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Law Society guidance where Counsel declines to act in Crown Court matters

Posted: 27 April 2018

The Society understands that in reaction to the new Advocates Graduated Fee Scheme (AGFS) proposed by the Ministry of Justice (MoJ), certain barristers’ chambers will no longer accept work under the AGFS from 1 April 2018.

The Society’s position

After more than 20 years without any sort of basic cost of living pay rise, and an 8.75% cut to solicitors’ fees in 2014, criminal law is no longer an attractive career option for young solicitors or barristers. Data analysed by the Law Society paints a very bleak picture of a future England and Wales littered with ‘advice deserts’, where the remaining criminal solicitors will have retired with no young solicitors coming in to take their place.

The Bar’s reaction appears to be yet another result of the impact of years of chronic under-funding of the criminal justice system, and of defence lawyers in particular. The Law Society has recently brought judicial review proceedings in a bid to reverse a cut to the Litigators Graduated Fee Scheme (LGFS), which is likely to leave many of our members facing serious financial difficulties.

The Society recognises that collective action by the profession as a whole, or by local law societies or groups may be caught by the UK competition law prohibition of anti-competitive agreements and trade association decisions and is not calling for such action to be taken. But in the current circumstances, it will not be surprising if many solicitors decided independently that for professional or commercial reasons, they are unable to take on work where they cannot be confident either of finding an advocate for the case, or of it being economically viable to undertake the advocacy in-house. (See: Law Society Practice Note on not undertaking work that is uneconomical).

Advice for solicitors

Solicitors have duties under the Code of Conduct to their clients and to the court, and should act in their client's best interests in liaising with the court and the Legal Aid Agency to manage the impact of the inability to find an advocate. The Code also provides that solicitors should not undertake work which is outside their competence.

Thus, while a solicitor-advocate is free to take on such work if they choose, they are under no obligation to do so, and positively should not do so if they believe the matter to be beyond their competence. (See: You and Your Client - Chapter 2).

We have seen the Note from the Resident Judges of the Northern Circuit, which we appreciate is designed to help defendants and to ensure the smooth administration of justice. However, we would like to reiterate that we do not consider that the unavailability of counsel – for whatever reason – creates an obligation on a solicitor -advocate in the instructing firm to take over any of the formerly instructed barrister’s responsibilities, if they do not feel competent to do so. Nor is there an obligation in any new cases to take on the advocacy if an external advocate cannot be found.

Solicitors must make a decision as to whether they are competent to take on the work (or any aspect of it) and act accordingly. If this means finding someone else to do it, they will need to be satisfied that that person is competent and that this is in accordance with their client’s instructions.

The Judges’ Note indicates that all defence solicitors attending a PTPH will be permitted to address the court and engage in the PTPH process. In a situation where the court grants such blanket permission to solicitors to address the court due to the unavailability of Counsel, each solicitor should consider whether he or she is capable of providing the advocacy in the circumstances in question, and whether it is appropriate to make themselves available under the blanket grant of permission. In complex cases or those where the consequences of poor advocacy for the client could be an issue, the solicitor would need to weigh the matter up with great care. In some cases it may be more appropriate to try to find a suitable advocate.

Solicitors will need to consider whether they have the capacity to undertake the advocacy in-house. In doing so, they will need to consider whether they or other advocates in the firm have the experience and competence to act as an advocate in the best interests of the particular client. They will also need to take into account their other contractual obligations and ensure that these are not impacted by taking on this additional work, including the need to meet the requirements for duty solicitors to undertake 14 hours of contract work per week.

The Society encourages all firms to consider their own circumstances in making any decision as to whether or not to take on the advocacy in a case where counsel has declined or ceased to act. Moreover, if a solicitor is aware that it may be impossible to find a suitable advocate in a case, they should consider whether it is appropriate to take on the matter at all.

Members may wish to consider the SRA guidance recently published in response to a ’question of ethics’ query. While this encourages solicitors to make proper efforts to find a replacement advocate, it also states that “It would not be acting in the client’s interests to take a matter on knowing you are likely to be unable to complete it on their behalf”.

If you are in any doubt as to what course of action you should take in a particular case, we encourage you to seek appropriate advice on your position, whether from the Law Society’s Practice Advice Service, the SRA’s Professional Ethics team, or your own legal advisers.

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