The question has arisen as part of a new scheme by the Legal Aid Board to award franchises, or contracts, to practices that meet approved standards. In return the board will delegate some of its powers to the firms and ensure that they are paid more quickly - an important benefit in a system that has been dogged by tardy payments.
Proponents of the scheme say it will also benefit clients, as it will give them an indication of which practices the board considers to be competent and efficient. Stephen Orchard, chief executive of the board, said: 'Franchising is not a guarantee. What we intend it to be is an assurance that by and large you are going to get a better service from a franchised firm than from one that is not.'
But what standards should the firms be asked to meet? Earlier this month, in an attempt to settle this issue, the board produced a detailed breakdown of the tasks that solicitors should undertake if they wish to have a chance of one of the franchises. For instance, a firm representing the defendant in a criminal case should record at least 50 separate pieces of information, ranging from the client's name and address to the previous convictions of any co-defendants. Solicitors applying for franchises would then have to disclose a random selection of their files to staff of the board, who would judge whether the tasks (or 'transaction criteria', as they are officially known) have been satisfactorily completed.
Systematic failure to record the required information could result in the loss of a franchise, with heavy financial penalties. Some lawyers believe that in the long run, firms that fail to obtain franchises could go out of business.
In his forward to the transaction criteria, John Pitts, chairman of the board, says: 'The assessment of the quality of an intangible, professional service . . . is a difficult yet important task.' And so it has proved.
The Law Society is cautious, saying that the criteria are 'interesting' but unproven. More time is needed before lawyers can judge whether the board's method is effective, the society believes.
Other solicitors are more blunt in their assessment, saying that the criteria are an inadequate tool for measuring the quality of their work. Colleagues will be tempted to think that if they have fulfilled all the tasks demanded by the board, they will be serving their clients well. This is not necessarily so, they say.
In an article to be published next month in the magazine Legal Action, Roger Smith, director of the Legal Action Group, analyses the transaction criteria for a bail application. He says they are 'skimpy', pointing out, for instance, that they fail to include a requirement for solicitors to note any ties that their clients may have with the local community. The Law Society's Guide to Good Practice offers a 'much more satisfactory approach', he says.
Further, he says, the criteria will greatly increase the amount of red tape with which solicitors have to struggle, possibly forcing them either to spend less time with clients or to charge more for legal aid work.
Mr Orchard is careful not to inflame passions any further, saying the transaction criteria will be used 'tentatively' when franchising comes into force in July. At first, firms that fail to record the required information may nevertheless succeed in their applications for franchises. Fears have been exaggerated, he said, and the criteria were not intended as a comprehensive guide on how to be a good lawyer. They would, however, provide a means of uncovering bad or sloppy solicitors. 'Without these specific pieces of information, the job won't be done competently,' Mr Orchard said.
Richard Moorhead, a researcher at Liverpool University involved in the team that drew up the criteria, said: 'We are not saying that all solicitors should do is follow the check-list. They should be prepared to collect information in addition to what we have here.'
There would be other measures of a firm's quality when deciding whether it deserved a franchise. These include an assessment of the way it is managed, a study of its applications for legal aid, a check on how much it charges for its services and a questionnaire for clients.
Taken together, these would offer a guide to the best firms, Mr Moorhead said. 'I would certainly feel much happier going to a franchise firm. At the moment, clients have very little idea of which firms to choose.'
Nevertheless, concerns remain over the effect of the transaction criteria. Some observers believe that in the long run, ministers might seek to use the criteria as a way of introducing competitive tendering to save money - solicitors meeting the minimum standards demanded by the board would be invited to bid for a contract to carry out legal aid work, with the cheapest offer winning the franchise. Some lawyers fear that this would restrict rather than improve the choice for clients.