Stuffing the Genie

The opposition to MOJ “reforms” and relentless cuts was founded on two beliefs; that the unity between Solicitors and Barristers was essential and that that any new “settlement”, refunding, withdrawal of two tier, could only be achieved by action, namely bringing chaos to the criminal justice system. 

 

However self-interest was manifest in the positions of the so called big firms group who always sought consolidation, i.e. larger market share through the gift of duty solicitor work at better prices, similarly the pursuit of a narrow self-interest by the CBA leadership (post the admirable Michael Turner QC) who sought not to engage in action by rather, like Tom Thumb, to perch in the ear of the Minister of Justice murmuring a protectionist agenda. 

 

Two tier now lies in the chaos of satellite litigation ironically “be” by some disappointed BFGers and we are now asked to respond to the product of those CBA murmurs, an MOJ consultation paper entitled “Preserving and Enhancing the Quality of Criminal Advocacy”.

 

Meanwhile in the real world the dissolution of the traditional vehicle for the delivery of legally aided criminal services, partnership and chambers continues at pace with ABS’s, LLPs, tendering, in-house counsel, solicitors higher court advocates, duty “solicitors” who are in fact self-employed barristers attaching themselves to firms for upfront fees, a tranche of redundancies for senior duty solicitors, the desertion of talented lawyers from both sides of the profession, and absence of training contracts and pupillage, the concentration of ownership in contracted firms in fewer hands, the probable loss of many BME firms through the tendering process and so on. 

 

It is correct that endless cuts to litigator fees has driven forward solicitors higher court advocates effecting the barrister’s market share.  However, the consultation ignores any fundamental criticism of cuts but prefers to make the assertion that the selection of in-house advocates “may lead… intentionally or otherwise, being unduly influenced by financial interests” (para 1.9)

 

In addition to that perception of inappropriate instruction of solicitor advocates is an obsession to further ban the illegal payment of referral fees.  It is worth remarking that these payments are made by barristers to solicitors and it is paradoxical that the Criminal Bar’s leadership should be so exercised with their further ban.

 

Two solutions are proposed to the perceived problem of declining quality and to create an informed choice of advocates.  Incidentally declining quality appears evidentially to be based upon a level of concern expressed by the Judiciary.  The first solution is a panel for advocates and the second a new form to be completed called the “Client Choice Declaration”.

 

How pathetic all this is and how lacking any cost benefit analysis.  The theme is that Solicitors are not as well trained or as good as Barristers.  There are or course some poor Barristers but never the less the public position of the CBA is that Barristers are intrinsically better because of training.  The solution would appear to lie in levelling up the playing field of training not in the creation of a further expensive bureaucracy administering a panel. 

 

In short in the face of some 24% of effective trials now being conducted by solicitor advocates it is an attempt to push the genie back into the lamp as the genie won’t grant the wish that all advocacy is kept for the Bar.

 

It is also another attempt because that was the intent of QASA.  We now have the ludicrous idea that the introduction of a panel will cure the supposed problem of quality and that it will sit alongside QASA. 

 

The Client Choice Declaration is not worth the paper it will be written on. 

 

The ban of referral fees or its further ban will remain difficult to police if neither barrister nor litigator is willing to report what private deal they have entered into.

 

One can only conclude that these are skeleton arguments, arguments made without flesh, the bare bones offered up as a reward to Tom Thumb.  One can foresee that like the almost simultaneously published revised AGF scheme these proposals are likely to be laid down in the long grass and only rolled out each Halloween for trick or treat.

 

Meanwhile the pauperized, under resourced legal aid system goes unchallenged.  It is a bizarre exercise in the irrelevant, a definition for the expression “stuffing the genie”.

Greg Powell

6.11.2015

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