Criminal barristers who agree to work for law firms “for no fee” could be breaching the referral fee ban, the Bar Council has warned.
The Bar Council said that in cases where no representation orders had been granted and counsel was “unassigned”, some solicitors were asking barristers “to conduct such hearings in the magistrates’ courts for no fee”.
In return, the solicitors had “stated that instructions to conduct the consequent Crown Court trials will, in the absence of unforeseen circumstances, be sent to members of chambers (who may or may not be counsel who conducted the magistrates’ court hearing)”.
In a guidance note issued by its ethics committee and posted on its website this week, the Bar Council said that in these cases law firms were “wrong to suggest that no fee is available for this work”.
The Legal Aid Agency had confirmed that the fee for barristers was included in the payment made to solicitors under the Litigators’ Graduated Fee Scheme, the Bar Council said, and barristers were entitled to be remunerated out of these payments.
Referring to earlier guidance by its ethics committee on referral fees, the Bar Council said the committee’s views was that “acceptance of an improperly low proportion of the fee paid under a graduated fee scheme can amount to a referral fee”.
The earlier guidance, updated last summer, reminded barristers that referral fees are banned under the Bar Standards Board (BSB) handbook.
The guidance stated that the provision of junior barristers at “discounted fees” or “even for no fee at all”, in return for securing instructions for other members of chambers, particularly more senior members, was prohibited.
“Not only does this involve a disguised referral fee, but it also involves a serious abuse of the most vulnerable in the profession.”
The Bar Council also referred to its protocol for instructing counsel in magistrates’ court cases and a letter from its chairman reminded heads of chambers that requiring junior counsel to work at rates “significantly below” the recommended levels was likely to be a further breach of duty under the BSB handbook.
The Ministry of Justice set out plans in a consultation paper last autumn for a statutory ban on solicitors seeking referral fees from advocates in criminal legal aid cases.