The LAA have very kindly published the 2017 Standard Crime Contract on the internet, which means it is possible to see exactly what the specifications are for the employed status of duty solicitors and also any restrictions on crime supervisors. Please see the extract in bold regarding ghost duty solicitors and also the new requirements for each duty solicitor working with a firm.
Duty Solicitors – the regulations applicable to them:
Designated Fee Earners
2.32 You are required to have a document that identifies all staff, their current jobs, and lines of responsibility. This must cover all Designated Fee Earners and must show:
(a) whether the fee-earner is a Duty Solicitor, Solicitor, an Accredited Representative, a Probationary Representative or other non-Solicitor personnel;
2.33 Where any Designated Fee Earner is a Duty Solicitor, you must maintain evidence of compliance with the Duty Solicitor rules in Section 6.
2.34 Where a Designated Fee Earner is an Accredited Representative, you must maintain a record of the evidence of compliance with the requirements needed to maintain Accredited Representative status.
2.36 You must designate all fee earners who regularly undertake Contract Work under this Contract for you. For the purposes of designation only, when identifying fee-earners, you may disregard any fee-earning work (which may be Contract Work) which is basic or routine, such as the completion of standard forms, making routine telephone calls, and dispatching standard letters. In addition, you do not have to designate staff who only occasionally undertake a limited amount of work as less than three hours a month.
2.37 You must designate all Supervisors that carry out Contract Work, Filex Supervisors, Duty Solicitors, Accredited Representatives and Probationary Representatives employed by you.
2.38 You may designate fee-earners not employed by you but whom you instruct regularly.
Percentage of Contract Work that must be performed by Designated Fee Earners
2.39 In relation to Contract Work we require:
(a) 80% of instances of Police Station Advice and Assistance (both attendances and telephone advice) to be conducted by Designated Fee Earners; and
(b) 50% of instances of Advocacy Assistance or Representation at the magistrates’ court to be conducted by Designated Fee Earners.
2.40 We will assess compliance with Paragraph 2.39 over any period of not less than three months (but not exceeding 12 months). However, we will not do so until the number of equivalent cases undertaken or reported is at least 20.
2.41 Your Offices are specified in your Schedule. Your Schedule will confirm if you are eligible to undertake Duty Solicitor work from each specific Office.
2.42 Each Office specified in your Schedule must be located in England or Wales.
Use of Agents, Counsel and Approved Third Parties
4.11 You may instruct Agents, Counsel or Approved Third Parties to carry out or assist with Contract Work where you are satisfied that it is in the interests of your Client to do so, subject to your compliance with Clause 3.
4.12 You may not entrust an entire Matter or Case to Agents or Counsel save for Police Station Advice and Assistance Matters, where you may as provided in this Contract, subject to your compliance with Clause 3 of the Standard Terms.
4.13 Where you instruct an Agent or Counsel you may Claim payment for the work as if you had carried it out directly in accordance with the terms of this Specification. Where you instruct an Agent or Counsel to carry out services which are covered by a Fixed Fee, Standard Fee or Graduated Fee, any fees or costs related to your use of the Agent or Counsel will be included in the Fixed Fee, Standard Fee or Graduated Fee and may not be claimed separately. This Paragraph does not apply to Assigned Counsel.
4.14 It is your responsibility to pay the Agent’s or Counsel’s fees directly, out of the amount you receive from us by way of the Fixed Fee, Standard Fee or the Graduated Fee. The fee which you agree to pay the Agent or Counsel may not be included in your calculation of costs to determine whether a case is claimable as an Escape Fee Case. This Paragraph does not apply to Assigned Counsel.
4.15 You must not rely on the use of any Agent or Counsel as evidence of satisfying any of the Service Standards in this Specification.
