Unfair Terms

Competition with solicitor-advocates is causing deep concern, writes Desmond Browne QC

In recent weeks I have visited chambers in Birmingham, Nottingham, Leeds, Manchester, Liverpool and Newcastle. Everywhere I was met by deep concern about the wholly unfair terms on which solicitor-advocates now compete for Crown Court work. The grave consequences are now being felt in many ways, not least the reduction in the number of pupillages starting this autumn.


 


Referral fees

Nothing is more striking than the position over referral fees. At the Bar paying a referral fee would be misconduct justifying disbarment. For some solicitors, it is becoming all part of a day’s business.

In my inaugural speech as Chairman, I mentioned the solicitor who openly emailed a barrister’s clerk: “We do prefer solicitor advocates to the Bar for our overflow, because they make a payment to us.” In March I saw in the Law Society Gazette an advertisement offering £150 per case for referrals, including the transfer of ongoing claims. There was even an offer to consider profit share agreements.

On the website of the Solicitors’ Regulation Authority (SRA) there remains a statement made last year by its Chair: “Solicitors who allow referral arrangements to undermine their role as independent advisers let down their clients and the profession”. The SRA was therefore determined to stamp it out. This February the SRA announced that it had found generally unsatisfactory levels of compliance and the desired improvement had failed to materialise. So what did they do? They decided that a ban was impracticable: “the commercial imperative to use referral arrangements is too intense and their use too widespread.”

The time has now come for the Legal Services Board to intervene: I have asked David Edmonds, its Chair, to investigate the matter as one of the greatest urgency.


CPS costs

The Treasury Red Book, which accompanies the Budget, announced that amongst £85m savings expected from the Ministry of Justice, on top of the previously budgeted figure of £1bn, is £16m from the use of an expanded cadre of CPS Associate Prosecutors and Crown Advocates. The avowed purpose is “to bring down the costs of prosecution”.

No one could quarrel with the CPS providing the taxpayer with value for money. But it now becomes more important than ever that there is transparency over the data needed to allow an accurate comparison of the cost of in-house advocacy and instructing outside counsel. This was a point rightly made by Peter Lodder, Chair of the CBA, in his evidence to the Justice Select Committee of the Commons. It is another issue we are pursuing urgently.


Jackson LJ and CLAF

2009 seems to be the year of acronyms. One old friend CLAF – a Contingency Legal Aid Fund – is now back on the agenda with the publication of Lord Justice Jackson’s Preliminary Report on Civil Litigation Costs. The idea of a CLAF is to grant legal funding to chosen applicants on condition that they pay a percentage of any amount recovered back into the fund. It thus becomes self-financing.
Jackson LJ expresses the provisional view that, following the retraction of legal aid, either CFAs or some other system of payment by results (such as a CLAF) must exist in order to facilitate access to justice. The Bar got ahead of the game by asking a group under Guy Mansfield QC to look at this topic afresh. Their report dated 27 February 2009 can be read on the Bar Council’s website.
In Jackson LJ’s opinion, at first blush there is some attraction in principle in the group’s proposal, but there is still a great deal of detail to be worked out. This includes the question of the source of initial seed-capital. Guy’s group will be working on these issues in the months to come.

In the meantime it was intriguing to hear the views of the Shadow Lord Chancellor, Dominic Grieve QC, in his Boydell lecture. He expressed delight that a CLAF was being re-considered, because no government could provide more money for legal aid. On the other hand, he was harsh about CFAs, saying they had corroded and undermined the standards of the legal profession.


Lawyers without rights

When Hitler seized power in 1933, approximately half the German legal profession were Jews. By 1938 they  had been banned from the profession altogether. The German Bar Association (BRAK) has recognised the injustice done to their colleagues by bringing to the Temple Church an exhibition about their persecution first shown in Berlin. In his introduction, Lord Phillips rightly says that the Temple Church is just the place for this haunting show.

Desmond Browne QC is Bar Chairman

 

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