Our Response to the Ministry of Justice Advocacy Consultation
In
response to the proposals that in-house advocacy should be legislated against,
Wainwright and Cummins will say the following:
Q1: Do you agree that the government should
develop a Panel scheme for criminal defence advocates, based loosely on the CPS
model already in operation? Are there particular features of the CPS scheme
which you think should or should not be mirrored in a defence panel scheme?
In relation to the suggestion of a defence panel scheme, we observe that
CPS cases are not briefed on a publicly funded basis (the relationship
between client and advocate is akin to private instruction) In addition there
is never an issue of an advocate having to switch from a privately instructed
basis to public funding. For example, we may be met with the uncomfortable
situation when a client could no longer afford to pay for a case privately, and
then be forced to apply for public funding. Should the identified advocate then
not be a certain level on the panel, we would be met with the difficult
position of having to advise the client to seek representation elsewhere, thus
depriving the client of continuity of representation. We believe further
investment in external training could answer any concerns over an advocate’s
ability. We are unclear as to what proportion of cases the scheme will affect
and how the panel is to be administered. How does this scheme marry up with
QASA? How much will it cost to administer and who will pay?
Q2: If a panel scheme is to be established,
do you have any views as to its geographical and administrative structure?
We believe that a panel scheme should be national. In terms of
administrative structure we would suggest an independent panel with
representatives from both sides of profession and judiciary. Involving the LAA
will create a perceived conflict of interest. By expanding or contracting the
panel to influence competition or penalize or promoting those whose
administration of the scheme either appeals to or frustrates the LAA.
Q3: If we proceed with a panel, do you agree
that there should be four levels of competence for advocates, as with the CPS
scheme?
We have no comment on this question.
Q4: If we proceed with a panel, do you think
that places should be unlimited, limited at certain levels only, or limited at
all levels? Please explain the rationale behind your preference.
The panel must be unlimited. We would have concerns of the credibility
of the panel if numbers were to be limited. For example, if after two years a
panelled advocate abandons most criminal work but stays on the panel to keep
the marketing option open, this would preclude a new advocate from getting on
to the panel until the incumbent takes a marketing decision to come off. We
would argue that Practitioners must be free to do as much or as little panel
work as they wish. An able advocate must be permitted to maintain panel status
to cover an event of a privately funded client having to revert to legal aid.
Q5: Do you agree that the government should
introduce a statutory ban on “referral fees” in publicly funded criminal
defence advocacy cases?
In principle, yes, although this begs the question are they not already
prohibited? Is this not what the Bribery Act 2010 s1(3) and 2(3) are designed
for? We would ask for a definition of a referral fee. For example will the sole
practitioner consultant who relies on the solicitors firm for billing and
credit control be prohibited from paying for that service?
Q6: Do you have any views as to how
increased reporting of breaches could be encouraged? How can we ensure that a
statutory ban is effective?
There is no need for a further ban on referral fees (see above) These
fees, have always been prohibited (on pain of disbarment) Rumors have always
circulated these fees have existed for years, historically between a few
unscrupulous chambers clerks and solicitors and necessarily beyond the
knowledge of the advocate practitioner. Reporting them is practically
impossible as the evidence is almost never available. No individual
practitioner will risk their livelihood by reporting something that is probably
no more than a suspicion and may be misunderstood.How is the line drawn between
the advocate who befriends the litigator and the professionally distant
advocate who keeps that relationship at arms length? The “networker” is
promoted while the dedicated professional put at risk.
Q7: Do you have any views about how
disguised referral fees could be identified and prevented? Do you have any
suggestions as to how dividing lines can be drawn between permitted and illicit
financial arrangements?
As above, disguised fees take many forms. Is it the suggestion that the
tests of the professional regulators and the Bribery Act 2010 are not fit for
purpose? In any event the payment for
value of a service provided would appear to be the simplest measure.But should
it be illegal for the excellent sole practitioner consultant to be allowed less
of a genuine admin fee than the run-of-mill practitioner, because he or she is
more value to the firm (eg is it suggested the highly desired sole practitioner
consultant advocate who enters into a favourable financial arrangement with a
litigator to bill and chase fees on his/her behalf be outlawed for achieving
the favourable rate?)
Q8: Do you agree that stronger action is
needed to protect client choice? Do you agree that strengthening and clarifying
the expected outcome of the client choice provisions in LAA’s contracts is the
best way of doing this?
We disagree. Requiring a litigator to tick a box to say the client has
received advice they can instruct an advocate of their choice draws a fig leave
over the procedure of any firms practice – to try to uphold the wishes of the
client who identifies a preferred advocate; to try to instruct leading counsel
where the case clearly justifies it; to replace in-house counsel promptly where
the relationship with the client appears unsatisfactory to the client. We
contend that clients are remarkably vociferous where they feel under-served and
often not slow to go elsewhere if they perceive themselves as being less than a
priority.The Court of Appeal exists to right the wrongs of incompetent
representation – what are the statistics? How many complaints on this issue are
there? How many of those are found to be merited?In the event of stronger
action being imposed, will counsel’s clerk, in the event of a late return, be
required to provide to the litigator, a list of all available counsel, whether
in the respective chambers or not, so enabling the litigator’s free choice –
the said clerk also being required to confirm in writing the choice
offered?Anecdotally, when a case is briefed to chambers it rarely if ever
returns to the firm’s advocates in the common event of counsel of choice
becoming unavailable.