Solicitors with higher court advocacy rights
4.16 A Solicitor with higher court advocacy rights may be instructed to give an opinion or to perform advocacy.
4.17 A Solicitor with higher court advocacy rights instructed by you to give an opinion must be from a different organisation from your instructing Solicitor unless undertaking advocacy only. The use of such a Solicitor who must not be a partner in, or employed by, or a consultant to your organisation will ensure that any opinion obtained is independent and objective (in the same way that external Counsel’s opinion would be).
6. Duty Solicitor Provisions Overview
6.1 The obligation to undertake work on Duty Schemes is yours and not that of the individual Duty Solicitor(s) Engaged by you.
6.2 Your Schedule will list the Duty Schemes on which you may undertake Duty Solicitor work. Subject to Paragraph 6.32, to maintain Duty Scheme membership you must, at all times during the Contract Period, have at least one Duty Solicitor registered on each Duty Scheme you are a member of and provide Duty Solicitor services on that Scheme. If you cease to meet this requirement we will ordinarily remove your Duty Scheme membership from any affected Scheme.
6.3 You cannot apply to join any Duty Schemes during the Contract Period unless we invite you to apply. Invitations will only be issued where there is a reduction in Scheme membership necessitating such an invitation or as a result of amendment to Scheme boundaries in accordance with Paragraph 6.60.
6.4 The geographical location of your Office(s) determines which Scheme(s) you are eligible to be a member of. The Duty Solicitor Postcode Tool on our website sets out the geographical ambit of each Scheme by reference to postcodes so that you can determine which Scheme(s) you are eligible for by virtue of each Office.
6.5 The number of Duty Solicitors Engaged by you determines the number of Duty Slots which are allocated to you on relevant Schemes. The number of Duty Slots you are allocated is also dependent on the number of Duty Slots available on that Scheme, and on the number of other Providers who have also joined and whose Duty Solicitors have applied to do Duty Solicitor work.
6.6 Your Duty Solicitors may only apply for membership of Schemes from a single Office.
6.7 If you are a member of a Scheme, your Duty Solicitors are entitled to undertake Back-up work from the DSCC on that Scheme and also, if required, on neighbouring Schemes on which they may not be a member.
6.9 You must ensure that all Duty Slots allocated to you (in respect of both Police Station and magistrates’ court work) are covered by you. If you are unable to meet this obligation, you must notify us that you no longer require the Slot so that we may reallocate it to another Provider.
6.10 We will use Back-up to deploy Duty Solicitors from neighbouring Schemes if membership of a particular Scheme becomes so reduced during the Contract Period that the Scheme becomes unviable. In these circumstances, a consultation in accordance with Paragraph 6.58 will follow where we will consider increasing the postcode area to increase Scheme membership.
Police Station Duty Scheme membership: London CJS Area
6.11 Duty Solicitors undertaking Duty Solicitor work from an Office in the London CJS Area must join the Duty Scheme (as set out in the Duty Solicitor Postcode Tool) related to the London Borough in which that Office is situated.
6.12 A Duty Solicitor may also apply to join the additional Duty Scheme(s) linked (as set out in the Duty Solicitor Postcode Tool) to the London Borough in which the relevant Office is situated.
Magistrates’ court Duty Scheme Membership; London CJS Area
6.13 Duty Solicitors undertaking magistrates’ court Duty Solicitor work from an Office in the London CJS Area must join the Duty Scheme (as set out in the Duty Solicitor Postcode Tool) related to the London Borough in which that Office is situated.
6.14 A Duty Solicitor may also apply to join a maximum of one additional magistrates’ court Duty Scheme linked (as set out in the Duty Solicitor Postcode Tool) to the London Borough in which the relevant Office is situated and any associated youth court Duty Schemes.
Competence Requirements for becoming a Duty Solicitor
6.17 You must notify us, using form CRM12, of the Office from which your Duty Solicitor(s) work. You may only notify us of one such Office for each Duty Solicitor. This rule does not prevent a Duty Solicitor from being used as an Agent or a locum by another Provider or undertaking Contract Work for you from any other Offices you may have.
6.18 Your Duty Solicitors must serve on the Police Station and the magistrates’ court Schemes, for which you are a member.
