Dear Leaders of The Bar
I write this letter out of complete and utter
despair. I write this in the hope of
stopping the absurd two pronged attack that criminal solicitors (and to some
extent the Junior Bar) are faced with from the MoJ and the stance that you have
adopted in recent times.
I am a Solicitor and have been for over
thirteen years. I am proud of what I do.
I have an All Courts Higher Rights qualification which I obtained
through the examination route. I am a Duty Solicitor and I am police station
accredited. I am no less qualified than
any member of the Bar. I am not second
best to anyone and neither are any of my Solicitor colleagues. I should never
have to say this or set it out in an open letter. I have complete respect for
my Barrister colleagues whether Junior or Queens Counsel. I would like to think
that they have the same respect for me. Why is it then that Solicitors are
continually made out to be a 'poor relation', either by the government or
through the recent consultation paper that you helped to draft.
Personally I choose not to use my Rights of
Audience at the Crown Court but that is very much a personal choice. I have specialised in criminal law for my
entire career and I have had many clients ask me to conduct their case in the
Crown Court. I have always refused. I instruct Counsel on 100% of my cases. I
choose the appropriate Barrister for the case.
I have never, ever been instructed by a client who has asked for a
particular barrister. The simple fact is that the client instructs me because
of my reputation and in turn they trust me to pick the barrister. To try and suggest that I might pick someone
who isn't suitably qualified to deal with my client's case is absurd. I want
that client to come back to me or if not to recommend me to everyone that they
know. I want to ensure that, together with my chosen Counsel, we get the best
result for that client. This is how our
business operates; we get results, we get a good reputation and so we get more
work. It is a simple concept but it is one that you choose to ignore.
For the last two years the Solicitors
profession have been through the most torrid time and it doesn't get much worse
than the last week. At the moment there isn't a criminal legal aid solicitor
who isn't beside themselves with worry about the future. Whether they are a firm owner or an employee,
whether they are part of a firm who have bid or not they are all united by an
uncertain future. The very last thing
that the profession needed was announcements at the eleventh hour about a
consultation designed purely to rid the Courts of Solicitor Advocates. A
completely unnecessary diversion at this point in time but one that you have
persuaded The Lord Chancellor is of paramount importance.
The irony of your failure to focus on what is
really important is that you have completely ignored the consequences that two
tier will have upon the Bar. You see if
two tier is introduced larger firms who don't need an own client following will
be given a guaranteed volume of work.
Once those firms get the guaranteed volume then results matter less. In
fact they don't need the client to return to them because they have a
guaranteed replenishment of clients. This means it will matter less who they
instruct at the Crown Court and due to the further cuts the solicitors
profession are about to incur, in some cases they will be forced by financial
constraints to keep more and more work in-house.
Your failure to deal with two tier means that
you are complicit in the downfall of the Junior Bar via two tier. Please don't
get me wrong I understand that you think that by commissioning self-serving
reports about Crown Court advocacy and assisting with consultations you will
somehow preserve the Bar but the reality is you won't. Your best chance of
supporting and preserving the Bar is through working with the Solicitors
profession instead of consistently doing them a disservice.
The fact is we are two halves of the same
profession. One should not have to exist without the other. One should not want
to exist without the other. I read an
interview with a QC recently who boasted of his close friendship with The Lord
Chancellor and was suggestive of the fact that one of the main problems within
the system is Solicitors with Higher Rights.
With the greatest of respect this is nonsense. The Bar might well find
Solicitor Advocates undesirable because of the additional competition but
equally Solicitors find Direct Access Barristers undesirable. The blurring of
our roles is what causes fragmentation amongst the profession, however it is
sadly a case of cause and effect and rather than addressing the cause you seem
to ignore that in favour of focussing upon the effect. The cause that you
should be focussed upon is cuts and latterly two tier. The fact is that criminal legal aid solicitors
have sustained nothing but cuts for the last twenty years and they just cannot
take any more. The employment of Solicitor Advocates might well pose a threat
to the Junior Bar but the greater threat is what forces the employment of
them. It is for this very reason that
the timing of the consultation is interesting. You see the scheme that you
propose quite simply cannot work with Two Tier. Some of the firms who have bid for
two tier have done so knowing the scandalously low rates they will receive for
police station and Magistrates Court work, never mind the LGFS post January
2016. They have calculated that they can undertake the work because in order to
survive they will keep Crown Court advocacy in-house. This might well be
something that neither you nor the MoJ are approve of but this is the
consequence of two tier and cuts.
