Monday, 5 October 2015

The Tuesday Truth

(the author of this week's Tuesday Truth wished to remain annonymous)

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 lets 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 clients case. I do not condone that. I am not so naïve to think that there arent 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 shouldnt 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