Bar Council sets sights on solicitors’ advocacy ‘conflict of interest’

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Lavender: action needs to be taken

The Bar Council has called for strict new rules to check that criminal law solicitors are acting properly when they guide clients to in-house advocates as opposed to external counsel.

The move came in response to the Jeffrey review on criminal advocacy, published earlier this week, which highlighted the ever increasing share of the market enjoyed by solicitor-advocates – as well as concerns among some judges about their quality.

The accusation is that the legal aid system is set up in such a way as to give solicitors a financial incentive to point clients towards their in-house advocates, rather than the independent Bar, creating a potential conflict of interest.

The report’s author, Sir Bill Jeffrey, said “the fact that there are now at stake commercial interests internal to the firm makes it even more important that the process of assigning an advocate should be above reproach”.

He encouraged the Solicitors Regulation Authority and Law Society to consider “what further regulatory or other steps could be taken to clarify and reinforce the professional responsibilities of solicitors in the assignment of advocates”.

The Bar Council said this could be achieved by including in the litigator’s contract with the Legal Aid Agency a requirement that, in any case where an in-house advocate has been retained, that the solicitor’s firm should have advised in writing, or at least have retained a written record of any advice, as to the reasons for recommending the in-house advocate, the alternative advocates considered, the client’s right to instruct advocates who are independent of the solicitor’s firm, and, where appropriate, the limitations on the rights and experience of a ’plea-only advocate’ as compared with other advocates.

The Bar Council said the advice, or record of advice, should be signed or otherwise acknowledged in writing by the client, and that these records should be available to be produced for inspection by the judge in the case, as well as by the Legal Aid Agency.

Further, the barristers’ representative body said the Criminal Procedure Rules Committee should amend the plea and case management forms so as to require, in any case where a defendant is represented by an in-house advocate, confirmation that such advice has been given and acknowledged by the client.

Bar Council chairman Nicholas Lavender QC said: “Sir Bill’s [findings] demonstrate that action needs to be taken to ensure that properly skilled and experienced advocates are instructed in all cases and are instructed in good time to ensure that the trial is properly prepared and conducted.”