Practice and Procedure

Flouting referral rules may be made a crime

PUBLISHED December 1, 2006

The Law Society Regulation Board is to consider whether failure to comply with the rules on referral arrangements should be made a criminal offence as part of a ?last-chance? offensive to improve compliance by solicitors.

The board decided this week to give a much beefed-up information and enforcement campaign the chance to work, with reviews in July and December 2007. If this campaign failed, the board would consider reinstating the total ban on referral fees, or at least a ?radical restriction? on them.

Chairman Peter Williamson echoed the words of lay member John Stoker, who said the board had to make it clear to the profession that this was ?not only the last chance saloon, but last orders?.

The prospect of seeking an amendment to the Legal Services Bill that would make non-compliance with the rules by both solicitors and introducers a criminal offence was put forward by solicitor member Edward Solomons.

He said the deterrent of a criminal sanction could shape behaviour and argued it was the only viable way to improve compliance. ?We need to be realistic about the extent to which the best-drafted rule and the best efforts of the compliance [team will] make people comply,? he said.

Some voiced concern about this approach ? lay member Sir Stephen Lander argued it would only deal with conduct after the event ? but the board agreed to look at the idea in more detail. ?It wouldn?t be incompatible with some of the other [enforcement] actions we plan to take,? Mr Williamson said.

There was also doubt over whether better enforcement would work, with Alan Baker, a former partner at Leeds firm Walker Morris, saying it is ?well nigh impossible?.

Though there was recognition of the commercial pressures on solicitors, members also acknowledged the widespread concern about the current situation. However, members such as Jonathan Spencer, a former official at the Department for Constitutional Affairs, said an outright ban ?is most unlikely to be effective? as ways around it would be found.

A Law Society Representation spokeswoman welcomed better enforcement, but said it should go side by side with a debate on a ban. She also cast doubt on the feasibility of a criminal sanction.