In many areas of the country , the Bar is refusing to take on work post 1/4/18 . Solicitor organisations have indicated their willingness to support the Bar in those areas where action is being taken . This has often involved solicitors in making numerous enquiries of Chambers both in and out of area to see whether suitable counsel is available and keeping a record of those attempts .
In many cases , suitable alternatives cannot be found and solicitors will then need to keep the Crown court informed .
The Law Society has published guidance to solicitors to remind them that where Solicitor Advocates are available , they may well not have the appropriate levels of expertise for the particular case ,to be able to stand in for Counsel .
The CLSA previously issued a statement about the action https://www.clsa.co.uk/index.php?q=statement-agfs-6-april-2018
Of course, the MoJ and LAA are very well aware of the problem and we know that in some of these cases , the LAA's contract manager has contacted the firm in question and reminded them of the existence of PDS and the availability of its Counsel .
We are not at all sure why Contract managers have taken it upon themselves to try and ensure representation is available but it would appear that they have
Clause 2.14 of the Contract provides :
‘You are, and acknowledge that you are, an independent provider of legal services. You are not our employee, agent or partner (in law) and must neither act as such nor so as to give the impression that you are our employee, agent or partner (in law)’..
We would simply remind solicitors of the contents of Clause 7 of the 2017 Contract (below) and of Outcome 2 of the Code of Conduct to ‘provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice’.
‘Clients’ interests and independence
7.2 In performing Contract Work, you must act in the best interests of your Clients and be uninfluenced by any factor other than the Clients’ (and potential Clients’) best interests. Any breach by you of this Clause 7.2 will deemed to be a Fundamental Breach.
7.3 Where you instruct Counsel or in-house advocate to conduct Crown Court advocacy services, before giving such instructions you must consult the Client about the use and the selection of Counsel or in-house advocate and advise the Client of:
(a) the name;
(c) experience; and
of this Counsel or in-house advocate to conduct advocacy in each such case having regard to the nature of that case and its complexity and the existence of alternative Counsel or in-house advocate whom the Client may choose to be instructed (subject to availability). In circumstances where you have determined through your reasonable enquiries that there is no alternative Counsel or in-house advocate actually available, you must also advise the Client of that fact.
7.4 Where Counsel or in-house advocate is instructed pursuant to Clause 7.3, if the chosen Counsel or in-house advocate becomes unavailable you must take all reasonable steps to instructs another Counsel or in-house advocate of equivalent standing and, so far as is practicable, advise the Client of the merits and suitability of the proposed replacement.
7.5 You must keep a Record (in accordance with the provisions of Clauses 8.3 and 8.4) to demonstrate your compliance with Clause 7.3.
7.6 If you become aware of any act or omission that would justify a claim against you by a Client, you must promptly advise the Client to obtain independent advice (and keep a copy of your letter on the Client’s file)’..
It is difficult to imagine a situation where a solicitor would be able to confirm to a client that " he is not aware of any reason why the chosen advocate is unsuitable …etc etc " when the solicitor has no knowledge at all of the PDS or the quality of its advocates. It would appear unarguable that a PDS advocate is not automatically capable and sufficiently experienced any more than it should be assumed they are not. Firms may consider the PDS but clients should be made aware of the status of PDS employees and be given sufficient information to make an informed choice..
Crime Contract 2017 – Client letter for all Crown Court cases pursuant to clause 7.3
Re: Instruction of Advocate
We propose to instruct [NAME], who is a person authorised under section 18 of the Legal Services Act 2007 to provide advocacy services in the Crown Court. [Name] qualified in [year] and in my view has the necessary experience and skill to conduct your case. I am aware of no reason as to why s/he is unsuitable based on past instruction and can confirm that s/he is on our register of approved advocates. In coming to this decision, I have had regard to the nature of the case and its complexity. If you would prefer us to make enquiries of any other advocate of your choosing then please let us know as soon as possible so that we can make enquiries as to their availability.
Alternative if using advocate for the first time:
Re: Instruction of Advocate
We propose to instruct [NAME], who is a person authorised under section 18 of the Legal Services Act 2007 to provide advocacy services in the Crown Court. [Name] qualified in [year] and in my view has the necessary experience and skill to conduct your case. I am aware of no reason as to why s/he is unsuitable based on my review of their chambers profile and having spoken to their [clerk/supervisor] as to their past experience. In coming to this decision, I have had regard to the nature of the case and its complexity. If you would prefer us to make enquiries of any other advocate of your choosing then please let us know as soon as possible so that we can make enquiries as to their availability.
PDS can be contacted at the building they share with the CPS and Ministry of Justice at Petty France :
Public Defender Service Advocacy Team
Business Suite, Ground Floor
102 Petty France
London, SW1H 9AJ
DX: 328 London