Q9: Do you agree that litigators should have
to sign a declaration which makes clear that the client has been fully informed
about the choice of advocate available to them? Do you consider that this will
be effective?
Litigators are already duty bound to observe the core Rule to represent the
best interest of the client. In practical terms, we raise the issue of returns.
At 6 o’clock on the eve of a trial when a chambers’ clerk calls to say trial
counsel is now unavailable, and chambers has someone new but well regarded, and
in addition there is an experienced in-house advocate available – is the
solicitor required to contact the client (possibly uncontactable or more
commonly not responding) and then sign a declaration?
Q10: Do you agree that the Plea and Trial
Preparation Hearing form would be the correct vehicle to manifest the
obligation for transparency of client choice? Do you consider that this method
of demonstrating transparency is too onerous on litigators? Do you have any
other comments on using the PTPH form in this way?
A PTPH form is no more than a further tick box exercise. This is not as
effective as a litigator being bound by a professional duty to ensure that the
client is well informed about choice of representation.
Q11: Do you have any views on whether the
government should take action to safeguard against conflicts of interest,
particularly concerning the instruction of in-house advocates?
The simple answer is to pay people properly for the work they do. There
was never an issue when litigators were not reliant on advocacy as an income
stream.
Q12: Do you agree that we have correctly
identified the range of impacts of the proposals as currently drafted in this
consultation paper? Are there any other diversity impacts we should consider?
No comment.
Q13: Have we correctly identified the extent
of the impacts of the proposals as currently drafted?
No comment.
Q14: Are there any forms of mitigation in
relation to the impacts that we have not considered?
No comment.
Q15: Do you have any other evidence or
information concerning equalities that we should consider when formulating the
more detailed policy proposals?
Similar
to other firms that have bid to secure a new Criminal Legal Aid Contract we
have based our tender and cash projections with the ability to keep an
increased level of experienced in-house advocates instructed in our Crown Court
cases. That is not to say that should any of the available in house advocates
lack the sufficient experience in any of the intended cases, we would not
hesitate to brief the work out to Counsel with the requisite experience.
We
disagree there is a conflict of interest in such a system. All of our advocates
are independent and are in the exceptional position of not feeling in any way
compromised in simply keeping their solicitors happy in order to secure or
retain work. We have an open and engaged forum whereby cases are discussed
daily in the same location, with decisions regarding the best steps forward for
the case, decided mutually.
We
maintain that our professional integrity and commitment to our clients is not
compromised in instructing the in-house team. We always advise our clients of
the options that they have to instruct alternative Counsel, and advise them of
the experience and knowledge of intended Counsel before committing them to
anyone in house.
We
have an ingrained training system in place, which sees our advocacy department
meet once a month to hold seminars and discussions on legal principles and
topics of the advocates choice. Each advocate takes turns in presenting and
chairing discussions on all manner of topics, ranging from utilising the
relevant toolkit in cross examining a vulnerable witness, to challenging an
expert witness in trial.
We
would suggest that such in house training programmes could be monitored and
indeed audited, by such a body as Lexcel. In order to ensure quality standards
it could be made a regulatory requirement to adopt and document what training
is provided and the quality of the training provided, before achieving a Lexcel
quality standards mark.
What
we would observe is that there is marked difference between the level of
external training available to the Independent Bar than there is to in-house
advocates. For example the Keble Course in Oxford, which is held exclusively
for members of the Bar, excludes the admission of Higher Court Advocates. If
such invaluable and high calibre training were extended to all advocates, we
are certain that the levels and assurance of quality could be measured almost
instantly.
We
agree that any form of financial incentive for instructing advocates is wrong
in principle and undermines the independence of the Bar and instructing the
best advocate who is best suited for the case in question. To that end we agree
with stronger regulations in place to militate against such behaviour. We do
not engage in such conduct. We regularly instruct the independent bar and sole
practitioner solicitor advocate. Chambers invariably have sophisticated case
management and fee collection systems, sole practitioners often rely on our
case monitoring and credit control for which they are charged. The charge
reflects the costs of the service. It is not obligatory. It compares with the
clerking fees charged by chambers. We do not agree this service be outlawed. To
do so would itself be anti-competitive. And unfairly prejudice the sole
practitioner advocates.
We
end by stating that as a profession we are already under immense strain and
continual reform. Consulting on such proposals as this one is time consuming,
and at present we cannot see how it is strictly necessary. We welcome more
professional auditing as outlined above but believe that there is already
sufficient safe guards in place to protect client choice, and the identifying
of able representation in the Crown Court.
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