Latest advocacy row — bar leaders slam solicitors for poor family court work

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By Jonathan Ames on

Top silks call on Ministry of Justice to launch a review of courtroom standards as public is in “danger”


Another war of words broke out yesterday between the bar and solicitors — this time over advocacy in the family courts.

Resolution — the body that represents family law solicitors — fired off an angry letter to a government minister in response to the bar’s call for a high-profile review of advocacy standards.

Tempers flared after the Family Law Bar Association (FLBA) and the Bar Council wrote two days ago to justice minister Shailesh Vara, alleging that many family law solicitors were not up to the job.

The barristers’ complaint coincided with an interview with former minister and Conservative Party grandee, Sir Ivan Lawrence QC, in which the silk slammed the performance of solicitor-advocates in the Crown Courts.

And now the verdict seems to be similar regarding family law advocacy in the county and high courts. Indeed, according to the bar, it is worse.

In their jointly signed letter to Vara, Bar Council chairman Alistair MacDonald QC and Susan Jacklin QC, chairwoman of the FLBA wrote:

The position in the family court is undoubtedly worse than in the criminal court. Solicitors require no advocacy training in order to appear either in the County Court, where the vast majority of children cases are conducted at circuit judge level or below, or the High Court.

The letter continued:

It is undeniable that the training undertaken by solicitors is limited compared to the extensive training undertaken by the bar.

The two silks went on to maintain that the disparity in solicitor-advocate training had been of little importance until the latest slashing of the legal aid budget. They pointed out that until the recent funding cuts, poor solicitor-advocacy was only an occasional problem, “as solicitors conventionally instructed counsel on all matters of complexity”.

However, said the letter:

Since the 10% cut in representation fees was imposed in 2012, followed by the significant reduction in legally aided work brought about by [the Legal Aid Sentencing and Punishment of Offenders Act 2012], more and more solicitors have found it difficult to make a living from publicly funded work. This has led to … many more solicitors than previously had been the case … conducting hearings themselves, or using members of their firms, so that the family advocacy scheme payment can be claimed.

The upshot, the barristers told the Ministry of Justice man, was that solicitors are producing increasingly poor advocacy in family law hearings. They fired off one more broadside:

Serious damage to the public interest has been caused by this situation.

MacDonald and Jacklin called for a review forthwith. And not surprisingly, the bar letter has gone down like a cup of something cold and nasty with the solicitor side of the profession.

Resolution chairwoman Jo Edwards reached for her quill and scrawled a fuming letter to Vara yesterday.

Our own anecdotal reports from our members,” she said, “ including barristers and leading judges, do not suggest that the concerns expressed by the FLBA and Bar Council are widespread.

Edwards went on to acknowledge that in a post-LASPO world more solicitors are conducting family law advocacy. However, she said:

The judges to whom we have spoken suggest that whilst more interlocutory hearings are being done by solicitors … this is not obviously having a detrimental impact on the preparation or disposal of cases.

The Resolution leader went on to criticise the FBA for conducing a survey of its members earlier in the year and then not releasing the results. Edwards also slammed the bar for framing the survey questions “in such a way as to elicit examples of poor solicitor advocacy, rather than ascertaining whether members perceive there to be a problem with quality”.