Bar considers action on ‘threat’ posed by solicitor-advocates
The Bar Council has set up a working group to tackle what it calls unfair competition from solicitor-advocates for Crown Court work.
In a paper sent to criminal barristers, Desmond Browne QC (pictured), Bar Council chairman, outlines what the body is doing about what he calls ‘the threat to the referral bar by the ever-increasing amount of advocacy’ performed by solicitor higher-court advocates (HCAs). The move follows controversy over Judge Gledhill’s criticism of some solicitor HCAs’ performance (see [2009] Gazette, 23 April, 1).
Last month, Lady Janet Smith, president of the Council of the Inns of Court, wrote to presiding judges, resident judges and circuit leaders asking for evidence relating to whether work done by solicitor HCAs is ‘being done satisfactorily’.
Since losing its monopoly of advocacy in higher courts in 1992, the bar has faced mounting competition from solicitor HCAs as well as Crown Prosecution Service advocates.
Browne says the bar has never feared competition, but it must be fair. In the case of HCAs, he says it is not fair because, among other things, solicitors have direct access to clients and can pay referral fees for work.
He says the working group is looking at options, including a campaign in police stations, magistrates’ courts and prison newspapers, advertising entitlement to a barrister.
Another possibility is amending the solicitors’ client care letter to contain a statement of entitlement to a barrister, and posing a question in the PCMH (plea and case management hearing) form about whether the client has been advised of that right.
In her letter, Smith says she has received letters expressing concern about the way the junior bar is being ‘deprived of Crown Court defence work’ by solicitor-advocates. This not only has a damaging effect on the junior bar, but raises public interest issues, she says: ‘Are defendants being offered a proper choice of representative? Is the quality of representation declining?’
Smith asks judges to estimate the extent to which ‘solicitors have taken over’ work formerly done by the junior bar, and whether the work is being done satisfactorily.
Paul Marsh, Law Society president, said: ‘The Society is very concerned about this letter and the chief executive [Des Hudson] and I are taking it up. Solicitor-advocates provide a high calibre of service to clients. The issues that concern the bar are a product of their own rules and the bar could amend these if it wished. The answer is not to amend the client care letter.’
Comments
l'm a solicitor in the family
l'm a solicitor in the family courts who does not have the solicitor advocate title but I do represent my clients at all hearings with out the use of a barrister and I have to say on the whole the concerns raised by the bar are fair. the quality of the solicitor advocate in family law tend to be new qualified solicitors who have bearly even represented a client at a contested directions appointment and have little or no court manners or knowledge of the procedures. i definately think the standards which I have thus far witness are poor
I'm a solicitor in the family
I do hope that you are successful in repesenting your clients given the standard of your spelling and grammar!
Bar complaints re HCAs
Whilst I can understand the worries of the Bar that they are losing an enormous amount of work to HCAs, I find the response to those worries strange. The suggestion that there should be a paragraph in the client care letter stating that should the client wish, he can be represented by Counsel rather than a HCA shows how out of touch with clients the Bar is.
I would be amused to hear from any representative of the Bar their estimate of how many criminal clients actually read ANY correspondence from their solicitor let alone the client care letter.
I have no objection to including this paragraph in my letters to my clients and will start doing so now, without being prompted. However, the end result is likely to be the same. Most of my clients would prefer to be represented by me rather than Counsel.
The vast majority of my clients would prefer to be represented by me at Crown Court and this was the position even before I received my higher rights. My clients know me and thus are aware of my abilities, and of course my failings. That is why they would prefer that I represent them in Court rather than someone that they have never met before.
The Bar should have recognised the risk to their income inherent in the new Crown Court Litigator Fee scheme, and, lobbied the LSC to improve it, before it came into force. It is that scheme that has effectively sounded the death knell for the criminal Bar as solicitors must now look for other sources of income.
