Regulators must abandon their indifferent attitude to touting for business.
Why do the Solicitors Regulation Authority and Legal Aid Agency fail to help the profession drive out the touts? They number a tiny minority within our ranks but their impact upon the legal profession and the public is significant. Let us first discuss the terminology.
A ‘professional’ is a member of a profession who earns their living with a standard of education and particular knowledge and skills necessary to perform the role, subject to strict codes of conduct enshrining rigorous ethical and moral obligations.
For solicitors that code is administered by the SRA. What is a tout in this context? I would say it is any solicitor who offends ‘outcome’ rule O(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.’
Touts are a danger to the public because their lack of ethical and moral dealing with the public and the profession whilst engaging in this grubby activity almost certainly hides a multitude of sins. If touts dishonestly conduct themselves without regard to the code why would we expect them to behave in a proper manner once the client is instructed?
Some may say that it is divisive to raise this issue. It is intended to be divisive because as between touts and the vast majority of decent solicitors there should be a divide. There can be no professional tolerance of touting because it is important that we demonstrate our adherence to our regulatory code and the very necessary distinction between our professional status and non-professionals. Otherwise the floodgates open to non-lawyers in a dumbing-down process under the guise of deregulation.
Touts are a genuine threat, as the following accounts will demonstrate.
Jonathan Black, former president of the London Criminal Courts Solicitors’ Association, says: ‘It’s strongly believed that this behaviour prevalent at (a well-known London court) has caused well-established firms to go out of business as their client base has been intercepted by touts. I have had statements from clients who have been approached in this way.’
Another writes: ‘It’s a problem here in Sheffield with firms from out of town who appear at prison to try and sign clients up and often they do. Generally the clients don’t get good representation as the economics of current fees don’t allow for masses of travel. I will not agree to the fabrications of poor service often alleged by these touts.’
From Newcastle, ‘the local magistrates’ court has a substantial problem with touting. One firm in particular has numerous advocates and/or runners “camped” by the door picking off the stragglers. Also at the police station a number of firms will keep reps parked in the car park all day’.
Well-known solicitor Karen Todner reports: ‘The complaint that we made was against a firm whose solicitors every day attend at court at 8.30 and tell people they are a duty solicitor and divert work away from the actual on-duty solicitor. Approximately 10 firms got together to make a joint complaint and letters were sent to the LAA and SRA. The SRA did not even respond. The LAA said that there was no breach of the contract and therefore could not get involved.’
In Wiltshire and Bristol, another solicitor reports: ‘I complained to the SRA about an individual with a local firm who waits outside the police station and introduces himself to other firms’ own clients and asks them to sign up legal aid with him. A client signed a witness statement in relation to this unsolicited approach.
‘He apparently offered her money to change to him. He pays a network of people to refer clients to him for around £10-£20 per case. Many clients have confirmed this not only to me but to other local solicitors. We lost around 16 clients in three weeks, one of whom we secured an acquittal for only a week earlier.’
Keima Payton from London writes: ‘I would add to the list (of touts) those that hang around the courtrooms which deal with the first appearances (not having a single case listed), those sent to hang around in the front office of a police station asking everyone waiting why they are waiting and handing out cards, those that promised clients a new pair of trainers for a recommendation in prison, those that give prisoners an allowance for a recommendation, people who pay “finders” to hang around local estates and recommend a firm (especially if there were a number of local youths arrested for a murder or the like).’
These are just a few examples of intolerable unprofessional touting. Often I am told these same firms will plead not guilty and always ‘crack’ the trial at the last minute and send embarrassingly poor-quality advocates to courts at all levels.
The SRA and LAA are reported by many solicitors as not taking any action against touts despite complaints. There is no question in my view that the profession has no confidence in these organisations to do their duty in these serious circumstances. If they do not address this issue then we will have to find ways of holding their leaders to account for this failure, perhaps in the parliamentary arena.
The professional associations stand ready to ensure that these touts are properly identified locally but the regulatory establishment must abandon its current attitude of indifference, enforce current regulations and ensure new contracts contain provisions to close down those that betray the public and the profession.
Robin Murray is the founder of Robin Murray and Co