Thursday 15 November 2012 by Catherine Baksi
A former Court of Appeal judge earlier this week called for lawyers who pay or receive 'corrupt' referral fees to be reported to the police. Lord Justice Hooper told the bar conference that the growth of referral fees, which 'corruptly' influence the choice of trial advocate, is the most pernicious consequence of the government's 'savage' legal aid cuts.
The Legal Services Board decided not to ban referral fees, but under the bar's code of conduct the payment of a referral fee by a barrister is not permitted.
Hooper said that such fees are paid or incurred by barristers in four situations, including where fees are paid by the trial advocate to a solicitor with conduct of the case and where a service is provided by a group of advocates to a solicitor, for example, where Crown court work is given to a set in return for magistrates' court work being done for nothing.
They are also involved where the advocate who attends the preliminary case management hearing pays another advocate to do the case, or where a litigator whose client has the benefit of legal aid for two advocates requires the trial advocate to use an in-house advocate from the litigator's firm in exchange for receiving the instructions to conduct the trial.
'Such fees are unlawful and unprofessional. But professionalism is at risk in the face of the cuts which both branches of the professions have suffered,' he said.
Hooper said that the payment of referral fees may lead to cases being undertaken by advocates who lack the competency to do so.
Judges, he said, need to adopt a more 'robust' approach to ensure all advocates are sufficiently competent, which may include adjourning or halting a trial. 'If corrupt referral fees are suspected, it is time to involve the police,' he suggested.
Chair of the Criminal Bar Association, Michael Turner QC, called referral fess 'bribery for briefs' and said they are now 'commonplace'.
Disagreeing with the LSB's views that they are fair competition, Turner said: 'Public money being used by barristers to pay solicitors to instruct them, solicitors paying clients to instruct them. It is not fair competition, it is a crime under the government's own legislation; the Bribery Act.'
On the impact of the fees, Christopher Convey, from the bar's professional practice committee, said: 'Referral fees are killing the publicly funded bar from the bottom up.'
The vice-chair elect of the Bar Standards Board Patricia Robertson QC asked for evidence from the profession of referral fees and their detrimental effect. He said it would be put to the LSB to support a call to have referral fees banned.