Ban all payments to instructing solicitors so as to defeat the “charlatans”, says Bar Council chair

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19 October 2015

MacDonald: an elephant remains an elephant, whether you call it an elephant or a ballerina

MacDonald: an elephant remains an elephant, whether you call it an elephant or a ballerina

There are no depths to the “ingenious means by which these charlatans would seek to dress up their referral fees”, the chairman of the Bar Council has said as he attacked the “grubby and squalid” back-handers paid by some barristers in exchange for work from solicitors.

Calling for the extension of government plans to outlaw referral fees in publicly funded work to all types of fee paid to instructing solicitors, Alistair MacDonald QC said such payments were “nothing short of a scandalous misuse of public funds” and were “objectionable” in every way.

In his keynote address to the 30th annual Bar Council conference, he demanded: “Why should taxpayers’ money go to providing a back-hander to a person placed in a position of trust by the state, to find and brief the best advocate for the lay client?”

Mr MacDonald said: ‘The fact that no solicitor in my experience at the Bar, has ever, until recently, demanded a fee for the administration of the selection process demonstrates that this is just a cloak for a referral fee.

“Those who indulge in these nefarious activities are ever ready to seek new ways to hide the truth of what they are really about under the cloak of a name such as an administration fee.”

But, he said: “An elephant remains an elephant, whether you call it an elephant or a ballerina.”

There was, said Mr MacDonald, no place in the regime of advocacy fees for a legitimate administration fee. “An administration fee payable by the advocate could only ever be a payment to reflect the administrative effort in selecting the best advocate for that case. But that is part of the litigator’s duty in any event.”

He continued: “Like the drug cheats in sport, who are always one step ahead of those performing the tests, there are no depths to the ingenious means by which these charlatans would seek to dress up their referral fees.

“The only effective measure would be a complete ban on any payment by the selected advocate to the instructing solicitor. And that is the measure we will be urging in our response to the consultation.”

On the government’s proposals to introduce Crown Court advocacy panels to ensure quality, the chairman reassured barristers that they had nothing to fear.

He said any scheme should not distinguish between which branch of the profession – solicitor or barrister – the advocate comes from.

“If a barrister, with his or her unique opportunities to hone their advocacy skills by a year of dedicated advocacy training followed by a year of pupillage and the support structure of chambers, cannot cut the mustard, there can be no excuses.”

But he said: “No advocate, who does defence work to a high standard should have the slightest thing to fear from a panel scheme.”

Closing the conference, the former Attorney General Dominic Grieve QC, alluded to the panel proposal, suggesting it would mean that the Quality Assurance Scheme for Advocates “may not be necessary or in the way it was envisaged”.

Suggesting that some form of advocacy quality control was required, Mr Grieve said that “everybody knows that the standards of criminal advocacy are slipping”, adding that it is a “wider problem” than just solicitor-advocates.

But he observed that the “selling point” of the criminal Bar is “excellence in advocacy”, suggesting that they should they should have nothing to fear.

More broadly, Mr Grieve said: “A lot of alarm bells are ringing that the criminal justice system is teetering very close to being ineffective.”

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