The Ministry of Justice today laid out plans for a statutory ban on solicitors seeking referral fees from advocates in publicly funded criminal cases – even though it admitted that the evidence for the move was “largely anecdotal” – alongside another quality scheme for criminal defence advocates.
The consultation, entitled Preserving and enhancing the quality of criminal advocacy, also raised the possibility of restricting solicitors’ firms from instructing their in-house advocates.
Referral fees paid by advocates in return for instructions are already banned by the Bar Standards Board and in the Legal Aid Agency’s standard contracts, and also restricted by the Solicitors Regulation Authority.
“In spite of these prohibitions, we are told by the Bar Council, other advocates, and the Law Society that referral fees are frequently paid and received. The evidence for this is, however, largely anecdotal. There is little quantitative evidence as to the scale of the problem due to a lack of reporting of such practices…
“Nonetheless, the government firmly believes that financial incentives cannot be allowed to dictate the choice of advocate… Part of the reason that existing prohibitions are ineffective appears to be that they are not consistent. This inconsistency has led to some confusion as to what behaviour is captured by the prohibitions.
“We propose to end any current ambiguity and strengthen the existing position by introducing a statutory ban of referral fees in publicly funded criminal defence cases.”
It also sought views on how to prevent referral fees disguised as ‘administration’ or ‘management’ fees, while recognising that in certain circumstances administration services are genuinely being offered and paid for.
The plan for the panel – which will initially focus on Crown Court cases and above – came largely from Sir Bill Jeffrey’s review of criminal advocacy last year. “As set out in his report… Sir Bill Jeffrey found widespread disquiet among the judiciary about the quality of advocacy. His view – which the government shares – is that it would be a mistake to dismiss these concerns.”
The consultation paper said the Crown Prosecution Service’s panel might be the model for the defence panel, but did not explain how it would different in substance from the Quality Assurance Scheme for Advocates, which is broader than the proposed scheme in that it covers all criminal advocacy, however funded, and the lower courts as well.
It said: “The government believes such a panel would provide valuable quality assurance and enable the government to have greater confidence in the quality of publicly funded defence advocacy.
“QASA will set minimum standards across the board, and the CPS scheme deals with advocacy from a prosecution perspective. Our panel scheme, specifically for publicly funded criminal defence advocates, will be designed to sit alongside QASA, and may be able to make use of evidence of quality arising from the QASA scheme, whilst not being dependent on QASA’s prior implementation.”
The Bar Council has been warning of the risk of solicitors directing clients to their in-house advocates for commercial reasons, and these are reflected in the consultation, which suggests altering legal aid contracts “to better reflect the obligation of litigators to provide impartial advice to clients on their choice of advocate”.
Further possibilities were to introduce a requirement for litigators to prepare a signed declaration setting out a summary of the advice given and the reasons why the chosen advocate was selected, or to include such a declaration on the plea and trial preparation hearing form.
Seeking views on whether the government should take action to restrict the instruction of in-house advocates, the consultation continued: “There is a line of argument that restricting the ability of defence firms to instruct in-house advocates in publicly funded criminal cases would reduce the influence of financial incentives on choice of advocate…
“Alternatively we could… include a requirement to inform the client about the advocate’s employment status.”
Justice minister Shailesh Vara said: “This government is determined to ensure we continue to have vibrant and effective advocacy in our courts. That is why we cancelled proposed cuts to criminal legal aid for barristers earlier this year, and today we are going further.
“The payment of referral fees to secure instruction is unacceptable – which is why we want to change the law in order to tackle this issue. The guiding principle in advising clients on their choice of advocate must always be the competence and experience of the advocate – rather than their willingness to pay a referral fee.
“The creation of a panel of publicly funded criminal defence advocates will deal with the concerns expressed by judges and legal practitioners, as well as Sir Bill Jeffrey.”