All fees paid by advocates to their instructing solicitor must be banned to ensure those who indulge in ‘nefarious activities’ cannot disguise referral fee payments by another name, the chairman of the Bar Council has said.
In a keynote address at the Bar Council annual conference on Saturday, Alistair MacDonald QC (pictured) said administration fees which some solicitors ask advocates to pay are just a ‘cloak for a referral fee’.
‘But an elephant remains an elephant, whether you call it an elephant or a ballerina,’ he said. ‘There is simply no place in the regime for advocacy fees for a legitimate administration fee.’
MacDonald said an administration fee could only ever reflect the administrative effort in selecting the best advocate for the case. But he said ‘this is part of the litigator’s duty in any event’.
‘Like drug cheats in sport, who are always one step ahead of those performing the tests, there are no depths to the ingenious means by which these charlatans would seek to dress up referral fees.’
He said the bar will urge the government to completely ban any payments by advocates to the instructing solicitors in response to its consultation on referral fees: ‘There can be no half measures, there must be a complete ban.’
Turning to the government’s proposal to introduce an advocacy panel, MacDonald said the bar welcomed the scheme but stressed it must be rigorously judged and entirely independent of the government.
He added that no advocate who does defence work to a high standard should have the ‘slightest thing’ to fear from a panel scheme.
MacDonald said the government was starting to become more understanding towards the bar, referencing its decision to stop a cut to advocacy fees and the lord chancellor Michael Gove’s remarks on the importance of the bar in a speech in June.
‘It is our view that we now have in post a secretary of state for justice who is open and broad-minded and who is prepared to think in innovative ways to protect standards of advocacy in the Crown court who has, as I have said, cancelled the advocacy fee cut and has proposed important new measures.’
He added that the government’s decision to press ahead with the two-tier legal aid contract scheme, which the bar strongly opposes, was ‘not evidence of bad faith on the part of the lord chancellor’.
‘There was surely nowhere for the government to go other than to implement the two-tier contracts,’ he said.
But he called on the government to review legal aid now rather than later. He said that although many barristers contribute pro bono work, it is no substitute for a properly funded legal aid system.
‘Little publicity is given to the plight of those who are caught up in the nightmare of needing legal help to resolve some of the most important issues in their lives.’
He added: ‘Those in power who speak about litigants in person never seem to acknowledge the stress and anxiety suffered by people put in the position. It is about time they were seen as real flesh and blood rather than as statistics on the page.’