Why free biros are ruining British justice

Posted: 23/05/2012 in Barrister, Legal aid, Solicitor
Tags: ,

FTD is never found with a decent pen in his pocket. Whilst his plummy contemporaries pull out beautiful Mont Blanc pieces, no doubt given to them for some achievement by a friend or family member, I’m often without a pen at all, or some broken biro that I’ve chewed the end off.

Don’t get me wrong, I’ve got a couple of nice pens (one, very nice bought from my Grandparents), but they inevitably run out of ink and I inevitably have lost the last batch of £10 a pop cartridges I bought for them.

I’ve never been able to hold on to a pen for long since I was a kid.

My solution was generally two fold: 1) smile at a friendly usher and be provided with a piece of bulk bought Court Service stationery, this is now impossible since Court Staff were forbade pens and now must do with eco friendly economical pencils OR 2) hunt around the robing room/advocates’ room for some abandoned ill functioning writing implement.

But nowadays, I have a new solution. The free biro. Ah yes, that little piece of plastic marketing that adorns many a solicitor’s conference desk. I now collect them, in large quantities, probably to the extent that ought to be frowned upon.

Thing is, that little piece of plastic represents the demise of our jusitce system.

‘Eh?

No, haven’t lost my mind, honest.

But it’s back again, the great Solicitor Advocate v Barrister debate.

In short, solicitor advocates are qualified solicitors who take an extra qualification during practice which entitles them to practice in all Courts all the way up to the Supreme Court. They can qualify in civil, or criminal law, or both.

Solicitor Advocates complain that they are treated rudely by the Bar and are assumed to be somehow inferior.

Barristers complain that Solicitor Advocates take briefs which they are not capable of doing and often put profits before representation.

The reality

I have seen barristers be incredibly rude to and about solicitor advocates. I had one particularly unpleasant member of the Bar bark at me for having lunch, in public, with a solicitor advocate.

I have had solicitor advocate friends complain to me that they are pressured into taking cases that they don’t feel ready for or are not capable of. And, I’ve seen solicitor advocates sit behind barristers in cases, commanding large fees where they have done nothing and are merely paid for sitting there.

As a junior junior, I’ve grown up with solicitor advocates. ‘Favourite solicitor’ one of the people who has helped my career most has become a solicitor advocate recently. I don’t dislike solicitor advocates, I don’t feel superior to them, they just do a different job then I do.

I recently co-defended with  a solicitor advocate, I was first on the indictment so took the lead. When we got to the end of the trial and the jury went out he told me that it was his first Crown Court trial but he hadn’t wanted to tell me as he worried I might have taken advantage.

I felt incredibly sad at that. I would have helped out all I could, other members of the Bar would have done too I hope? A number of times in the Magistrates’ I have co-defended with people doing their first trial, they’ve told me and I’ve helped out, especially baby barristers.

I’ve said to ‘Favourite solicitor’ if she wants to do her first Crown Court trial with me then I am happy to co-defend with her. Am I a traitor? Am I taking work away from the Bar? I don’t think so, as I know she’d only ever take on something she was capable of doing.

Back to the biro

The problem with the free biros is what is represents. Big firms of solicitors doing big quantities of work. That’s what the Government wants and they want them to do it on the cheap.

That inevitably will mean that more and more advocacy is kept in house at solicitors firms and that barristers will be used less. Bigger isn’t always better, often means less individual attention for clients.

The free biro is: remember us, we gave you a pen. Not, remember us because we have a relationship and represent your interests to the best of our ability.

Standards count when you’re playing with somebody’s liberty/livelihood.

My reality

I don’t worry about solicitor advocates. Why? Because I’m going to do my job to the best of my ability, put in the hours and hope to be noticed.

The end of the Bar is not nigh, the end of the Criminal Bar might be. But, if the Bar as a concept was outdated, it would have gone already, like Sergeants-at-Law. Look at the other end of things, the Commercial Bar is booming. If Commercial Solicitors wanted to do that job, they would and they could, they don’t – why?