This leaves us with an interesting dichotomy;
two tier and cuts or quality advocacy in the Crown Court. This is by no means an acceptance of your
underlying assertion that Solicitor Advocates are a poor quality substitute but
simply repetition of the fact that two tier will be the demise of the
Junior Bar.
The consultation raises a number of interesting
issues, not just for Solicitor Advocates;
1.
Referral Fees. How big is the problem actually? In thirteen
years I have never come across anyone paying or receiving referral fees. I
don't doubt it happens but where is the evidence that the practice is
increasing? If, as you say, the practice has increased because of legal aid
cuts then surely you should tackle the issue of the cuts.
What actually
constitutes a referral fee? Do we now put an end to Chambers parties or to
Chambers sponsorships of Solicitors events?
2.
Client choice. When advising
the client about their choice of advocate should Solicitors now make all
clients aware that their Barrister may not always be available to cover each
and every hearing whereas an employed advocate will? It has been a common and
frustrating point for years. Solicitors
having to manage their client being annoyed at the last minute change of
Counsel. The availability of in-house
Counsel for every hearing is undoubtedly a positive benefit for a client. Should we now insist that every hearing is
covered only by the Barrister instructed to create a level playing field? If we
were to adopt this approach then it would have exactly the same effect as no
returns and think of the damage that would cause to the Junior Bar.
The problem is that the consultation is largely
self-serving and because the Solicitors profession have been deliberately
excluded from it the consequences have not been properly considered. It is QASA
through the back door but without the much maligned plea only advocates which
let’s face it was always a great bug bear from it. Parts of the
consultation are an affront to those of us who do the job properly. It is
beyond offensive to try and suggest that briefing work in-house may constitute
a conflict of interest. It is also unhelpful to the Junior bar, some of whom
seek to put the uncertainty of self-employment behind them by seeking the
security of in-house employment.
You should not misunderstand the purpose of
this letter. It is not, as you might
think, a piece written in defence of Solicitor Advocates or the increased use
of them. I am also not ignoring the fact that there are firms in existence who
do use HCAs purely for financial gain and with little regard for whether that
person is the most appropriate advocate for the client’s
case. I do not condone that. I am not so naïve
to think that there aren’t inexperienced HCAs put in the most awful predicament by their
employers by being instructed in cases that are way beyond their
capabilities. This is something that
shouldn’t be allowed to happen. The bottom line is that I accept all that
but trying to restrict the use of HCAs after cuts and two tier is a bit like
closing the stable door after the horse has bolted.
It is about time that the Leadership of the Bar
actually looked at the issues that affect their Junior Members and worked out
the best way of dealing with them. Two tier will increase use of In-house
Counsel whether you like it or not. One
wonders what will happen to the Chambers who have submitted tenders as a
consequence of your suggestions of a conflict by briefing in-house? Your
consultation and two tier are like trying put a square peg in a round
hole. They just don't fit together. Many
of us only want to see quality HCAs appearing at the Crown Court as the poor
ones or the less capable do nothing for our reputation, in the same way that
Barristers paying referral fees do nothing for yours. We are, however, best
placed to address these problems together.
What Solicitors and Junior Barristers do not need is a transparent
attempt at restoring an ancient closed shop for Crown Court advocacy by the
Senior Bar.
The fundamental point is that we all want a
quality profession. We all want to be properly remunerated. We shouldn't be at
each other's throats. Solicitors are tired
of fighting off attempts to see them out of business from every angle. The Leadership of the Bar should respect this
and offer support, after all we are both here to provide the same service. We
don't want you to fight our battles for us, what we want is for you to
understand that our battles are your battles.
Yours sincerely
A Solicitor
