Cutting a Deal
This week I have been asked to "hold the conch" following on from previous esteemed
authors. The beauty of the Tuesday Truths is we can tell it as it is and deal with those
"elephants in the room".
Please do not read this piece as a declaration of war upon the bar. That is not the intention, like most of us I see the survival of an independent bar as being as crucial to our justice system as is the survival of sufficient firms to provide access to justice and client choice. Just as we would hate to see individual barristers on the poverty line we do not want to see firm closures and mass redundancies for our colleagues in solicitors firms. The two tiers and indeed the second cut due in July 2015 will achieve precisely that which is why both must be opposed.
In the High Court on 23rd December 2014 the thrust of the MOJ's opposition to our application for interim relief was that it was vital to adhere to the tight timetable as dual contracts and forced consolidation are enabling devices for firms to absorb the second cut which must be implemented in July. Counsel stated that without consolidation firms who suffer the second cut will otherwise be complaining that they cannot survive. This was the first that we had heard that the second cut was a certainty. At the time of the much maligned deal in March that the bar made with the MOJ, we were told that not only was the AGFS cut to be delayed until summer 2015, but that the second cut for litigators and lower work was to be considered subject to the findings of the Jeffrey and Leveson reviews.
By the time the Consultation response was published on 27TH November 2014 we were told that litigator fees and lower work were to be the subject of a further cut in July 2015 subject to review. Curiously no mention was made of the postponed cut to AGFS. Enquiries were made as reported in a recent Tuesday Truth. We were told to our surprise that the AGFS cut was subject to a number of “separate criteria “including crime rates and expenditure.
It seems the MOJ consider that the second cut for solicitors is now inevitable regardless of crime spend or other criteria. What is the rationale for this different treatment of the two sides of the profession?
We have seen the correspondence circulated between the Bar Council and The Lord Chancellor about referral fees and giving the client “choice of advocate”. http://www.barcouncil.org.uk/media-centre/news-and-press-releases/2014/december/bar-secures-vital-advocacy-reassurance-from-lord-chancellor/
Whilst many have said an assurance from the Lord Chancellor is not worth the paper it's written on nevertheless questions arise as to how this “vital assurance” came about, its underlying motivation and what was offered to obtain it.
Imagine that there have been on going talks between the Lord Chancellor and the Bar leadership, the content of which was withheld from the majority of the bar. Imagine if in the weeks up to 27th February 2014 the MOJ agreed to implement the first cut for litigators on 20th March 2013 but not implement the same for advocates until June 2014 with the proviso that it could then be argued that the savings following the fee cuts impacted upon the need for a cut to the AGFS. The timing of any cut for advocates could then be postponed to the summer of 2015.
In return for an abandonment of the very effective bar action to withstand the assault on justice the AGFS fee cut becomes a can which repeatedly gets kicked down the road. One wholly predictable effect of the litigators fee cut and the ring fencing of the advocates fee has been a further increase in house advocacy which in turn has led to pressure on the bar leadership.
Rather than a return to fighting the disease not a symptom imagine that the Bar leadership had continued to negotiate over fee structures including the imposition of separate criteria for implementing the July 2015 cuts leading to a dichotomy in which the solicitors cut must happen for no other reason than it had been announced, but the advocate’s cut is subject to “other” considerations.
Imagine that as the second solicitor's cut became an inevitability (as stated by the MOJ in the High Court on 23rd December 2014) the Bar leadership sought via its special relationship with the The Lord Chancellor to reassure members that they were fighting their corner by addressing the perceived problem of referral fees and seeking a means by which clients would be advised that they can instruct an advocate of their choice.
It is depressing that whilst the majority of the profession is trying to promote and defend access to justice and the principle of legal aid itself the Bar leadership remains committed to its public campaign of getting solicitor advocates out of the courts. Whilst I respect and recognise their concerns about protecting members of the independent bar these difficult issues would be better resolved through direct discussions and negotiations with solicitors’ bodies and The Law Society. Instead the course being followed simply enables and encourages the Lord Chancellor to exploit disunity.
