Does the Bar have anything to gain from the proposals in the Ministry of Justice Consultation Paper on Preserving and Enhancing the Quality of Advocacy? Introducing the Consultation Paper (CP), Michael Gove, Lord Chancellor and Secretary of State, wrote that he hoped the proposed measures would ‘raise quality standards in our criminal defence market, ensure the market works fairly and make the choice of advocate available more transparent’.
The Quality Assurance Scheme for Advocates (QASA) is going ahead, despite all the efforts of the Bar to derail it. Implementation is supposed to happen sometime quite soon. If, in addition, the Government’s proposals in the CP are introduced, criminal defence advocates will be faced with the prospect of even more monitoring and vetting – a panel system for Crown Court defence work run by the Legal Aid Agency (LAA) with four levels of accreditation. Whatever may be its potential for raising standards, the trouble caused by such a new accreditation system would only be welcomed by most barristers if it led to fewer solicitor advocates in the Crown Court.
The proposals aimed at making the market work more fairly are driven by a concern that the Criminal Bar is seriously affected by the number of solicitor advocates. I urged that solicitors be given the right to appear in the higher courts almost 50 years ago in my 1968 book Lawyers and the Public Interest. It took until 1994, a quarter of a century later, for that to happen. The number of solicitor advocates able to appear in the Crown Court today stands at almost 5,000. Solicitor defence advocates are currently handling 43% of guilty pleas, 29% of cracked trials and 24% of effective trials in the Crown Court. I doubt if anyone in 1994 imagined that that could be the situation within a generation. I certainly did not.
Is it a good thing? Sir Bill Jeffrey in his Review Independent Criminal Advocacy in England and Wales clearly doubted whether it was. (‘The group of providers who are manifestly better trained … as specialist advocates are taking a diminishing share of the work, and are being beaten neither on price (in a system where fee rates are fixed) nor on quality’ (Jeffrey, 2014, p42).) The CP quotes this passage with approval. Sir Bill and the Government want the Criminal Bar to survive (as I do, too). The Criminal Bar is an important public good.
That barristers on average are better advocates than solicitors is not, I think, because they are better trained – which they may or may not be. It is due much more to the fact that the ablest potential advocates have traditionally tended to go to the Bar. The Bar therefore has drawn from a higher average ability pool in advocacy. If it is the case that Crown Court work is increasingly handled by advocates who on average are less able than those who did the work before, that is not in the public interest. But is it unfair and can anything be done about it?
For a solicitor to propose to the lay client that he be represented in a Crown Court case by someone in the litigator’s own firm, from the Bar’s point of view, is a matter of regret. But there is no proper ground of objection on public interest grounds unless the solicitor advocate is not competent to handle the case. If the solicitor can handle the case competently, it is not a valid objection that a barrister could handle it equally well or better. Even if the sole ground of proposing a solicitor advocate was to maximise the firm’s income, there is no proper ground of objection. The only proper ground of objection is if the solicitor advocate is not fit for purpose.
The difficulty for the Bar is that the solicitor is in pole position to influence the client’s choice of advocate. The client will usually follow whatever advice he is given by his solicitor. The CP proposes various ways that the issue might be addressed, starting from the proposition that ‘a client should be able to make an informed choice of advocate on the basis of clear and impartial advice’. This proposition suffers from two defects: (a) clients are not in a position to make an informed choice; and (b) the advice given by solicitors is unavoidably partial.
A client cannot make an informed choice of advocate because he lacks the necessary knowledge. He will have no idea as to the relative merits in the abstract of having a solicitor as against a barrister to represent him; nor can he judge the capacity of the recommended solicitor advocate or of the selected barrister.
The unreality of the concept of client choice is clearest when, as frequently happens, the brief is returned. Even the solicitor has little or no choice then. The decision, usually taken on the day before, or on the morning of, the hearing, is effectively taken by the barrister’s clerk – who will, naturally, propose someone from his own chambers.
The choice of advocate – whether solicitor or barrister – by an informed lay client is a figment of the imagination.
The solicitor who recommends that he or someone else in his firm represent the client is offering advice that may or may not be sound in terms of the advocate’s ability and the needs of the case. It may therefore be good advice. But since the advice benefits his own firm, it cannot ever be said to be impartial. The advice could only be said to be impartial if the client is advised to have a solicitor advocate from another firm or a barrister.
The CP makes various proposals to ‘protect client choice and safeguard against conflicts of interest’:
- Alter the LAA’s standard contract ‘to better reflect the obligation to provide impartial advice to clients on their choice of advocate’. Comment: No objection to the suggestion, but it will not have any effect.
- Require litigators to sign a declaration setting out a summary of the advice on the choice of advocate available and the reasons why the chosen advocate was selected. Comment: No objection to the suggestion, but it will not have any effect.
- Require litigators to sign a declaration making it clear that the client has been fully informed about the choice of advocate available. Comment: No objection to the suggestion, but it will not have any effect.
- Include on the Plea and Trial Preparation Hearing (PTPH) form a specific reference to the obligation on litigators to enable defendants to make a free and informed choice. Comment: Probably not a good idea to drag the issue of appropriate representation into the PTPH. It is difficult anyway to see how it could have any effect.
- The advice to the client to include information about the proposed advocate’s employment status. Comment: No objection to the suggestion, but unlikely to have any effect.
- To restrict the ability of defence firms to instruct in-house advocates. Comment: That would have an effect but, however broadly or narrowly drafted such a rule, it would be contrary to the contemporary philosophy of deregulation and opening avenues for competition. It would quickly be pounced on by the Office of Fair Trading as a nakedly anti-competitive attempt to protect the Criminal Bar. Moreover, it would probably be easy to circumvent.
