Quality in advocacy

Ten days ago the Legal Aid Agency (LAA) announced a delay to the outcome of the criminal legal aid duty provider tender. On the very same day the Ministry of Justice proposed a review of criminal advocacy with a stated intention to curb solicitors instructing advocates in their firms.  

Extreme anxiety about their future, coupled with the intensity of competition for work in the higher courts, imminent assessment under the Quality Assurance Scheme for Advocates (QASA), and another 17.5% cut in fees, are already taking their toll on solicitors who have dedicated their careers to serving the justice system.

In a letter to the lord chancellor I highlighted our dismay at both the timing and content of what is being considered. Our formal response to the consultation will be robust.

The MoJ review invites views on the proposed introduction of a panel scheme, a statutory ban on referral fees and the introduction of stronger measures to ensure client choice and prevent conflicts of interest. One measure suggested is ‘restricting the ability of defence firms to instruct in-house advocates in publicly funded criminal cases’. This is presented as both a question of ensuring client choice, and of avoiding conflicts between the solicitor’s financial interests and the client’s best interests.

Solicitors already have an obligation to act in the best interests of their clients, which means advising on a range of issues, including advocacy. There should, therefore, be nothing to stop clients selecting an in-house advocate and in such circumstances a conflict of interest would not arise.  

The overwhelming bulk of advocacy is carried out by solicitors. Over 11,000 appear in the criminal courts as a matter of daily routine and most solicitor higher-courts advocates have been practising in the magistrates’ courts for some time. Many have had significantly greater on-the-job experience than junior barristers. Solicitors provide vital support and continuity at a time of stress and anxiety for clients. They have a first-hand understanding of an individual’s previous history and any ongoing matters. It can be extremely beneficial to have a solicitor-advocate on the case, which is why many clients choose to instruct a solicitor-advocate to represent them. The client also saves time by only having to brief one lawyer.  

Notably, the consultation paper fails to mention the Public Defender Service (PDS). Since the issue is presented as giving clients an informed choice, it is difficult to see how the MoJ could argue that it should not apply to the PDS as well.

If client choice is the government’s concern, it is surprising that the paper makes no mention of the impact of the practice of late returns of briefs, where the client’s choice is entirely superseded by that of the clerk to chambers. If the concern is about conflicts of interest, one would expect that such a serious allegation would be accompanied by evidence. It is a fundamental issue of professional conduct that solicitors must not allow their personal financial interests to colour their advice to their clients. No evidence is provided to justify the scurrilous accusation that solicitors are allowing their own interests to change their advice to clients.

We support proportionate measures to enhance and assure quality of advocacy. We will examine and question proposals for the introduction of a Crown court panel scheme. It is unclear what a panel would achieve that QASA would not.   

Referral fees are already prohibited under our rules. We would need to consider what measures are being proposed to identify ‘disguised’ referral fees and whether they might have unforeseen consequences or introduce unnecessary bureaucracy.

Consolidation aimed at achieving efficiency savings that successive lord chancellors have insisted on will be much harder to achieve, since a prohibition on own-firm instructions would seriously undermine the financial viability of firms, whose business model is built on giving clients the option of using an in-house advocate.

Jonathan Smithers is president of the Law Society