Referral fees may be a problem but they are not so prevalent that they could lead to the destruction of the independent bar. If there are abuses going on which may even amount to criminal behavior on the part of a tiny minority of lawyers (both solicitors and barristers) and those who administrate cases then this is an issue both sides of the profession can agree to address after we have fought off an existential challenge in the shape of the current Lord Chancellor.
In any event the referral fees issue ranges from at one extreme rumoured back handers to clerks and to a few individuals to commercial agreements to split fees. If bar rules preclude the latter then and clerks and barristers should be saying no.
On occasion freelance advocates receive between 70-100% of the brief fee. Those lucky to receive 100% are better paid than those with chambers overheads. Those who receive slightly less are paying no more than counsel pay to their chambers to cover certain overheads. Whatever the arrangement this ought not to act as an incentive for instructing an advocate in a case which they are not equipped to appear in. In any event the prize of 20-30% of any AGFS is surely not enough to risk the reputation of a good firm by providing poor service? Solicitors, especially those who fail to succeed in winning a duty solicitor contract will be primarily concerned about their reputations, they are not likely to want to let clients, upon whom they depend for continued instructions, be poorly represented. The specialist quality mark is a key factor that firms need to adhere to.
Moreover, is the use of an employed HCA fee sharing by virtue of the fact that they are salaried? Where is the line drawn? If a barrister of substantial experience is employed in house is there a conflict of interest in the decision to instruct him or her in a case? Does the practice of some chambers in providing pupils for lower work for no fee on the basis the crown court work is returned to chambers indirectly amount to an indirect referral fee?
This concern expressed in the letter to the Lord Chancellor leads onto the bizarre call for clients to be advised that they have a “choice” of advocate. How exactly is this to work? A PCMH form where an advocate ticks a box stating that their client has been advised of the following menu?
a. Leading junior barrister
b. A barrister but with no guarantee that the trial barrister will be the one that has been instructed from the outset because of overrunning cases, double booking etc
c. A solicitor advocate / in house counsel with a working knowledge of the case
d. An inexperienced solicitor advocate / very junior barrister
This all emanates from the concern that there is an uneven playing field for access to advocacy services and that firms cherry pick cases. However, If the shape of the market is changing as a result of consolidation then more firms will be retaining advocacy in house, to be conducted one would hope by skilled advocates.
Over the last few years fixed fees for litigation services have meant that solicitors simply can't make it pay without also providing an advocacy service. Those negotiating to marginalise solicitor advocates would do better to take some time to look closely at the fees payable. Many of us have worked cases to the bone, employed experts and visited far flung prisons as part of the thorough preparation of the case. This preparation has been key to a successful outcome at court. Is it cherry picking if the solicitor advocate attends court to see the case through rather than hand it over to counsel who has only seen the papers 12 hours earlier? Would it surprise those lobbying against such "cherry picking " to know that the litigator fee for such preparation might be as low as £300, thus the only way in which such careful conduct approaches viability would be for the advocacy to be kept in house?
Conversely of course, we are not so myopic as to not be aware of those cases in which the solicitor collects the litigators’ fee, having allowed most of the preparation to be conducted by counsel. This is a sad result of plummeting fees and the pressures on firms.
The solution is clear; fair rates for proper, thorough conduct. It is only when we all see beyond the issue of self preservation and are not fobbed off by the Lord Chancellor bearing limited, short term and self interested concessions, that we will overcome these problems. It is a much bigger picture than referral fees and choice of advocate. A focus on these narrow issues will do nothing to preserve either side of the profession in the long term. These twin obsessions are divisive and reductive diversions which play into a very crude and obvious MOJ tactic of divide and rule.
If my analysis is incorrect then I invite a rebuttal, but I do so in the interest of unity and a desire for both professions to campaign jointly for a fairly remunerated legal aid system which ensures clients access to robust case preparation and advocacy.
It is time to refocus on what this campaign has been about from the start, access to justice and proper protection of our fellow citizens when facing the most coercive powers of the state to prosecute and imprison. Allowing it to be become a trade practice dispute does a disservice to those we are fighting for.