The Law Society has strongly opposed suggestions that solicitors instructing in-house advocates represents a conflict of interest.
In its response to a government consultation on criminal advocacy, the Society says it ‘robustly rejects’ the suggestion a lawyer advising a client has a conflict of interest ‘if their firm also undertakes the advocacy on that client’s case’.
In its document Preserving and Enhancing the Quality of Criminal Advocacy consultation, the Ministry of Justice asked if it should take action to prevent conflicts of interest, particularly concerning the instruction of in-house advocates. It also proposed a statutory ban on referral fees to strengthen the current regulatory ban.
The Law Society's response to the consultation, which closed last Friday, says that if instructing in-house advocates was held to be a conflict of interest, this would 'have profound implications for every aspect of practice as a solicitor' in private practice.
‘It would not be limited to legally aided cases, or even to decisions about advocacy services, but would have implications for every decision a solicitor makes on a client’s case that might impact on the fees the solicitor receives,’ the Society says.
The Society says it is ‘not aware of any evidence’ to justify the suggestion solicitors are allowing financial interests to influence their advice to clients on advocacy.
Meanwhile the London Criminal Courts Solicitors’ Association says in its response that there are ‘many positives’ for keeping instructions in-house, 'as the advocate will more likely become involved at an earlier stage (and not be a last-minute replacement), may have already met the client and will be able to liaise closely with the litigator and have access to the file’.
Limiting the use of in-house advocates could also impact on recent bids for new criminal legal aid contracts, the Society says.
‘Many of these firms will have based their business and delivery plans around the use of in-house advocates. Any restriction on this may very well mean that they are unable to fulfil their contractual obligations.
‘Some barristers’ chambers (in one form or other) have bid for duty contracts and it is understood that some have succeeded. There are also other successful bidders that have innovating barristers as directors.
‘If they are successful, will those chambers/barristers be expected to offer the advocacy to competing chambers and to sign such declarations?
‘This proposal would presumably also apply to direct-access barristers' organisations, who would be obliged to refer advocacy elsewhere if there was a restriction on the use of in-house advocacy.’
The Society says it is not aware of any evidence that referral fees are being paid that would warrant the introduction of a statutory ban on referral fees in publicly funded criminal defence advocacy cases.
It says it was ‘disappointed to read in paragraph 6 of the executive summary the inaccurate allegation that the Society has stated that referral fees are “frequently paid and received” without there being any evidence, to our knowledge, to support this statement’.
In its response, the Criminal Law Solicitors’ Association says it believes referral fees for criminal advocacy to be ‘something of an urban myth' and 'while we cannot say it has never happened, it is extremely rare’.
It is not aware of a single Solicitors Regulation Authority or Bar Standards Board case regarding this prohibited practice.
The Solicitors’ Association of Higher Courts Advocates adds that making referral fees a criminal offence would give the role of investigating breaches to the police, ‘who have numerous other new offences that they are expected to investigate and therefore, if anything, the likelihood of individuals involved in this practice being caught would probably reduce’.