6.19 Your Duty Solicitors must also serve on Virtual Court Duty Schemes for which you are a member.
6.20 Your Duty Solicitors (and any Accredited Representatives used by your Duty Solicitors) must not be special constables.
Employment status of Duty Solicitors Engaged by you
6.21 Duty Solicitors may be either your employees or self-employed persons or seconded from another organisation etc, however, they must in all cases be Engaged by you and comply with the requirements of Paragraphs 6.22 6.25.
Engagement of Duty Solicitors and continued entitlement to retain Duty Slots and deploy Duty Solicitors
6.22 Your entitlement to deploy Duty Solicitors to undertake Duty Solicitor work and retain Duty Slots issued to you in their name under this Contract is dependent on them each:
(a) undertaking at least two hours CPD annually on issues relevant to the law, practice and procedure in the Police Station or magistrates’ courts;
(b) undertaking a minimum of 36 court hearings and Police Station attendances in each rolling 12 month period to include:
(i) a minimum of 12 magistrates’ court hearings;
(ii) a minimum of 12 Police Station attendances (excluding telephone advice); and
(iii) a further 12 hearings or attendances which may be made up of any combination of:
i. Crown Court hearings;
ii. magistrates’ court hearings;
iii. Police Station attendances; or
iv. magistrates’ court Duty Slots including the representation of at least one client
with at least three magistrates’ court or Crown Court hearings and at least three Police Station attendances in each rolling three month period;
(c) continuing to undertake Duty Solicitor work generally by, in each rolling 12 months period, undertaking Police Station Duty Solicitor attendances (excluding telephone advice) on no less than four Duty Slots allocated by us in that Duty Solicitor’s name.
6.23 Subject to Paragraph 6.24, all Duty Solicitors you use to obtain Duty Slots must undertake a minimum of 14 hours’ Contract Work for you per week from the Office for which those Duty Slots have been obtained.
6.24 The 14 hours’ requirement in Paragraph 6.23 will be measured on a rolling monthly basis to accommodate different working patterns.
6.25 You may retain Duty Slots allocated in respect of Duty Solicitors where the named Duty Solicitor is:
(a) absent as a result of a period of maternity or paternity leave up to a maximum of 12 months from the date of absence provided you have not been informed they do not intend to return; or
(b) absent as a result of period of sick leave up to a maximum of six months from the date of first absence.
Duty Solicitors joining your organisation
6.35 If you wish to add new Duty Solicitors to Schemes you are a member of you must apply for them to undertake Duty Solicitor work by completing a
CRM12 form for each of them by the deadline notified by us on our website. A properly completed CRM12 will allow that Duty Solicitor’s name to be entered on the Rota or Panel of the Schemes you are a member of and will result in you being allocated Duty Slots on that Scheme when Rotas are next issued.
6.36 New Duty Solicitors who are Engaged by you and for whom you submit a CRM12 form may undertake Back-up work and cover Duty Slots already allocated to you, be included on the subsequent Rota or Panel (if the CRM12 form is received before the cut off date for the next Rota) or be added to the list of Panel members (if the Scheme is a Panel Scheme) only once you have received confirmation we have approved their application.
6.37 You may not submit a CRM12 form or seek to obtain Duty Slots in respect of Duty Solicitors who:
(a) will not be Engaged by you during the Rota period or who do not meet the competence requirements in Paragraphs 6.15 to 6.20; or
(b) are not habitually resident in England and Wales unless you have received our express written approval to submit a CRM12 form; or
(c) notwithstanding any other provision in this Contract, receive a payment for the use of their details on a CRM12 form for the purpose of obtaining additional Slots but are not Engaged and integrated into your organisation and used to deliver Contract Work. Such persons are commonly referred to as “ghosts”; or
(d) are temporary staff engaged to cover periods of maternity or paternity leave of a Duty Solicitor of up to 12 months (because you will have access to Slots allocated in respect of that Duty Solicitor on maternity or paternity leave); or
(e) are temporary staff engaged to cover periods of sick leave of a Duty Solicitor you have used to obtain Duty Slots whilst you have the benefit of Duty Slots issued their name.
