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Is quality really the issue in the trade war between criminal advocates?

Business models, rather than barristers' standards, are what the government and regulator should be concerned about, suggests Mark Stobbs

23 February 2016

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Michael Gove may have abandoned plans for criminal legal aid contracts and fee cuts, but he still has to deal with the trade war between the professions over criminal advocacy.

Essentially, the dispute boils down to business models and the fact that the Bar makes barristers dependent on their competition for work at a time when there's less work and fees are falling.

Also, solicitor-advocates didn't really trouble the criminal Bar until advocacy fees became attractive. Suddenly, the number of solicitors with higher court rights quintupled, and I speculate that few are regular trial advocates - most simply do administrative and sentencing hearings in the Crown Court. But it takes work away from the Bar and this rankles: it feels like an abuse of power.

One option might have been for the two sides to work together to try to find business models to fit the current financial climate. Instead the Bar cried foul: quality is falling because solicitors hold on to work that could be done better by barristers. They believe that this could be the end of the self-employed Bar and, therefore, of expert advocacy.

Solicitors will say they take their obligations to their clients seriously. It's a rare firm that never instructs a barrister - they'll need the expertise or the convenience quite often. The ability to do advocacy, however, has enhanced careers and, surely, increased client choice. In lots of cases an advocate from the firm that knows the case will be preferable to a barrister sent along by chambers at the last minute (there are quite a few duff barristers out there). That doesn't mean the Bar will die, just that it might reduce.

Hard evidence

Independent evidence is slim. Judges worry about declining advocacy standards. Nobody knows whether this is a perception akin to policemen looking younger, because solicitors are doing work they shouldn't, or because legal aid fees don't attract the right quality of individual. Cardiff University research, on a small sample, suggested that advocates may overestimate their capabilities. The disparity between solicitors' compulsory advocacy training and the Bar's is undeniable, as is that financial incentive to instruct in-house.

None of this proves that there is a problem of quality, let alone what a proportionate solution might be. But it gives the government enough to persuade itself to do something if it wants to.

And the government seems to have been persuaded, whether because it wants to please the Bar or because it thinks there's a genuine problem. Chris Grayling appointed Sir Bill Jeffrey to look
at the question. His report
was followed by the latest consultation, which floated,
most significantly:

  • A panel of defence advocates, appropriately quality assured (similar to another quality assurance scheme for advocates QASA); and

  • Looking at protecting client choice: for example, solicitors advise in writing of clients' right to an external advocate and justify their recommendation, or restrict the use of in-house advocates altogether.

These will cause problems for both sides. While solicitors will undoubtedly ponder whether additional hurdles make providing advocacy in-house financially sensible, the Bar won't welcome another scheme on top of QASA, let alone one run by the government. There's no guarantee that any panel of this sort will maintain existing standards, and who needs duplicate schemes?

Regulating the instruction of in-house advocates seems blatantly aimed at protecting the self-employed Bar. If the quality of all advocates is assured, why does the client need the choice of an 'independent' advocate? Why does the business model matter? The Bar shouldn't kid itself that solicitors won't find good reasons to recommend in-house advocates if it suits them. If the restrictions are stronger, firms that provide a holistic service (often employing barristers as well as solicitors) will face major challenges to their business models.

Self-preservation

The Bar says that its model secures a corps of expert advocates. Maybe so, but it certainly doesn't guarantee great advocacy. Protectionism rarely provides an incentive to improve quality. Restricting solicitors from providing advocacy in-house will reduce the diversity of representatives available and of routes for advocates to learn their craft.

It would be surprising if quality hadn't declined along with fee levels: perverse incentives do exist and neither side has great mechanisms for assuring quality. What is unfortunate is that a legitimate debate about quality has become entangled with a trade war with the self-employed Bar determined to protect its
own business model. Surely, at least some more testing of the arguments is needed before the government goes ahead with proposals that are likely to cause damage to a major part of the criminal justice market and impose burdens on both sides that neither need in the present financial climate.

Mark Stobbs is a consultant and a former director of legal policy and director of the Bar Standards Board @markstobbslaw markstobbslaw.co.uk 

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Business development & Strategy Procedures The Bar