The Legal Services Board (LSB) has joined solicitors in questioning government plans to introduce additional regulation of criminal advocacy.
The LSB, the Law Society and the Criminal Law Solicitors Association (CLSA) either questioned or argued against setting up a panel of defence advocates, introducing a statutory ban on referral fees and requiring litigators to sign declarations that clients were fully informed about the choice of advocate available to them.
In its response to the MoJ’s consultation on improving the quality of advocacy, the LSB argued that setting up the panel should not attempt to “duplicate or undermine” the operation of the Quality Assurance Scheme for Advocates (QASA), due to be implemented early next year.
The oversight regulator said it “was not clear from the consultation document why a statutory ban would prove more effective than the current arrangements” on referral fees.
Further, the LSB said it “cannot be assumed” that any additional administrative burden on those commissioning advocates under legal aid contracts would be justified – there was no evidence to suggest that the Solicitors Regulation Authority’s rules on dealing with conflicts were ineffective so as to justify new rules.
“The proposal to prohibit a litigator instructing an in-house advocate could restrict innovation in legal businesses that aim to provide a range of legal services, including advocacy, as a ‘one-stop shop’,” the LSB added.
“In the LSB’s view, proportionate regulatory arrangements are designed to ensure that regulated persons manage conflicts of interest as they arise, rather than to eliminate them altogether.”
The CLSA recommended that if judges were concerned that advocates were over-reaching themselves, they should give “discreet advice” – either directly to advocates or to their chambers or firms.
It did not accept that a statutory ban was needed on referral fees “to prohibit what is already a prohibited practice”. In relation to the declaration, the CLSA warned of “far-reaching” consequences in that solicitors would insist that barristers conducted every available hearing.
The Law Society said it was strongly opposed to a suggestion that instructing an in-house advocate represented a conflict of interest.
Emphasising that solicitors have an obligation to act in the best interests of their clients, which meant advising on a range of issues, including advocacy options, it said: “Many clients choose to instruct a solicitor-advocate to represent them because they know the client and understand their issues and concerns.”
The society noted that the Bar Council also opposed restricting the ability of defence firms to instruct in-house advocates in publicly funded criminal cases.
Chancery Lane also expressed concern that the consultation did not address the operation of the cab-rank rule and the returns policy of the Bar, meaning a different advocate to that selected is sent to court, chosen by the chambers’ clerk. “This choice may or may not be appropriate, given the nature of the case.”
Though there was no need for a statutory ban on referral fees, the society said it would not oppose its introduction.
The Legal Services Consumer Panel did not support the creation of an “additional quality assurance scheme” to QASA. Although it backed statutory regulation of referral fees, it warned that “enforcing the law may be challenging”.
Meanwhile the Bar Council and the Criminal Bar Association (CBA) strongly backed the MoJ’s plans.
Alistair MacDonald QC said the panel was a “positive initiative”, though decisions should be “entirely independent” of government.
The Bar Council backed calls for litigators to sign a declaration confirming that the client had been fully informed about the choice of advocate.
On the referral fee ban, the Bar Council demanded that this cover “all inducements”, not just referral fees.
The CBA added that if the problem of referral fees did not exist, there would be nothing to worry about, but the “howls of protest” gave an “implicit but clear” indication that such conduct existed and “must be stopped.”