Letters to the Editor

AT FULL STRETCH

You report that Herbert Smith intends to handle more advocacy in-house and suggest this might herald a 'new mood' for expanding advocacy departments, with other firms following suit (see [2003] Gazette, 10 April, 4).

You report Herbert Smith's head of litigation as saying a solicitor who has lived and breathed a case is better able to handle hearings than a barrister who comes in on the day.

I used to think like that.

However, after coming to practise in England from a fused system in Canada I learned a few things.

Not only do barristers pick up new cases very quickly, they are also adept at reducing problems to their legal elements with precision and authority, whereas fused-system lawyers seldom perform the exercise, which can seriously lessen their comprehension of a case.

On top of this, the fused-system litigator can have too much on his plate.

Being concerned simultaneously with unearthing the facts, looking up the law, getting in the money, negotiating and advising on settlement, and preparing and presenting the case in court while pleasing the client throughout, he is less likely to be as well prepared as a properly briefed barrister, who is probably more experienced and more specialised.

An early casualty of overstretch is legal research.

Herbert Smith would no doubt say it knows its limitations and would continue to brief barristers where required.

But will all firms be as scrupulous? Why pass a juicy fee to a barrister when one can keep it for oneself?

There is another ethical point.

I shall never forget the time I told a meeting of US trial lawyers that, in 20 years of practice here, I had never heard a barrister make a single ethically dubious suggestion.

You could have cut the silence with a knife.

The simple explanation is that the separation of the professions requires the barrister to see his client in the presence of the solicitor, and if he makes an improper suggestion the solicitor knows, so nothing improper is said.

But in fused systems, the lawyer sees the client in private.

What the lawyer says is between him and his conscience.

This simple difference largely explains why ethical standards are so high in this country - and partly explains why litigation volumes are so low.

It is droll that Herbert Smith, with its enormous reputation, is now seen as spearheading a movement that, if it develops unchecked, seems certain to degrade the civil litigation system permanently and seriously.

Perhaps it had not sufficiently appreciated the consequences.

As leader in its field, its duty must be clear.

Redefine its position publicly to make it clear that the system will be protected, and do it quickly.

Let us hope that it will.

There is a lot at stake.

Rowland Williams, solicitor (retired), Hampshire

DEVELOPING COUNSEL

May I respectfully agree with District Judge Jeremy Cochrane, as saying that not enough solicitors take on advocacy, in family cases in particular, because they find it hard to be objective or, in some cases give objective and possibly unpalatable advice (see [2003] Gazette, 3 April, 5).

Recently I have appeared in several county courts, some local and some further afield, as well as the Principal Registry.

Each of these matters involved first appointments in either ancillary relief or private Children's Act matters and, without exception, I have come up against junior counsel instructed for the other side unaccompanied by any representative from those instructing him.

In the most recent case, junior counsel represented the applicant father on a first appointment in a contact application.

In the course of the usual discussions, matters of finance were raised by both the judge and the officer from the Children and Family Court Advisory Support Service.

Unfortunately, counsel was unable to enter into any discussions in connection with the financial implications of contact arrangements because a different barrister was dealing with the financial side of things and he had no information at all about the finances.

The independence of the bar means that in difficult cases it can be useful to instruct counsel, but in the type of matters I am talking about, there can be no substitute for the in- depth knowledge possessed by the fee-earner dealing with the matter.

In my view, last-minute - and often inadequate - instruction of junior counsel often results in less progress being made in these matters than might otherwise be the case.

Ian Ashley-Smith, Donaldson Dunstall, Bexhill-on-Sea

PACKING A PUNCH

Simon Thackray is right to express optimism and Fred Crosskey understandable in raising doubts concerning the introduction of home information packs (see [2003] Gazette, 3 April, 1; 17 April, 14).

There is an opportunity (well understood by those solicitors who sell property) to offer better- quality services to house-owning clients by controlling the process; this requires a culture change in the market which could come about after a short transition period (during which many estate agents' worst fears concerning a shortage of instructions may come true).

