Law Society opposes restrictions on use of in-house advocates

Government restrictions on the use of in-house advocates will limit choice to the detriment of clients, the Law Society has claimed.

Responding to a Ministry of Justice (MoJ) review of criminal advocacy, the society said it was strongly opposed to the suggestion that the instruction of in-house advocates would represent a conflict of interest.

On the contrary, the Law Society's president, Jonathan Smithers, said that such restrictions would limit, rather than increase, client choice, and might stop defendants from choosing the advocate they want 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,' he added.

'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.'

CILEx's chief executive, Mandie Lavin, supported the Law Society's argument, saying: 'In choosing their advocate, the important thing is for clients to have the information they need to make the right choice for themselves.

'Restricting choice is no guarantee of quality, and should only happen where there is evidence of client detriment. Clients should be free to choose the advocate that's right for them, whether in-house or external.'

In its response to the consultation, the Bar Council backed calls for litigators to sign a declaration confirming their client was fully informed about the choice of advocate available to them.

The Bar also urged a client signature confirming they have been advised in plain and simple terms, and understand their right to choose a class of advocate.

Bar Council chair Alistair MacDonald QC said: 'Any declaration must require a litigator's signature. There are serious contractual and professional consequences if a litigator is found to have lied on a signed declaration. This can't be a tick box exercise.'

However, highlighting the importance of client choice, the Law Society expressed concern that the government consultation did not address the operation of the 'cab rank rule' or the Bar's returns policy.

Responding to a proposal for a new statutory ban on referral fees, the society emphasised that it supports the existing regulatory ban on referral fees but would not oppose the introduction of new legislation.

By contrast, the Bar Council has called for 'an absolute prohibition' on all inducements beyond 'kickbacks'.

'It is a matter of principle that public funds provided to pay for advocacy services should not be used to pay for "kickbacks",' said MacDonald.

'Nor should such considerations play any part in the process of advocate selection. Every effort should be made to capture all arrangements that act as an inducement. The best possible advocate for the case should be instructed, regardless of the financial interests of the lawyers involved.'

John van der Luit-Drummond is deputy editor for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD