Solicitors have criticised a 'completely unreasonable' letter from the Legal Aid Agency threatening contract sanctions if they fail to make sufficient efforts to secure advocates in very high cost criminal cases.
The letter from the LAA's head of contract management John Sirodcar says the LAA has 'significant concerns in relation to the ongoing failure to instruct an appropriate advocate'.
The problem has arisen due to the bar's refusal to accept VHCC's after the government cut fees by what barristers claim was 44%.
In his letter, Sirodcar warns that the LAA regards failure to take 'all reasonable steps' to ensure that a client is represented as an 'extremely serious matter' that could result in the suspension or termination of a VHCC contract and exclusion from future contracts.
Reasonable steps, said Sirodcar, would be 'demonstrably exploring all possible, reasonable avenues of instructing an advocate, including approaching the [Public Defender Service] and solicitor-advocates'.
Solicitors with VHCCs are asked to provide the LAA within five days evidence setting out the reasons why an advocate has not been secured and the steps taken to secure one, including a 'detailed chronology of events', the names of advocates contacted, the dates they were contacted and their response.
Chairman of the Criminal Law Solicitors' Association Bill Waddington (pictured) said the letter is 'completely unreasonable'.
The LAA should accept a solicitors' written note of the chambers they have contacted and their response, he said. To have to provide documentary evidence in the form suggested is a 'nonsense'.
Waddington said: 'The solicitor has a duty to their client to ensure they have representation of sufficient quality and skill to be able to do the case.'
But he said there is not a sufficient number of advocates in the PDS and solicitors would be in breach of their duty to their client if they instructed 'any Tom, Dick or Harry who happens to own a wig and gown'.
Lee Adams, a partner at London firm Hughmans, represented one of the defendants in the case kicked out by His Honour Judge Leonard for want of advocates at Southwark Crown Court last week.
In that case the solicitors had contacted more than 70 sets, the PDS, and barristers in Northern Ireland and Scotland.
Adams stressed that solicitors have a duty to secure the right advocate for the case, not just anyone who happens to be available.
In his ruling, Leonard dismissed the PDS's ability to assist, saying that while it has provided a 'pool of available advocates' it is 'so small so that it is insufficient to cover all the VHCC cases due to be tried'.
While he said that a legally aided defendant does not have the right to the advocate of their choice, a solicitor is permitted to carry out their duty to assess which available advocate would best suit the case.
Leonard added: 'A solicitor is entitled to delay that choice until the moment that he judges the pool from which to choose is at its height.'
The Law Society has produced guidance for firms acting in VHCCs where counsel have withdraw or refused to accept the case, reminding them of their contractual duties to their clients, the courts and the LAA.