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.