Solicitors under fire from bar over referral fees

The new Criminal Bar Association chair has criticised solicitors for ‘abusing’ the referral fee arrangements for Crown court advocacy, claiming that solicitors are pocketing money for work done by barristers.

In his first interview as CBA chair, Christopher Kinch QC told the Gazette: ‘The criminal bar is feeling bruised by the way the referral system has been abused by solicitors eating into what is supposed to be a fixed advocacy fee.’

Under the advocates graduated fee scheme, the Legal Services Commission pays a single fee to the first barrister or solicitor-advocate instructed on a case, designated the ‘instructed advocate’.

The scheme is designed to encourage continuity of representation, with the same person attending all hearings, although ‘substitute advocates’ can be instructed where this is not possible.

Substitute advocates are instructed on a subcontractor basis, with their fee paid to the original instructed advocate, who then hands over their ­payment.

Kinch said some firms are abusing this system, by sending their own solicitor-advocate to the initial hearing, then subcontracting the trial to a barrister, and paying them only a percentage of the advocacy fee due.

‘In some cases, barristers are only receiving 70% of the fee. From our side of the fence, this is not only a breach of our rules, but completely contrary to the spirit and letter of the criminal procedure rules – if you’re the instructed advocate, you’re supposed to stick with the case,’ he said.

Kinch nevertheless added that barristers and solicitors are ‘natural partners’, and said he expected to see them bid together when the LSC next tenders for contracts.

Ian Kelcey, chairman of the Law Society’s criminal law committee, said that while the practice of solicitors taking a percentage of the graduated fee was ‘not a process we approve of’, it did fall within the rules, and was a matter for commercial negotiation.

Meanwhile, Bar Council chairman Nick Green QC this week criticised a ‘minority’ of solicitors whom he alleged have threatened to ‘blacklist’ any chambers that bid against them for legal aid contracts.

Green said: ‘There are some solicitors’ firms, especially in big cities, which are making threats that if barristers’ chambers bid against them, they will blacklist them and won’t instruct them. This is an irrational stance, held by the minority. The vast majority of solicitors have worked out that they need to enter into sensible discussions with chambers and think how they can work together.’

Green added that chambers that win criminal contracts could act as a ‘lifeline’ for criminal firms too small to win contracts themselves, as chambers will need to subcontract work to solicitors to fulfil the contract.