The Solicitors Regulation Authority (SRA) has issued a ‘warning notice’ to criminal law firms involved in the legal aid boycott.
The regulator said it is “concerned that solicitors and firms may not act in the best interests of each individual client” should the protocol issued by the London Criminal Courts Solicitors Association (LCCSA) be followed without “fully considering” each client’s circumstances.
The protocol, issued last week by the Criminal Law Solicitors’ Association and Big Firms Group along with the LCCSA, effectively restricts the boycott to the Crown Court.
“It is a matter for each firm and individual solicitor to decide whether or not to represent clients in criminal cases,” the SRA said.
“However, at all times, individuals and firms are bound to comply with regulatory requirements and the protocol issued by the LCCSA does not, in any way, modify these requirements.”
The SRA highlighted two aspects of the protocol which it warned could breach its rules and lead to enforcement action.
The first is the suggestion in the protocol that firms create a “limited pro bono retainer” with clients.
The SRA said: “Where you have a retainer with a client, whether it is pro bono or not, you have a duty to act in the client’s best interests and to ensure the client is in a position to make an informed decision on their matter.
“Whilst it is open to you to limit a retainer, it is not clear why to do so would be in the best interests of a criminal defendant client. In order to achieve Outcome (1.12), you must inform the client of all his choices.
“It is likely to be in the client’s best interests to instruct another firm able to act for him fully and to apply for legal aid. You should advise your client accordingly or as to any other options open to him.”
The regulator said the protocol also sought to apply a “no returns” policy.
The SRA said: “Where a firm is instructed in a criminal case where advocacy in court is required by the client, it is in the best interests of the client for the firm to use its best endeavours to secure advocacy for the client.
“This may include the use of appropriately qualified advocates employed by the firm as well as external advocates.
“Given this, it is not apparent that a firm following the approach of ‘if an instructed solicitor advocate is unable to cover a hearing the case will not revert to another member of the firm’ would be compliant with existing regulatory obligations.
“It is the client’s best interests that are paramount once instructions have been accepted. Such conduct is likely to undermine public confidence in the provision of legal services. It should be remembered that you can only terminate your retainer with good reason and on reasonable notice.”
The regulator added that failure to comply with the warning notice “may lead to disciplinary action”.