CBA campaign for level playing field “not a cry for war” with solicitor-advocates

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11 November 2014


‘Competitive element’ to selecting advocates must be restored

A new Criminal Bar Association (CBA) campaign to ensure that barristers and higher court advocates (HCAs) compete on a “level playing-field” does not amount to a “cry for war”, its chairman has said.

Writing in the autumn edition of the Criminal Bar Quarterly, published yesterday, Tony Cross said the public were beginning to lose the services of talented barristers in the face of solicitors acting out of “economic necessity”.

“We must restore the competitive element to the selection of advocate,” he said. “We should welcome the competition from HCAs but this competition must be fair.

Mr Cross went on: “I am sick and tired of hearing tales of men and women who have provided excellent service to clients and solicitors alike being told: ‘We are going to take our work in-house, join us or lose it.’

“The only motivation for such actions is economic and no more. It is time to face this challenge.”

The CBA chairman said barristers were being denied the opportunity to compete for work for a variety of different reasons, and he was determined to press for “structural changes” to ensure that the Bar got better access to prosecution and defence briefs.

He was particularly critical of solicitors’ firms that would only instruct counsel if the barrister paid them a percentage of their fee.

Writing on the same issue in his weekly message to the association, Mr Cross called for a ban on referral fees and fee sharing. He said: “We recognise that a number of solicitor HCAs have achieved a high standard of advocacy through ability and experience. We also fear, as do they, that through other means some advocates are doing work beyond their competence. ‘Straw juniors’, referral fees and fee sharing are all practices which are denying the client the best quality representation, for no other reason than economic necessity.

“The joint battle we both have to fight is to secure proper funding for all, to ensure that quality of service will always trump ‘economic necessity’.”

Mr Cross’s article in the CJQ said some solicitors’ firms had no HCAs. “They know the real value of the specialist Bar. My cry is not a cry for war with HCAs; it is a cry for war against injustice.”

He said former civil servant Sir Bill Jeffrey, author of the Jeffrey review of criminal advocacy, argued that there was “no turning the clock back”.

The QC replied: “I disagree. My belief is that there is an overriding consensus amongst lawyers and the judiciary that the Bar is best and best able to secure a cost effective criminal justice service serving the defence and the prosecution.

“Make no mistake about it we are engaged in a fight for the survival of the criminal Bar. My belief is that the next 12 months will be a critical time for us.”

As part of the campaign he said he will be visiting all of the circuits in the coming weeks “to gather evidence of the injustices that you face” and also begin a dialogue with the Criminal Law Solicitors Association “to begin a dialogue on a joint approach to these issues”.

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