The CP quotes Sir Bill Jeffrey as to the problem: ‘Most of those I spoke to were at pains to stress that there were some very capable solicitor advocates, and some very poor barristers; but the main area of concern was … relatively inexperienced solicitor advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capability’ (Jeffrey, 2014, p22). The CP innocently denies that the government was suggesting a causal link between the concern about quality and the increase in solicitor advocates, but there is a causal link. The trouble is that there seems to be no proper way for the problem to be addressed.
It was inherent in allowing solicitors a right of audience in the higher courts. We are now experiencing the effect, fuelled not least by the serious economic pressure felt by solicitors’ firms engaged in criminal defence work. It would be a sorry outcome if the Criminal Bar were to be seriously weakened or depleted by less good solicitor advocates, but attempting to meet this by anti-competitive initiatives cannot be the way forward.
Both sides of the profession have rules that practitioners should not take on work beyond their level of competence. Those rules seem not to be as effective as one would wish. The best hope is that the combination of QASA and the proposed new LAA panel system effects controls that weaker practitioners are not always ready to impose on themselves.
Contributor Michael Zander QC is Emeritus Professor, LSE
Vice-chairman of the Criminal bar association, Francis Fitzgibbon QC, gives the Cba and a criminal practitioner’s view of the quality controls on advocacy
Professor Zander thinks that the proposals in the Ministry of Justice’s Consultation Paper on the Quality of Advocacy will not help the criminal Bar to claw back advocacy work from solicitors, who are taking it over in increasing numbers. He also thinks there is nothing unfair about solicitors doing work that was the traditional preserve of the Bar.
What he does not consider is why solicitors are doing 43% of guilty pleas, 29% of cracked trials and 24% of effective trials in the Crown Court. It’s not because thousands of them have suddenly decided to unleash their frustrated inner Rumpoles. The reason is that advocacy fees have been cut less harshly (but harshly nonetheless) than the litigation and magistrates’ court fees on which they used to depend. For example: at one time, solicitors could claim a fee for sending an ‘outdoor clerk’ to assist the barrister during a trial. They would pay the clerk a proportion of the fee and keep the rest. They could charge an hourly rate for preparing cases. The well-managed solicitor’s firm could provide an excellent service to its clients, prepare cases and perform all the litigation tasks that are needed for trial, and show a reasonable profit at the end.
Those days have long gone. Many solicitors have been driven against their wishes into advocacy. Some have taken a risk by employing solicitors with advocacy rights and barristers, with all the attendant costs of being an employer.
Some solicitor advocates are first class, but many are not. A firm that runs on the tight margins imposed by the legal aid regime will be unable to pay top rates and may not attract the top talent. For an ambitious and talented would-be advocate, the Bar has remained the more attractive option: though it is (and has always been) an insecure profession, the independence it brings has a special value. Having no boss but yourself is liberating.
If you are employed as an advocate, on the other hand, your employers will give you cases because they have to – whether you are good at the job or not. The work won’t dry up. At the Bar, you have to impress your clients continually, or they’ll brief someone else.
Professor Zander says that ‘Even if the sole ground of proposing a solicitor advocate was to maximise the firm’s income, there is no proper ground of objection. The only proper ground of objection is if the solicitor advocate is not fit for purpose’. The introduction of the new legal aid contracts for solicitors guarantees work for the contract winners: the consolidation of their market virtually eliminates competition. There will be no great incentive for the solicitor to strive for quality, because the rival firm up the road has disappeared. On the contrary: the pressure will be pay as little as possible and handle as many cases as possible. The financial motive for keeping work in-house, while perfectly understandable, inherently depresses high standards.
Professor Zander misses an important element of the Consultation Paper: the action to stop the payment of so-called referral fees, properly described as bribes. While no one will name names (so far), it is widely recognised that some unscrupulous lawyers on both sides of the profession will pay, and insist on being paid, a share of the legal aid advocacy fee to get the brief. It is said that advocates will sacrifice up to 40% of the fee to the instructing solicitor to get or keep a brief. There appears to be a secondary, black market in briefs, in which the case goes to the highest bidder. This is public money, intended to pay for advocacy, not to be divvied up in brown envelopes. No one knows how prevalent this practice is: some say it barely exists and is a non-problem, while others maintain that it’s rife. But the same financial pressure that pushes honest solicitors into advocacy makes the practice of buying and selling clients attractive to the sharks. It is unethical, probably illegal as bribery, and it guarantees that quality is not the criterion in the decision of who gets the brief.
The Bar wants nothing more than a level playing field on which to compete with solicitors for advocacy work. It asks for no special treatment for itself, believing that barristers generally win on quality and price. However, it asks that solicitors do not privilege themselves when deciding who to brief, just so that they can benefit financially.
The Bar has become much better at putting its goods in the shop window. Not long ago, it was a disciplinary offence to hand out business cards – it was ‘touting’. Now chambers and individuals have websites. Many lay clients look at these, and say who they want to represent them. The in-house advocate may be the best person for lots of cases, but when you have 4,000 or so barristers to choose from, why not go for one of them when the case calls for it?
The proposed panel for defence advocates (‘advocates’, please note, not barristers) is not an alternative to the derided QASA: it is intended to mirror the CPS scheme, to ensure that only people of the right experience and skill can receive public money in the cases graded according to seriousness. If it works properly, it would cut out some of the dead wood, which neither side can deny it has. The intention is not to favour the Bar, but to maintain quality for all advocates.
We don’t know which if any of the proposals in the Consultation Paper will see the light of day, and Professor Zander may be right when he says none of them will help the Bar to regain its dominance in advocacy. The Bar does not deserve that position if its people are not as good as the solicitors; but if quality is allowed to determine who gets the work, then the best advocates have nothing to fear, whichever professional flag they choose to sail under.