Warning notice

Criminal legal aid and clients’ best interests

Issued on 27 July 2015

Status

Whilst this document does not form part of the SRA Handbook, the SRA may have regard to it when exercising its regulatory functions.

Who is this guidance relevant to?

Individual solicitors and firms undertaking criminal defence work.

Our concerns

We are concerned that solicitors and firms may not act in the best interests of each individual client, as required by the SRA Principles, should the protocol issued by the London Criminal Courts Solicitors Association (Protocol Phase 2 The Crown Court) be followed without fully considering the circumstances of each individual client.

It is a matter for each firm and individual solicitor to decide whether or not to represent clients in criminal cases. However, at all times, individuals and firms are bound to comply with regulatory requirements and the protocol issued by the LCCSA does not, in any way, modify these requirements.

Creating a limited pro bono retainer

Where you have a retainer with a client, whether it is pro bono or not, you have a duty to act in the client’s best interests and to ensure the client is in a position to make an informed decision on their matter. Whilst it is open to you to limit a retainer, it is not clear why to do so would be in the best interests of a criminal defendant client. In order to achieve Outcome (1.12), you must inform the client of all his choices. It is likely to be in the client’s best interests to instruct another firm able to act for him fully and to apply for legal aid. You should advise your client accordingly or as to any other options open to him.

Terminating a retainer

The Protocol also seeks to apply a policy described as ‘no returns’. Where a firm is instructed in a criminal case where advocacy in court is required by the client, it is in the best interests of the client for the firm to use its best endeavours to secure advocacy for the client. This may include the use of appropriately qualified advocates employed by the firm as well as external advocates. Given this, it is not apparent that a firm following the approach of “if an instructed solicitor advocate is unable to cover a hearing the case will not revert to another member of the firm” would be compliant with existing regulatory obligations. It is the client’s best interests that are paramount once instructions have been accepted. Such conduct is likely to undermine public confidence in the provision of legal services. It should be remembered that you can only terminate your retainer with good reason and on reasonable notice.

The SRA Principles

Principle 1 - upholding the rule of law and the proper administration of justice.

Principle 2 - act with integrity.

Principle 3 - not allow your independence to be compromised.

Principle 4 - act in the best interests of each client.

Principle 5 - provide a proper standard of service to your clients.

Principle 6 - behave in a way that maintains the trust the public places in you and in the provision of legal services.

Mandatory outcomes

You need to comply with the Solicitors Regulation Authority code of conduct and in particular the following outcomes:

  • Outcome (1.1) you treat your clients fairly;
  • Outcome (1.2) you provide services to your clients in a manner which protects their interests in their matter, subject to the proper administration of justice;
  • Outcome (1.3) when deciding whether to act or terminate your instructions you comply with the law and the code;
  • Outcome (1.5) the service you provide to clients is competent. Delivered in a timely manner and takes account of your clients needs and circumstances;
  • Outcome (1.12) clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them.

Enforcement action

Failure to comply with this warning notice may lead to disciplinary action.

Further help

SRA Chief Executive Paul Philip on 4 August 2015 wrote to LCCSA Chair Jonathan Black setting out the SRA's position. Download the letter (PDF 3 pages, 92k)

If you require further help in understanding your obligations under the Handbook, please contact the Professional Ethics team.

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