The idea of undertaking “days of action” received overwhelming support.
This is an escalation of the ongoing no return action by the ABC, in protest at the actions of the Ministry of Justice (MoJ) following the release of the report of Sir Christopher Bellamy. criminal legal aid report.
Cases Affected by Law Society Action
If you are a criminal defense representative and need to contact the court about any matter involved in the ABC action, include the words “BAR ACTION” in the subject line of your email, so that the judge concerned can be informed as soon as possible. .
Consent to the absence of a lawyer
Stakeholders participating in a day of action may ask you or your client to consent to their absence.
We understand the motivation behind the lawyers taking this step and recognize that many members will support it.
However, it will almost always be against your client’s best interests for you or him to consent to his lawyer’s absence.
We have received legal advice that, except in the rarest of circumstances, it would almost certainly be contrary to a lawyer’s professional and contractual obligations to consent to the absence of a lawyer in the manner suggested, or to invite his client to do so.
The Bar Standards Board (BSB) has issued guidance stating that if a solicitor fails to appear for a hearing at which they are required to represent a client, in order to take part in an action, this may very well be treated as professional misconduct.
We would like to remind members that we have issued guidance on the circumstances in which lawyers may refuse to undertake unpaid work without breaching their professional and contractual obligations.
Read our practical note on rejecting unpaid work
Advocacy during a “no return” action
Starting April 11, when a lawyer assigned to a case becomes unavailable, for example due to another case overflowing, lawyers following this policy will refuse to take on the case.
The Criminal Bar Association’s disagreement with the government is different from the Law Society’s objections to the proposals; but we and they are of the opinion that the proposals of the Ministry of Justice are insufficient to solve the crisis of the criminal defense profession which Sir Christopher has so clearly described.
Criminal law is no longer an attractive career option for young lawyers or lawyers.
The data we analyzed in 2018 painted a very bleak picture of a future England and Wales littered with ‘counsel wastelands’, where the remaining criminal lawyers will have retired without any young lawyers coming to take their place.
Updated data we released earlier this year confirms, unsurprisingly, that the situation is even worse now than it was then.
We recognize that collective action by the profession as a whole, or by local associations or groups of lawyers, may fall within the prohibition of anti-competitive agreements and decisions of professional associations under UK competition law and we we are not calling for such action to be taken.
But in the current circumstances, it will come as no surprise if many lawyers independently decide that for professional or business reasons they are unable to accept work when they cannot be sure or find a lawyer for the business, nor to be economically viable. to undertake internal advocacy.
Advice to notaries
Our advice remains broadly the same as in 2018.
Lawyers have duties under the Solicitors Regulation Authority (SRA) Code of conduct to their clients and the court, and must act in the best interest of their client by liaising with the court and the legal aid agency to manage the impact of the inability to find a lawyer.
Lawyers should consider the following SRA Principlesall of which are relevant to a situation in which the lawyer is asked to accept instructions on a matter that he does not feel competent to deal with:
1. in a manner that respects the constitutional principle of the rule of law and the proper administration of justice
2. in a manner that preserves public confidence in the legal profession and in the legal services provided by authorized persons
3. with independence
5. with integrity
7. in the best interest of every customer”
The Code of Conduct also provides in point 3.2 that lawyers must ensure that the service provided to clients is competent and provided in a timely manner.
This clearly implies that lawyers should not undertake work that is outside their competence.
So while a barrister-attorney is free to take on such work if he chooses, he is not required to do so and certainly should not do so if he feels the matter is beyond his competence. .
We know that the judiciary will be keen to ensure the proper administration of justice and, particularly with the scale of the current backlogs in the system, will be reluctant to have cases adjourned.
However, we would like to emphasize that we do not consider that the unavailability of a lawyer – for any reason whatsoever – creates an obligation for a solicitor-attorney of the contracting firm to take over any of the responsibilities of the former mandated lawyer, if he does not feel competent to do so.
There is also no obligation in any new case to take over the plea if an outside lawyer cannot be found.
Lawyers must decide whether they are competent to take on the job (or any aspect of it) and act accordingly.
If it means finding someone else to do it, they will need to be satisfied that this person is competent and that it complies with their client’s instructions.
Judges may seek to mitigate problems by granting lawyers rights to resolve them that the lawyer generally does not have, either on a general basis for certain types of hearings or in an individual case.
In a situation where the court grants such permission to attorneys to address the court due to the attorney’s unavailability, each attorney must determine whether he or she is capable of providing the defense in the circumstances in question and it is appropriate to make yourself available.
In complex cases or those where the consequences of a bad plea for the client could be an issue, the lawyer should weigh the issue very carefully.
In some cases, it may be more appropriate to try to find a suitable attorney.
Lawyers will need to determine if they have the capacity to undertake advocacy in-house.
In doing so, they will need to determine whether they or other lawyers in the firm have the experience and skills necessary to act as counsel in the interest of the client in question.
They will also need to consider their other contractual obligations and ensure that these are not affected by taking on this additional work, including the need to meet the requirements for duty counsel to work 14 hours of contractual work per week.
We encourage all firms to consider their own circumstances when deciding whether or not to assume legal representation in a matter where the lawyer has declined or ceased to act.
Additionally, if a lawyer is aware that it may be impossible to find a competent lawyer in a case, he should consider whether it is entirely appropriate to take on the case.
If in doubt about what to do in a particular case, you are encouraged to seek advice specific to your circumstances, whether from the Practice Advice Service, the SRA’s professional ethics team or your own legal advisers.