SRA warns criminal lawyers of wider review as row over legal aid boycott deepens

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5 August 2015

Paul Philip

Philip: risks to clients “most serious” when firms are under pressure

Paul Philip, chief executive of the Solicitors Regulation Authority (SRA), has warned criminal lawyers that they may be the subject of a “thematic review”, as the row between practitioners and their regulator over the legal aid boycott deepened.

In a letter yesterday to Jonathan Black, chairman of the London Criminal Courts Solicitors Association (LCCSA), Mr Philip made it clear that he was not satisfied by revisions made to the LCCSA’s protocol governing direct action in the Crown Court.

The changes were made following a warning notice issued last week by the SRA to criminal law firms involved in the legal aid boycott.

The regulator said in the notice that it was particularly concerned about two aspects of the protocol, issued by the Criminal Law Solicitors’ Association and Big Firms Group along with the LCCSA – the introduction of limited retainers and the ‘no returns’ policy.

In the letter, Mr Philip explained that in neither case had criminal lawyers moved far enough to meet his concerns.

“I want to make clear that the SRA has no view on the dispute between you, firms and government,” he said. “Legal aid is a matter of public policy for government. Whether to offer criminal law services under legal aid is a matter for each law firm as a business.

“Our concerns and expectations remain as set out in our warning notice, which remains in force.”

Mr Philip said limited retainers should not be used as a “device purportedly to secure a client to a firm and prevent the client from receiving services, more appropriate to their needs” from another firm.

He said decisions to refer individuals to court duty solicitors should not depend on whether they were a “trusted follower of the protocol”, or it was likely to create a conflict between the solicitor’s and the client’s interests.

Mr Philip said criminal law firms must take “proper steps” to provide clients with alternative advocates for the Crown Court, and there was no misconduct in a new firm operating outside the protocol taking a client where an existing firm refused to apply for legal aid.

He emphasised that “available and competent” in-house advocates must be offered to clients so that a genuine choice could be made, and not one “based on the fact of a current dispute” with the Legal Aid Agency.

Mr Philip said the protocol sought to “balance on a fine line” between sustaining the boycott and solicitors’ professional obligations.

“In our view the protocol risks failure to achieve that balance.”

The chief executive said that he recognised firms were involved in a “difficult commercial dispute”, but the SRA’s role was to “ensure that those we regulate uphold their professional obligations even during difficult times – in fact it is exactly when under pressure that the risks to clients become most serious”.

Mr Philip said the SRA was “currently considering our regulatory and thematic plans for the next 12 months”, which “may include a thematic review of criminal practice and that would be likely to involve visits to firms and consideration of these issues”.

He added he was sending a copy of the letter to Catherine Dixon, chief executive of the Law Society, and writing “in the same terms” to Robin Murray, vice chairman of the CLSA.

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