10.[74] Sloan, op. cit., p. 84.[75] Department of Justice, op. cit., p. 36.[76] Fremont & Parent, op. cit., p. 133.[77] DPA Group, op. cit., p. 260.[78] CBA, op. cit., p. 207.[79] Wall, op. cit., p. 562.[80] Brantingham, op. cit., p. 11.[81] DPA Group, op. cit., p. 256.[82] Croissant v. Germany (1992) 16 EHRR 135. For discussion, see Ashworth, A., Legal aid, human

rights and criminal justice, in R. Young & D. Wall (Eds) Access to Criminal Justice (London,Blackstone, 1996). Fremont and Parent argue from a Canadian perspective that freedom of choiceshould not be considered as a fundamental value: Fremont & Parent, op. cit.

[83] CBA, op. cit., p. 134.[84] Henderson, Issues concerning legal aid and some British Columbia experiences, in F.H. Zemans,

P.J. Monahan & A. Thomas (Eds) A New Legal Aid Plan for Ontario: Background Papers (1997).[85] Scottish Office, op. cit., para. 6.31.[86] An official account of the problems is given by the National Audit Office, Review of the Crown

Prosecution Service, HC 345 (London, HMSO, 1989).[87] Crockett, A., Salaried Legal Aid Services (Melbourne, Legal Aid Commission of Victoria, 1994), p.

17.[88] Ibid., p. 17.[89] See Goriely, T., Legal aid in the Netherlands: A view from England (1992) 55 Modern Law Review

803. In the Netherlands, bureaux specialise in poverty rights and do not undertake criminalrepresentation.

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