Criminal law solicitors unable to find a barrister because of their protest over legal aid fees “may need to assist the client to represent themselves as best they can” if the court will not grant an adjournment, the Solicitors Regulation Authority (SRA) has warned.
Giving guidance on the current strike, the regulator said solicitors must make “proper efforts” to find a replacement advocate.
The regulator set out its position in reply to a ‘question of ethics’ query on its website from a solicitor acting in a “complicated Crown Court matter” where the chambers he usually instructed was refusing to take on new work, as were possible replacements.
The Criminal Bar Association called on members at the end of last month to consider refusing instructions in criminal law cases subject to a representation order dated on or after 1 April, when the revised advocates’ graduated fee scheme came into force.
Around 100 chambers have done so and the effect is increasingly being felt in courts across the country.
The SRA said solicitors were under a duty to act in their clients’ best interests, uphold the rule of law and the proper administration of justice and also had a duty, detailed in chapter 7 of the SRA Code of Conduct , to “assess any potential risks to compliance and to have in place systems to address issues identified”.
The regulator went on: “To ensure compliance you are advised to make proper efforts to find a replacement advocate, whether it be a different barrister, or a solicitor-advocate. You should document all such efforts made.
“If your first-choice counsel is declining work, you should contact as many alternative chambers as possible to establish whether they are taking part in the current action.
“You should explain your difficulties to the court and the prosecution at the earliest opportunity, to assist with proactive case management.”
The SRA said solicitor-advocates should be used “where they have both the skills and resources” to take on the work.
“If you have been unable to locate an advocate and the court is unwilling to adjourn, you may need to assist the client to represent themselves as best they can.”
The SRA said solicitors should make “every effort to ensure court hearings take place when tabled”, unless adjourned with the agreement of the court, and it might be helpful to explain this to clients.
Criminal law solicitors who were yet to take on a case affected by the barristers’ direct action were advised to clarify with clients what the retainer covered in terms of advice, representation and advocacy, and the possible “unavailability” of counsel.
“It would not be acting in the clients’ interests to take a matter on knowing you are likely to be unable to complete it on their behalf.”
The Law Society’s guidance, issued earlier this month, said that it did not consider that the unavailability of counsel – for whatever reason – creates an obligation on a solicitor-advocate in the instructing firm to take over the formerly instructed barrister’s responsibility.
“Nor is there an obligation in any new cases to take on the advocacy if an external advocate cannot be found.”
Meanwhile the resident judges of the Northern Circuit have set out their own contingency plans for dealing with the dispute.
Defence solicitors with a representation order are asked to upload onto the digital case system whether the defendant would be represented at the plea and trial preparations hearing (PTPH), whether by a barrister or solicitor, the proposed plea and the “essential issues”.
Where solicitors attend the PTPH, they will be allowed to address the court. Where defendants are unrepresented, judges will deal with the situation on a “case-by-case basis”.