Any breach of this Clause 6.37 is a Fundamental Breach. You are not eligible to receive payment for any work undertaken on Slots obtained as a result of such a breach and payments made as a result shall be an “overpayment or mispayment” as defined in Clause 14.
Crime Supervisors – this is an extract from the contract of anything we think is relevant.
2.2 Subject to Paragraphs 2.27 and 2.28, if you cease to meet the requirements of Paragraph 2.1 your right to undertake Contract Work in the relevant Class of Work will cease. Any breach of Paragraph 2.1 shall be a Fundamental Breach.
2.3 Where your Schedule authorises you to undertake Contract Work in the Criminal Investigations and Criminal Proceedings Classes of Work; you must Employ a minimum of one Full Time Equivalent Supervisor who meets the supervisor standards set out in Paragraphs 2.20 to 2.21.
2.4 Where your Schedule authorises you to undertake Contract Work in the Prison Law Class of Work; you must Employ at least one Full Time Equivalent Supervisor who meets the supervisor standards set out in Paragraphs 2.22 to 2.25.
2.5 Where you Schedule authorises you to undertake Contract Work in the Appeals and Reviews Class of Work only; you must Employ at least one Full Time Equivalent Supervisor who meets the supervisor standards set out in Paragraph 2.26.
2.6 Supervisors who qualify may act as a Supervisor for more than one Class of Work.
2.7 Supervisors must at all times during their working hours (except as required for the proper performance of their role (such as attending court and/or Clients) work from one or any combination of your Offices.
2.8 Supervisors may act as a Supervisor at a maximum of two of your Offices.
2.9 Save in respect of Prison Law which is the subject of Paragraph 2.10 an individual may not act as a Supervisor for you if they act as a Supervisor for another Provider.
2.10 A Prison Law Supervisor may also act as a Supervisor for a maximum of one other Provider.
2.12 A Supervisor may delegate functions to an employee who does not meet all the Supervisor standards in this Specification to act as their deputy Supervisor. However, the Supervisor must continue to supervise the deputy Supervisor and have a training and development plan to provide the necessary skills and experience for the deputy Supervisor to become a Supervisor in future.
2.13 Your Supervisor(s) must meet the Supervisor standards in this Specification at the time of being appointed as Supervisor and continue to do so in any 12 month period thereafter.
2.15 All Supervisors must meet one of the following supervisory skills standards:
(a) have supervised at least one Full Time Equivalent Designated Fee Earner or Caseworker in the relevant Class of Work for at least one year in the previous five year period; or
(b) have completed such training covering key supervisory skills we approve from time to time in the previous 12 month period; or
(c) have achieved Level 3 or higher National Vocational Qualification NVQ standard (or any replacement from time to time) in supervising in the previous five year period.
The supervision standard in this Paragraph 2.15 will be measured as at the time a person becomes a Supervisor and at any point during the Contract Period when we request confirmation of the supervision standard.
2.16 A Supervisor must ensure that all persons performing Contract Work under this Contract have a professional legal qualification or, where a professional legal qualification is not required in respect of Contract Work, that such persons perform a minimum of 12 hours of Contract Work each week in the relevant Class of Work.
2.17 Arrangements must be in place to ensure that each Supervisor is able to conduct their role effectively including but not limited to the following:
(a) designating time to conduct supervision of each Designated Fee Earner or Caseworker;
(b) designating time to be in Offices where Contract Work is being conducted; and
(c) ensuring that the level of supervision provided reflects the skills, knowledge and experience of the individual Designated Fee Earner or Caseworker.
2.18 Each Supervisor must conduct file reviews for each Designated Fee Earner or Caseworker they supervise. The number of file reviews must reflect the skills, knowledge and experience of the individual. The Supervisor must record the outcome of file reviews, together with the details of corrective action taken (if any).
