I represent all barristers in England and Wales – and some of the most talented work in-house with leading organisations and businesses across the country and internationally.
It follows, therefore, that I have no objection to law firms looking to advocates working in-house to handle clients’ advocacy needs. (Indeed, I have helped devise and run the training of advocates in such teams.)
With the Legal Services Act now on the statute book, we can expect such models, and others like it, to be increasingly explored as the market looks to offer new forms of lawyering to meet consumer need.
But there are some important issues that must first be addressed. First, the tightening rein on public funding must not be used as a premise to instruct in-house advocates who are not sufficiently skilled or experienced to undertake the case. The advocacy fee in publicly funded work must not become an incentive in and of itself to instruct in-house if a more skilled advocate is available. This has been occurring.
Second, the existence of in-house counsel within a firm of solicitors must not create a perverse incentive to restrict or distort a client’s choice of advocate. The competition and human rights law implications of such a consequence need not be spelled out here. The client must be free to choose, and have access to, the advocate most suited to their needs.
Third, the in-house approach must not conflict with, or undermine the interests of, justice. If a team is too stretched, or simply inexperienced in a particular area of law, then it must be free to say so without fear or favour – even at the risk of contradicting a firm’s ‘brand position’ as a one-stop shop.
Fourth, the use of in-house counsel must not increase cost unfairly for the client. The referral bar is hugely competitive, with each individual barrister vying for work. The rates charged by senior barristers in private practice compare very favourably, certainly when you take into account seniority and expertise, to those rates charged by law firms for assistants. Using referral advocates represents extremely good value for money. Overheads are low and modern chambers have first-class administration systems in place.
I do not see why our leading and responsible City law firms, wanting to offer advocacy as integral to their suites of client services, will not fulfil these criteria. Indeed, many have done so for years, and to good effect. The immediate availability of counsel to a client attending a solicitors’ office at short notice can have potential advantages, and we should not underestimate those.
However, the particular area where I have clear, first-hand experience (sitting as a recorder) of the use of in-house advocates in law firms occasionally undermining quality and the interests of justice is in publicly funded criminal legal aid.
I said in my inaugural speech to the Bar Council last December: “The comparative attraction of ‘advocacy’ to some firms of solicitors, as a service that they themselves might offer, may be causing them not to instruct barristers until errors have been made by inadequate in-house handling of work. I shall be working with the Law Society to ensure that professional standards are never compromised in the way that clients are supported by law firms.”
These comments were made in the context of a debate about public funding where, as I say, there have been problems. I chaired the working group that devised the protocol with the Crown Prosecution Service to address this issue, and I wish to do the same with solicitors.
This is a specific issue relating to publicly funded criminal legal aid, where some less scrupulous firms of solicitors are exploiting the funding mechanism to retain fees for work which should rightly be passed to well-qualified and able barristers to deal with the advocacy needs of clients.
But none of this means we will not see new models of service provision, including teams of counsel in-house at law firms – and that is something we should welcome as part of a diverse and evolving legal services market.