Solicitors may need to help clients represent themselves 'as best they can' if they struggle to find a barrister who is not protesting against the government's legal aid reforms, the Solicitors Regulation Authority has said.
This is the first time the regulator has issued guidance since a growing number of criminal barristers are declining to take on work with a representative order dated 1 April onwards in response to the government's changes to the advocates' graduated fee scheme.
The SRA reminds solicitors that they have a duty to act in their client's best interests.
To ensure they are complying with the SRA's code of conduct, solicitors are told to make 'proper efforts' to find a replacement advocate and document their efforts. If their first choice of counsel declines the work, they should contact 'as many alternative chambers as possible' to establish if they are taking part in the action. Difficulties should be explained to the court and prosecution 'at the earliest opportunity'. In-house solicitor advocates should be employed where possible if they have the skills and resources to take the work.
'If you have been unable to locate an advocate and the court is unwilling to adjourn, you may need to assist the client to represent themselves as best they can', the SRA says.
Solicitors are reminded that they have a duty to uphold the rule of law and proper administration of justice. These include 'making every effort to ensure court hearings take place when tabled, unless adjourned with the agreement of the court'.
Where solicitors are considering taking on a case, the regulator advises them to: consider their position and contingencies; clarify with the client what the retainer covers; and discuss the possibility of counsel unavailability and viable alternatives.
'It would not be acting in the clients interests to take a matter on knowing you are likely to be unable to complete it on their behalf,' the regulator warns. The SRA concludes its guidance with a reminder of a 2015 warning notice for those considering limiting their retainer.
On Monday the Criminal Bar Association and circuit leaders said it had become 'absolutely clear to us that this government does not intend to invest in criminal justice at all. In fact it intends to make more cuts. We will not see any change for the better if we don’t fight for it'.
Angela Rafferty QC, CBA chair, praised solicitor colleagues, who 'have been incredible in supporting this action'.