2.19 Where a Designated Fee Earner or Caseworker undertakes Contract Work in a location other than where their Supervisor is based, the Supervisor must conduct, as a minimum, face-to-face supervision at least once per calendar month.
Supervisor qualification: Criminal Investigations and Criminal Proceedings
2.20 Each Supervisor must during the Contract Period, have in the previous 12 months undertaken at last 350 hours of direct casework which may include direct (documented) supervision. Where a Supervisor works part-time this requirement is to be read as 1050 hours of direct casework which may include direct (documented) supervision in the previous five years.
2.21 All Supervisors must have the following:
(a) CLAS; and
(b) a current non-conditional practising certificate for the previous three years; and
(c) at any time during the Contract, in the previous 12 months have undertaken a minimum of six Police Station Advice and Assistance cases (of which no more than two can be Police Station Telephone Advice where there is no subsequent Police Station attendance); and
(d) at any time during the Contract, in the previous 12 months have undertaken:
(i) a minimum of 20 magistrates’ court Representations and advocacy (which may include Representation of a Client during a magistrates’ court duty session with one session counting as one Representation only); or
(ii) undertaken a minimum of 10 magistrates’ court Representations and advocacy and five Crown Court Representations and advocacy.
Supervisor qualification: Prison Law
2.22 Each Supervisor must during the Contract Period, have in the previous 12 months undertaken at last 350 hours of direct casework which may include direct (documented) supervision. Where a Supervisor works part-time this requirement is to be read as 1050 hours of direct casework which may include direct (documented) supervision in the previous five years.
2.23 To substitute another Prison Law Supervisor under this Contract, your new Prison Law Supervisor must have in the previous 12 months undertaken at last 350 hours of direct casework which may include direct (documented) supervision. Where a Supervisor works part-time this requirement is to be read as 1050 hours of direct casework which may include direct (documented) supervision in the previous five years and meet the requirement in Paragraph 2.24.
2.24 All Supervisors must have, in the previous 12 months, undertaken for you a minimum of four Representations for four Clients before the Parole Board or the Independent Adjudicator/Prison Governor.
2.25 A Supervisor in the Prison Law Class does not have to be legally qualified. However, he or she must meet the Supervisor standards in this Specification.
Supervisor qualification: Appeals and Reviews
2.26 Each Supervisor must:
(a) have held a current non-conditional practising certificate for the previous three years; or
(b) during the Contract Period, have in the previous 12 months undertaken at last 350 hours of direct casework which may include direct (documented) supervision. Where a Supervisor works part-time this requirement is to be read as 1050 hours of direct casework which may include direct (documented) supervision in the previous five years
Temporary Supervisor absence
2.27 If your Supervisor is for any reason temporarily unable to act as such you may for a period of up to six weeks, either:
(a) nominate an employed Designated Fee Earner or Caseworker who does not meet all the Supervisor standards set out in this Section to supervise; or
(b) nominate an external Supervisor to supervise.
2.28 If you estimate that your Supervisor may be unable to supervise for more than six weeks, or following completion of the six week temporary period described in Paragraph 2.27 the Supervisor is not able to resume Supervision, you must immediately inform us and we will decide at our discretion what appropriate action to take.
Minimum Supervisor ratios
2.29 A Supervisor who only undertakes supervision in the Prison Law Class of Work only may supervise a maximum of six Designated Fee Earners or Caseworkers.
2.30 A Supervisor who undertakes supervision in the:
(a) Criminal Investigations and/or Appeals and Reviews Classes of Work; or
(b) Prison Law and any other Class of Work
may supervise a maximum of four Designated Fee Earners or Caseworkers.
2.31 Individuals who only undertake administrative tasks (which you may not claim for under this Contract) or only conduct triage (early diagnosis of the Client’s overall legal problem(s)) prior to a matter being opened are not Caseworkers for the purpose of these ratios or otherwise.