The Solicitors Regulation Authority has issued a warning over the nationwide legal aid boycott hours after criminal barristers announced they would continue to support solicitors in the action.
Thousands of solicitors have been boycotting new legal aid work since 1 July, when a second 8.75% fee cut was introduced.
A new protocol for action, issued by the Criminal Law Solicitors’ Association, London Criminal Courts Solicitors’ Association and Big Firms Group on Friday, enables solicitors to carry out more police station and magistrates’ court work, in effect restricting the action to Crown court work.
The protocol, which came into force on Friday, has prompted the SRA to issue a warning notice.
The regulator said it was ‘concerned that solicitors and firms may not act in the best interests of each individual client, as required by the SRA Principles, should the protocol issued by the LCCSA (Protocol Phase 2 The Crown Court) be followed without fully considering the circumstances of each individual client.’
The notice, Criminal legal aid and clients’ best interests , states that the new protocol does not ‘modify’ solicitors’ regulatory requirements. Failure to comply with the notice, it is stated, ‘may lead to disciplinary action’.
Solicitors who have a retainer with a client, whether it is pro bono or not, have a duty to act in the client’s best interests and ensure the client is in a position to make an informed decision on their matter, the SRA said.
‘Whilst it is open to you to limit a retainer, it is not clear why to do so would be in the best interests of a criminal defendant client.’
Where a firm is instructed in a criminal case where the client requires advocacy in court, the notice says ‘it is in the best interests of the client for the firm to use its best endeavours to secure advocacy for the client. This may include the use of appropriately qualified advocates employed by the firm as well as external advocates.
‘Given this, it is not apparent that a firm following the approach of “if an instructed solicitor-advocate is unable to cover a hearing the case will not revert to another member of the firm” would be compliant with existing regulatory obligations.
‘It is the client’s best interests that are paramount once instructions have been accepted. Such conduct is likely to undermine public confidence in the provision of legal services. It should be remembered that you can only terminate your retainer with good reason and on reasonable notice.’
The CLSA and LCCSA said they were ‘disappointed’ they only received SRA advice in response to their protocol and ‘would have liked the SRA to advise the profession on their ability to discharge their professional duties at the current rates’.
LCCSA president Jonathan Black and CLSA vice-chair Robin Murray told the Gazette: ‘With regards to this [notice], as long as firms inform clients that they can seek alternative advice then they don’t fall foul of the protocol.’
The SRA’s warning comes hours after the CBA’s executive committee decided to continue to support solicitors in their action by refusing to accept new work and adopting ‘no returns’.
The CBA said it would monitor the impact of the action nationally and ‘review matters on a weekly basis’.