The SRA is dangerously proposing to water down public protection from touting.
As the Roman poet Juvenal asked, who will guard the guardians themselves? Quis custodiet ipsos custodes? Someone needs to apply that to the Solicitors Regulation Authority (SRA), which is proposing to weaken the small amount of protection currently afforded to clients by the professional code of conduct when it comes to solicitors touting for work.
Why are touts such a danger to the public? The answer is simply this: although few in numbers (I must emphasise that) their effect is corrupting and harmful to the interest of justice. It is not only a matter of financial greed that prompts their parasitical intervention between decent firms and their clients but also a criminal culture which infests many of these touting firms.
How does this criminality manifest itself? I will give some examples. In larger cases many of these firms will visit those clients on remand as active agents for others either directly or indirectly involved in the same criminal proceedings. They see people at their most vulnerable either psychologically or financially. They are suggestible.
They are preyed upon with cunning and in that way another criminal actor indirectly insinuates themselves into the case pretending to ‘help’ but in reality influencing the case for their own motives, rarely for the benefit of the client visited and almost always by lying about the firm currently representing. (There is a familiar pattern to the requests for transfer - such as ‘no contact from the firm’ - despite current lack of served evidence justifying such a visit on legal aid.)
Sometimes there is just greed involved and other prisoners are paid to make referrals to these firms or sometimes there are additional retainers paid directly to the client. My firm fought off one of these firms due to the local knowledge of the judge who refused the transfer, but it was the comment of the interpreter that was memorable before the application.
He said the client liked us but the other firm was paying him and only if we did the same he would stay with us. On another occasion, in a hugely publicised case, a client temporarily in custody was approached by another firm with that old lie ‘your solicitor was a duty solicitor and works for the police’. They also ludicrously said that they had ‘people working on the inside at the Bailey who will make sure you get bail’. We did obtain bail and the client was later acquitted without the ‘help' of that firm.
However things are deteriorating. I have had reported to me from various sources that threats of violence are being made not only to clients who refuse to transfer representation but also to their solicitors. One solicitor has given way due to this and agreed a transfer.
I first raised this issue back in March in a Gazette article. The Law Society helpfully conducted a survey which revealed touting to be a serious issue experienced by our members. The results of that survey have been passed both to the Legal Aid Agency (LAA) and to the SRA. What has been their response? Nothing from the LAA in terms of what the profession asked for (which was for touting to become a contract breach).
More shocking (and I use the word shocking in a very real and personal sense) is a proposal by the SRA to water down the only present anti-touting code provision. It proposes to replace Outcome 8.3: 'You do not make unsolicited approaches in person or by telephone to members of the public in order to publicise your firm or in-house practice or another business' with the broken-backed phrase 'You do not abuse your position by taking unfair advantage of clients or others'.
After the historic failure of the SRA to tackle touting (as the Law Society survey reveals) the abandonment of specific wording dealing with this serious issue shows a failure to grasp the threat those touting firms pose to the criminal justice system and to vulnerable clients.
Although annex 4 to the SRA document pays lip service to protecting vulnerable clients I fear the SRA's indifference to the threat of touting will continue and a wrong message will be sent to disreputable firms who are tempted to take short cuts to gain a client base.
Nor is this institutional weakening of resolve confined to criminal practitioners. All clients of all firms are not safe from predators under this change. What is driving this? I believe I have the answer.
It is part of the constant drive to deregulate the profession and dumb it down so that expensively trained lawyers are replaced by those without a professional background. This is carried out under the guise of widening employment opportunities for solicitors in other sectors. This is not about resisting fair competition. It is about resisting unfair criminal and unethical competition in reserved areas such as advocacy.
Professional ethics means subscribing to a code beyond what the marketplace, popular tabloid concepts of morality or what public opinion demands. If the majority of members of a profession follow the standards, the profession will have a good reputation and members of the public will generally benefit.
The SRA must be encouraged by everyone who cares to protect the public from unethical misconduct to make it unequivocally clear that poaching other firms' clients by making unsolicited approaches to them is not fair competition. It is touting and wrong.
If these people were good lawyers they would not need to tout. I hope everyone will make their views known as soon as possible by responding to the SRA survey here.
It is my view that, far from weakening the current provision, the anti-touting element should be strengthened and properly enforced. Otherwise the SRA should hand over regulation to those who care about professional standards. I think Juvenal would expect the public to be guarded better than this.
Robin Murray is the founder of Robin Murray and Co