The opportunity for agents 'to induce' sellers into relationships involving new costs (where none are apparent at present) should not be a deterrent to solicitors but rather an encouragement to provide service where the chance is at present denied.

The provider of the pack will have copyright and if produced by an agent then (prima facie) the freedom of the seller to disinstruct that agent or use another selling agent would be impaired.

Who better then than the solicitor to advise on terms of engagement for the agency and planning strategy for a sale? A preliminary visit to solicitors would help enormously.

Above all, do agents today generally have the training or inclination to validate the entire information pack? This is work well suited to the private client lawyer who at a relatively low entry cost into this market can service every existing client who owns a property.

After all, however infrequent may be the distress purchases from solicitors, the selling agent is on average (one move in seven years) unlikely to be better placed and should run second-best to any solicitor-client relationship which is well managed.

Michael Garson, Law Society Council member for residential conveyancing

MAKING IT WORK

I am sure that I am not alone in suffering terrible frustration in trying to deal with some lenders, particularly over obtaining redemption statements.

Time and again they claim they have not had the letter or that they cannot let you have a statement until the following day when they will fax it to you.

I would like to congratulate Nationwide Building Society for its efficiency.

I exchanged on a sale and my secretary took the file and went on to its Web site, requesting a redemption statement.

Within 15 minutes, it had arrived by fax.

With the enormous IT budgets that lenders must have, why can they all not be as efficient and save us time and effort?

Mark Willis, Nicholsons, Lowestoft

CHECKING OUT RATES

You report that the Office of Government Commerce (OGC) has appointed 32 private firms to cross-departmental government legal panels, and has noted that most of the legal work done for the government is of good quality and good value for money, commenting 'we were anxious not to be seen to be taking a hatchet to lawyers' fees' (see [2003] Gazette, 3 April, 6).

On the same page, you report that West Country firm Bevan Ashford has been awarded a three-year contract by Bristol City Council to provide legal services in support of the in-house team.

I presume that in each case, the firm has agreed to provide publicly funded legal services at less than its private client rate.

Will the OGC, Bristol City Council or, indeed, the firms concerned let us know what those rates are, and by what percentage they are less than the equivalent private client rates? This would allow useful comparisons to be made by those who negotiate rates of pay for publicly funded lawyers who act for the poor rather than for the government.

Will the Law Society be obtaining copies of the 'framework agreements' to see how these compare with the contract awarded by the Legal Services Commission? For instance, have the firms agreed not to claim for time spent reading incoming letters? Have they agreed that all work is to be paid at the same rate, regardless of the skill and experience of the fee-earner? Have they agreed to have their files audited by people who have no knowledge of their area of law?

Lucy Scott-Moncrieff, Law Society Council member for West London

COURTING CONTROVERSY

I recall that in March last year, the Gazette reported that a decision on the protracted and manifestly unfair and discriminatory issue of solicitor-advocates with higher court audience rights being refused permission from upon high to wear wigs in court was to be resolved within a month (see [2002] Gazette, 14 March, 1).

I had no idea that the reference was to be read as being 12 of them.

Jonathan Brierley, solicitor and advocate, Penarth

CONTRACT DILEMMA

The headline 'Barristers may sue over unpaid fees' (see [2003] Gazette, 10 April, 1) is remarkably old news.

The prohibition on barristers suing for fees was removed by the Courts and Legal Services Act 1990.

The Bar's code of conduct has held no prohibition on barristers suing solicitors for fees since that time and, indeed, the Bar Council has recommended a form of contract for barristers wishing to enter into such arrangements since 1999.

The fact that not many barristers take advantage of this ability may well have something to do with the efficiency of our fees collection system.

Nevertheless, the Bar Council very much hopes that it will be possible to reach an agreement with the Law Society as to the form of a recommended standard form of contract to be entered into between barristers and solicitors.

Niall Morison, chief executive, the General Council of the Bar

CORRECTION

The comment from the Law Society's coal mining sub-committee should have stated that the Council of Mortgage Lenders does consult the Law Society on the CML Handbook (see [2003] Gazette, 25 April, 15).