Criminal defence solicitors are facing more trouble over threats to a conflict of interest rule that would free them from dealing with co-defendants, and the possibility that extra money agreed in recent pay negotiations will not now be paid for very high-cost cases.

The government and the Legal Services Commission (LSC) have complained about an amendment to a Law Society rule, passed at the last council meeting in July, which would create a presumption of a conflict of interest where solicitors act for co-defendants.


But the rule change will now be up for debate again at next week's council meeting in Bristol, following letters from the LSC and Department for Constitutional Affairs (DCA).


'[We] have significant concerns about the potential cost impact of the proposed change,' the DCA said, advising the Society 'not to proceed with this'. It threatened that any budgetary impact would mean that 'there will be less resource to tackle social exclusion' and would also 'lead to increased pressure on the courts and other parts of the criminal justice system'.


A Society spokesman confirmed it had been in negotiations with both bodies since the matter was voted on in July.


But Helen Cousins, council member and chairwoman of the Criminal Law Solicitors Association (CLSA), said she hoped the council would look beyond any cost implications to wider justice issues.


'We cannot see that anyone would have any ethical objection to this rule, and hope that the council will adopt an ethically correct position,' she urged. She added that there might also be potential human rights implications and the possibility of wasted costs orders against solicitors who were later found to have acted in a conflict situation.


Ms Cousins said the current rules were out of sync with protocols on very high- cost criminal cases. That scheme has also been thrown into further turmoil as solicitors have been informed by the LSC that they would be paid at rates set prior to pay negotiations that promised them an extra £6 million, owing to subsequent changes to the criteria applied to the various levels of cases.


Fellow council member and CLSA vice- chairman Ian Kelcey accused the LSC of acting in bad faith, adding that the CLSA will be monitoring how many cases are affected - but he suspected that solicitors would end up out of pocket.



'The LSC is latching on to anything it can to reduce costs,' he argued. 'Many practitioners believe this is sneaky behaviour. Firms that have been contracted at a given rate will find themselves, under the new criteria, working under a lesser rate - and that cannot be right.'


An LSC spokesman said it now realised that cases started after 2 August might receive a lower classification than before, and would meet with the Law Society and Bar Council this week to discuss the issue.