Solicitors should be required to explain why they have recommended a particular advocate, the Bar Council has suggested in its response to a government consultation on criminal advocacy which closes today.
In its Preserving and Enhancing the Quality of Criminal Advocacy consultation paper, the Ministry of Justice proposed a statutory ban on referral fees to strengthen the current regulatory ban.
It also proposed that litigators sign a declaration that the client has been fully informed about the choice of advocate.
In its response, the bar's representative body backs the statutory ban and that the declaration form include ‘a brief explanation of why the type of advocate was recommended by the litigator'.
A declaration would be effective, it says, ‘because of the contractual and professional implications for litigators if they are found to have lied on a signed declaration’. The content of the form should not be a ‘tick-box’ exercise, ‘nor so onerous as to be untenable’.
There is already a regulatory ban on referral fees. However, the Bar Council said a ‘statutory’ ban would ‘further confirm’ their ‘distasteful and market-distorting nature’.
‘It will also offer much-needed clarity and consistency as to exactly what type of behaviour is banned,’ it says.
A spokesperson told the Gazette the ban should cover any inducement, including referral fees that are disguised by a different name, such as ‘administration fees’.
'Any payment, charge or financial arrangement whatsoever imposed on advocates to ensure they secure instructions should be understood as a referral fee and be outlawed,' the spokesperson said.
The council also suggests in its response that the government create a ‘reporting service’ such as the Red Alert Line offered by the Solicitors Regulation Authority to encourage increased reporting of breaches.
‘The very nature of a statutory ban may also incentivise reporting as it should both clarify the behaviour that is unlawful and cement the objectionable nature of referral fees,’ it says.
The ministry also proposed developing a panel scheme for criminal defence advocates, based loosely on a Crown Prosecution Service model already in operation.
Welcoming the proposal, the Bar Council says the Legal Aid Agency should delegate responsibility for selecting members to the professions and their representative bodies.
It adds that the panel scheme and a new Advocates Graduated Fee Scheme be adopted and implemented together. However, any proposal that prevents firms from instructing an in-house advocate would not be appropriate.
The Bar Standards Board said it will publish its own response to the consultation on Monday.
A BSB spokesperson said: 'A statutory ban on referral fees only in publicly funded criminal defence advocacy cases does not, in the BSB’s view, go far enough.
'The Bar Standards Board’s Handbook and Code of Conduct prohibits the payment and receipt of all referral fees, because such arrangements are likely to compromise the independence and integrity of barristers.
'Balancing the different regulatory objectives set out in the Legal Services Act 2007, the BSB takes the view that the ban is in the public interest.'