The Office of Fair Trading (OFT) has waded into the row over competitive tendering in crime work by warning against an organised boycott of the scheme.

In a letter to Law Society chief executive Janet Paraskeva, the OFT said any action by criminal defence solicitors over Legal Services Commission (LSC) proposals for tendering could be unlawful if it was planned collectively, either through the Society itself or practitioners' groups.


The OFT warned: '[It] will be important to ensure that any decisions about participation are taken by firms of solicitors acting individually rather than in concert with one another or on the advice or instruction of any association of the firms.' The OFT penalty for breaching anti-competition laws is a fine of up to 10% of an organisation's annual turnover.


The Law Society Council unanimously passed a motion last week advising its members that firms should not bid for contracts unless, or until, 'a scheme is proposed which does not risk reduced access to justice or the quality of advice or representation available to legally aided clients'.


Ms Paraskeva said the Society was aware of the OFT's concerns, but stressed it was up to individual firms to decide whether they should bid for contracts. But she added: 'The council is concerned about the adverse impact on quality, choice and access to justice for vulnerable legal aid clients of the current proposals. We hope the LSC will radically rethink the proposals.'


Rodney Warren, director of the Criminal Law Solicitors Association, said any strike action would be a last resort. 'We think the OFT is premature in its expression of concern,' he argued. 'The Law Society and practitioners are only responding on a public interest basis to proposals on government policy.'


Angela Campbell, chairwoman of the London Criminal Court Solicitors Association, said: 'Despite what the OFT is saying, we are all of the view that it won't work.'


The LSC was not surprised by the OFT's intervention. 'We do not believe the Law Society would take steps that breached competition law but regard the OFT's clarification of the issues to be helpful,' a spokesman said.


Stephen Kon, head of EU and competition law at City firm SJ Berwin, said the intervention 'is exactly what you would expect the OFT to do'. He explained that its aim is to stop price collusion or fixing, and a collective boycott of a competitive tendering scheme is likely to be equally unlawful. 'A trade association should not involve itself in the commercial affairs of its members,' he added.


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