Instructing an agent was, and in many cases still is, a matter of thumbing through a directory and phoning a firm to see if it has anyone available, then sending off a bundle of documents – probably a day before the hearing – and hoping all goes well. If it does not, the usual move is to blame the agent.
And since those undertaking agency work frequently do so as a filler to occupy staff who are not busy, and as a useful training ground for new advocates, it matters less if things do not go swimmingly.
Practice management standards and the specifications laid down in ISO 9001 (formerly BS 5750), state that firms should always:
have clear selection criteria
where appropriate, consult with or at least inform the client
maintain a register of agents and monitoring results
ensure instructions clearly describe what is required
provide for payment of fees
record the reasons for selecting agents not previously used
Since practice management standards are still not mandatory, and only 12 per cent of firms currently hold a legal aid franchise – which ISO 9001 was designed to regulate – selecting agents by the taxi rank principle of first come, first served is probably still the best way.
To put the quality of your service in the hands of another firm is almost an act of trust rather than judgement, especially if you know little about them. Yet their performance will reflect on how your client perceives you.
The first difficulty in selecting an agent is the lack of relevant information. The usual directories do not always identify solicitors who are members of a specialist panel like personal injury, medical negligence or child care.
The claims made by firms that undertake agency work are based on their own, rather than an independent, view of their expertise. Members of LawGroup UK are reviewed independently every year, as are firms with a legal aid franchise, but this is not always apparent from other directories.
In an attempt to provide better information, this group – a national network of 85 solicitors firms – has produced a directory of its members, which is available to non-members. It includes information not just on work done and courts covered but on personnel and specialist expertise, such as having qualified mediators. It also lists possession of a legal aid franchise to indicate service quality.
Having selected an agent, 'terms of engagement' should be agreed between principal and agent, covering quality standards, delegated authority, costs and how quickly you need to be informed of the result. Most agents now fax principals the moment a result is known, no matter how trivial the hearing might be.
But firms still do not use their 'experts register' for agency work in the same way as they do for counsel and expert witnesses. Indeed, if the evidence on compliance with practice management standards is to be believed, not all firms even have such a register.
The White Paper on the future of legal aid has introduced another factor. It suggests fees for agency work, like counsel and experts' fees, will have to be paid out of the money the solicitor receives for the case. This could give rise to more competition and even a recognised fee structure.
The client is usually offered little information on the process, a problem the White Paper is seeking to tackle. In an attempt to improve the degree of communication between client and solicitor, the paper suggests clients should know as much about the agent instructed as the solicitor does.
This again highlights the need for more detailed and objective information to be produced nationally on all firms that undertake agency work.