Solicitors should explain their reasons for recommending a particular advocate and sign a declaration that they have explained the choices available to their lay client, the Bar Council has said.
Responding to the Ministry of Justice’s consultation Preserving and Enhancing the Quality of Criminal Advocacy, the Bar backed plans for a referral fee ban and urged the Government to outlaw all inducements. The only consideration, it said, should be the quality of the advocate.
It also called for a Solicitor Regulation Authority-style reporting service through which advocates and others could confidentially report referral fee breaches.
Former Bar Chairman, Alistair MacDonald QC, said: ‘It is a matter of principle that public funds provided to pay for advocacy services should not be used to pay for kickbacks.’
The Bar Council supported the Government’s proposal for a criminal defence advocacy panel, loosely based on the Crown Prosecution Service model, so long as safeguards are put in place to ensure it operates effectively and is independent of government.
It also backed calls for solicitors to sign a declaration confirming that clients have been fully informed about the choice of advocate available to them, and suggested that solicitors provide a ‘brief explanation’ of why the type of advocate has been recommended and obtain signed confirmation that their clients have been advised of their right to choose, in plain and clear language.
MacDonald said: ‘Any declaration must require a litigator’s signature. There are serious contractual and professional consequences if a litigator is found to have lied on a signed declaration. This can’t be a tick box exercise.’
However, the Bar Council did not support the proposal to prevent solicitors from instructing advocates employed in their own firms, so long as they were the best person available to conduct the advocacy in a particular case – a proposal that the Law Society also slammed.