Barristers call for government review of inadequate advocacy by solicitors in family cases

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20 July 2015

MacDonald: where counsel are instructed, it is often too late

MacDonald: where counsel are instructed, it is often too late

Barristers have called on the Ministry of Justice to conduct a review of advocacy in publicly funded family cases, arguing that solicitors are letting down their clients and causing injustice by handling cases without counsel.

In a letter to justice minister Shailesh Vara, the chairs of the Bar Council and Family Law Bar Association – Alistair MacDonald QC and Susan Jacklin QC – argued that solicitors were not enabling clients to make an informed choice about the conduct of their cases.

“Serious damage to the public interest has been caused by this situation. The standard of representation being provided in many cases is so poor that unjust outcomes have occurred.”

The pair said the changes in legal aid funding meant law firms were keeping work they previously outsourced to the Bar in-house, with the consequence that “in some cases solicitors who previously would not have contemplated conducting advocacy at a contested hearing are now making appearances at such hearings even though they do not have the skills to do so”.

“Evidence gathered from our membership” was that such solicitors were not asking the right questions or raising points of law, the said. “This failure is of particularly significance since, in addition to the risk of injustice, it creates a serious risk of the need for an appeal.”

Noting last year’s review of criminal advocacy by Sir Bill Jeffrey, and the finding of the disparity in mandatory training between barristers and solicitors, the letter said the position in the family court is “undoubtedly worse” because solicitors require no advocacy training in order to appear either in the county court or in the High Court.

The barristers also complained that of those solicitors who continued to instruct counsel for contested hearings, “a significant number are retaining cases for all earlier hearings and advocates’ meetings before instructing counsel at the eleventh hour. A common complaint from counsel instructed in this manner is that there has been inadequate analysis of the evidence and thereby inadequate preparation”.

Family solicitors group Resolution said that, together with its “partners in the family law community”, it has been holding “detailed conversations with the Bar for some time regarding family advocacy work in the post-LASPO landscape”.

In a statement, it continued: “It is therefore disappointing that the FLBA and the Bar Council have felt it necessary to ask the minister to commission an independent review. We have not seen any evidence to support the need for this; and indeed, anecdotal reports from our respective members, including barristers and leading judges, do not demonstrate that the concerns expressed in this letter are widespread (and in many areas, they do not exist at all).

“Resolution, together with our partners, are of the view that any quality issues are best addressed by the profession through training and accreditation for the Bar and solicitors. We wish to continue to work with the FLBA and the Bar Council to this end, as we have offered throughout.

“At a time of significant challenge for legal aid practitioners, another review of the support they provide to vulnerable people is neither warranted nor helpful.”

Responsibility for family justice issues actually passed to new justice minister Caroline Dinenage after the election, although Mr Vara has the brief for the courts and for legal services regulation.

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