I think that it is also important to consider why solicitors gained their higher rights. In my case, it was not simply a question of making more money. On the day that I downloaded the application form, I had yet again been told that Counsel who was due to represent a client at trial was not available and thus someone with no knowledge of the case, and who had never met the client would be dealing with the matter. I had had enough and made my application.
The advantage of an HCA dealing with the case, from the client's perspective is continuity. A firm wishing to maximise its profit will ensure that a HCA does not have a diary conflict. Counsel never seem to get this right. HCAs do.
In common with the majority of the Bar, most HCAs do not deal with matters that they are not competent to deal with. The complaints about competence seem quite often to simply be sour grapes. It is disgraceful that the Bar are questioning whether HCAs are doing work competently. Those who live in glass houses should not throw stones. If the question had referred to all advocates then I would not object but simply to single out HCAs is objectionable.
Solicitor Advocates
I have never had the desire or time to be an advocate and frequently use the bar for advocacy (rarely for advice as after 20 odd years in practice I consider that by now, I ought to know what I am doing).
Clients do not understand why someone else has to represent them especially when they have built up a relationship of trust. More worrying for the client however, is the so called cab rank principle, which often in practice is the barrister they had last time, taking the best paid job: somene else turning up on the day having had the brief you sent ages ago being handed to them the night before, and the lack of continuity in representation. They do not appreciate having to explain themselves to someone new on each occasion.
As a solicitor who also sits part-time, I also feel qualified to say that the quality of advocacy from the bar is not always as high as is thought. If it was, there would be nothing to fear from solicitor advocates.
It is competition but not unfair.
Choice?
So, the bar wants a greater emphasis on ensuring clients have a choice. OK, I will now offer every client of mine in the magistrates' court the very best representation on offer. I wonder whether the cab rank rule will be so enthusiastically embraced when the wigged ones start getting briefs down at their local magistrates' courts. Barristers need to think very carefully about what they wish for - they may just get it.....
Direct Access for Users to Barristers
There is a huge demand by users in Family Law for direct access to Barristers for hearings.
Users of the Courts just do not understand why they have to go through Solicitors to obtain the services of a Barrister. It is an archaic practice that merely ensures a steady income in referral fees for Solicitors.
Give people the choice rather than tying them down to an expensive, inefficient and archaic system where Barristers are unobtainable except via Solicitors in family law.
HRA
The Bar have only themselves to blame for the competition they face from Solicitor Advocates. I am a trainee solicitor who intends on obtaining the HRA as advocacy is my stongest point. I freely admit, at university my intention was always to be a barrister as I felt my skills were far more suited to that role, and I painstakingly researched both branches of the profession.
However, it soon became apparent that the Bar does not understand the concept of being an equal opportunities organisation or appointing people on their attributes and achievements. It is decades behind the Law Society in being an open and inclusive organisation and has done nothing to move away from the barriers to entry into the profession faced by ethnic groups, women and any class below the upper middle classes. The chances of obtaining a pupillage are virtually impossible for those who have not been to Oxbridge or a public school and make obtaining a training contract seem easy by comparison!!!
As such, there, over the years are bound to be many people like me who have welcomed the HRA opportunities for solicitors as it allows us to practice law and have a chance at being advocates for those who feel they are suited and excellent at the role without the ludicrous formalities one has to go through at the Bar.
The only reason the Bar is worried is that the myth that only barristers made excellent advocates has been ruthlessly exposed as they are obviously finding that clients actually find solicitor advocates do a better job which is hardly surprising as they will be more familiar with the case. If standards were so poor among solicitor advocates, why would the Bar be worried?
The Bar's barriers to entry into the profession created the solicitor advocate, and I would suggest they should have bourne in mind the saying ' Be careful the seeds you sow.' There is no going back now, solicitor advocates are too good at what they do to not be used more by clients, and ultimately in the next 15 - 20 years the role of the barrister will be consigned to history.
Of course, it will be sad, but the Bar has only itself to blame for failing so miserably to keep up with the times.