Law Society will strongly oppose measures to restrict use of in-house advocates
Clients should be able to choose which lawyer they want to represent them in court, the Law Society said today.
Responding to a Ministry of Justice (MoJ) review of criminal advocacy, the Law Society said it was strongly opposed to a suggestion that instructing an in-house advocate represents a conflict of interest.
The Law Society emphasised that solicitors have an obligation to act in the best interests of their clients, which means advising on a range of issues, including advocacy options. Many clients choose to instruct a solicitor-advocate to represent them because they know the client and understand their issues and concerns.
Welcoming the opportunity to focus on ensuring the quality of advocacy and that clients have the right to choose the advocate who represents them, Law Society President Jonathan Smithers said: “Restrictions on in-house advocacy by suggesting that a conflict of interest arises, would limit, rather than increase, client choice, and may stop clients from choosing the advocate they would wish to represent them in court. We wholeheartedly support the principle that advocates of the highest quality are available for clients, and this includes solicitor advocates.
“If the Government decides that a conflict of interest exists, this would have profound implications for every decision a solicitor makes on a client’s case which could increase the cost of litigation. ”
The Bar Council has also stated its opposition to restricting the ability of defence firms to instruct in-house advocates in publicly funded criminal cases.
Highlighting the importance of client choice, the Society expressed concern that the consultation did not address the operation of the “cab rank rule” and the returns policy of the bar, which occurs when a solicitor instructs an external advocate, and the selected advocate becomes unavailable at short notice, so a different advocate is sent to Court, chosen not by the client but by the Clerk to Chambers. This choice may or may not be appropriate, given the nature of the case.
Responding to a proposal for a new statutory ban on referral fees, the Law Society emphasised that it supports the existing regulatory ban on referral fees.
Law Society President Jonathan Smithers commented: “Although we see no need for a statutory ban, we would not oppose its introduction.”
The Law Society supports proportionate measures to enhance and assure quality of advocacy. However, given the imminent launch of the Quality Assurance Scheme for Advocates (QASA), the introduction of a proposed Crown Court panel scheme represents unnecessary duplication. The Society also strongly objects to the suggestion that the number of advocates qualifying for the panel should be limited. The imposition of a panel with restricted membership could expose the State to allegations that it was creating a two tier system.
Law Society President Jonathan Smithers added: “Any restriction purely based on numbers would bear no relation to the quality of the advocates, which is a stated aims of these proposals and would further limit not enhance client choice. “