And this is my objection, not to solicitor advocates, but to the ‘bulk buy legal services provider':

Independence. Solicitor advocates are for the most part employed by their partners. In-house barristers are the same. They are open to pressure from individuals more senior to take on certain cases, or conduct them in a certain way. On the prosecution side of things, the lack of independent advocates creates incredibly odd situations – who has ownership of cases? Quite recently my opponent, at the independent bar took a view about the case, despite her seniority she had to take instructions from an in-house CPS lawyer who knew nothing about the case.

Independence has two further advantages: it means fresh eyes on a case and it means that Court advocates will have a wider range of experience. Why? Because they are not limited to a particular pool of clients, police officers, Judges in a small number of court centres. Independent provides a breadth of experience which helps for continuing learning and development.

Money, money, money: I’m not allowed to give kick backs, or negotiate deals. The Government has set a rate (they get a good deal!) for the services of a qualified Court advocate. That rate takes into account the amount of witnesses, pages of evidence and other matters which will have an impact on how long I have to prepare a house.

If I am giving a bung to a solicitor, or there is a certain arrangement where someone has got an eye on how much they need to make out of a case, then I am not giving my client the best possible service as then I’ll need to take on more work to fill the hole the bung made and so on.

A client, facing imprisonment or the loss of their livelihood, should get the best possible court advocate. That advocate should be picked for their skill and experience and how they will communicate with that client.

Because, that’s how a commercial solicitor chooses a barrister for their commercial client!

Money is no object

I know money is tight for everyone, but the solicitors and barristers engaged in dodgy financial arrangements are just hastening one thing. That’s big, factory firms, defending clients as cheaply as possible.

Criminal Defence PLC, keeping the overheads low. Keeping the standards low.

But you get a free biro.

So it’s not about barrister v solicitor advocate. It’s lawyers who put clients first v lawyers who put their pockets first.

FTD

p.s – the two firms I nick pens from the most are highly rated and very rarely use in house advocates – irony, the bloody irony.

Comments
  1. I did once ask a Solicitor Advocate if he was instructed because his client couldn’t afford a Barrister. I am not proud of that, per se, but the guy was a an arse and was totally useless.

    • Pissed off HCA says:

      And in so doing Matt you proved yourself to also be an arse.

      There came a point for me when dealing with sancitmonious arseholes at the Bar just got too much. Weak advocates who thought they were amazing, pupils who just happened to get pupillage at the same chambers as family members (one set I was interviewed at just happened to select the two neices of a senior member) and even more annoying the ones who literally fucked their way to pupillage and tenancy.

      To be frank, there is as much dross at the Bar as there is in any other profession or walk of life, but there is a culture of turning a blind eye and covering up for them. If you want to tell whether a firm of solicitors is any good or not, don’t ask “Do they use in-house advocates?” Ask to see their non-approved Counsel list! Decent firms will have people (and even whole Chambers) who are considered too useless to inflict on any client. At my firm, we have one entire set of Chambers who have been removed from any possiblity of working for us because you can instruct anybody you like and it’s a gamble whether that person will show up or even if the person who shows up will be from that Chambers!! I was junior Counsel to their head of Chambers before we cut them adrift and even though it was a serious high profile case my learned leader spent the vast majority of the pre-trial time skiing. This person is an excellent advocate, but you cannot rely on their Chambers – barristers forget that we’re not just instructing them, we’re instructing the Chambers machinery.

      Why are HCAs good for clients? Many clients hate the last minute switching that goes on at the Bar all the time – earlier this year I had a fraud come to trial. Serious case, been awaiting trial for a year. But the Friday before trial starts, Counsel returned the brief resulting in a substitute having to take over… client threw his toys out of the pram and I found myself robed in court seeeking an adjournment to get things back on track.

      Point is this: many members of the Bar think that they are awesome. They invariably are the ones who are crap. Barristers also forget that many HCAs are, like myself, dual qualified.

      My personal view is that the time has long since come for the Bar and solicitors profession to be fused. I don’t even mind a return to the term “attorney”.

  2. exdl says:

    Amen.

    I worked for a sausage factory and standards were and are compromised – but they give out nice pens at Christmas!

    Before LSC contracts, every solicitor would ascertain via the Green Form scheme if a client was eligible for funding.

    Too many solicitors took the living piss and we ended up with the basket case that is the LSC.

    All the legal aid lawyers adopt a “how very dare you” stance whenever someone states the bleeding obvious that sausage factorys aren’t generally known for their quality. But it’s true.

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