Question of ethics

April 2018

Solicitors' duties in Advocates Graduated Fee Scheme matters

Q. I am acting for a client in a complicated crown court matter, and the chambers I generally instruct on such matters is refusing to take on new work in protest at the Advocates Graduated Fee Scheme (AGFS). I have contacted some other local chambers, but I am struggling to find a replacement. This could leave my client with no trial advocate.

I have seen from the press that this is becoming a major problem in these types of cases, with some trials having been adjourned. What is your advice?

You have a duty to act in your client’s best interests (Principle 4), and under Principle 1, to uphold the rule of law and the proper administration of justice. You also have a duty, detailed in Chapter 7 of the SRA Code of Conduct 2011, to assess any potential risks to compliance and to have in place systems to address issues identified.

To ensure compliance you are advised to make proper efforts to find a replacement advocate, whether it be a different barrister, or a solicitor advocate. You should document all such efforts made.

  • If your first-choice counsel is declining work, you should contact as many alternative chambers as possible to establish whether they are taking part in the current action.
  • You should explain your difficulties to the court and the prosecution at the earliest opportunity, to assist with proactive case management.
  • If you employ solicitor advocates, they should be utilised where they have both the skills and resources to take the work on (see Outcome 1.4).
  • If you have been unable to locate an advocate and the court is unwilling to adjourn, you may need to assist the client to represent themselves as best they can. As you are on the record you should attend court with the client, explain the situation to the court and offer any support you can to the client during the hearing.

Although you have a duty to act in your client’s interests you also have a duty to uphold the rule of law and the proper administration of justice and that would include making every effort to ensure court hearings take place when tabled, unless adjourned with the agreement of the court. It may be helpful to explain this to your client.

Where you haven’t yet taken on a case, we would advise you to:

  • Consider your position and the contingencies you have in place
  • Clarify with your client what your retainer covers whether advice, representation, advocacy
  • Discuss the possibility of unavailability of counsel and viable alternatives

It would not be acting in the clients interests to take a matter on knowing you are likely to be unable to complete it on their behalf. Should you be considering limiting your retainer then please read our previous warning notice issued in 2015.

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