Sep 26 2008

How to pretend to be a senior counsel… and get paid for it

The purpose of this note is to describe a scam on the Scottish Legal Aid Board. There is nothing illegal about it; I use the word ‘scam’ in its most polite sense. This is not written as a criticism of those who benefit from it; the criticism is of the scam, or loophole, itself. The Scottish Legal Aid Board knows it it is there, and knows it costs money; but how much it costs the taxpayer is unknown, or at least unpublished. SLAB has, apparently, made clear to its beneficiaries that the current practice is ‘not acceptable‘; but it is still permitted. And proposals made by the Law Society for its reform would, in fact, continue it.

The ordinary rule as to getting payment by the public as ‘senior counsel’

The Criminal Legal Aid (Scotland) (Fees) Regulations 19891 lay down scales of payment for solicitors and for counsel. There are higher rates for ‘senior counsel‘ (that is to say, Queens Counsel) than for ‘junior counsel‘, as one might expect: not just because senior counsel are more experienced2, but also because SLAB will only sanction the use of senior counsel if a case is particularly difficult; in its Handbook, the Board says ‘Requests for senior counsel will be for advice on a very complex issue or a novel point of law’3 and warns that it will consider ‘whether there are exceptional factors in the case which show a need for the experience of senior counsel – these could relate to the consequences of the case for the individual or others likely to be affected by the decision, and the gravity of the case; the value of the claim; whether the law applicable to the case is particularly complex or there are issues to be raised which have not previously been raised before the court4. Solicitors who are successful in so persuading SLAB do not and should not, of course, benefit financially themselves; the benefit is for the client, for whom the public will be paying a higher rate to get a better service because that is needed by the client.

So far so good. But the devil is in the small print.

The loophole

Senior counsel‘ are first defined in Regulation 2 (1) as including senior solicitor-advocates as well as senior advocates; in other words, genuine QCs from both professions. So far as advocates are concerned, the senior counsel rate is only payable to an advocate who actually is a senior counsel: again, as one might expect. But the definition then goes on to provide for a further class of ‘senior counsel‘ who have never been appointed Queens Counsel at all; they may indeed be newly-qualified. Regulation 2 (1A) provides ‘a solicitor-advocate shall be … a senior solicitor-advocate, … where the Board has authorised the employment of senior counsel …5.

What this means is that a solicitor-advocate can first (wearing their solicitor hat) persuade the Board that a case is so complex it needs senior counsel; but then send the instructions to himself or herself, and take the higher fee, without ever instructing senior counsel at all. It doesn’t matter how junior they are; how inexperienced; as the Society of Solicitor Advocates has admitted, ‘there are no accreditation criteria currently applying to solicitor advocates‘. In effect the public is persuaded that a premium service is needed at a premium price; the public pays the premium price, but it doesn’t get the premium service. As the Board’s Legal Services Committee put it back in June 2005, ‘where the Board granted sanction for senior counsel, any solicitor-advocate, no matter how inexperienced, could act in that case and be paid as senior counsel. This was unsatisfactory because the Board had no assurance about the quality of representation but had to pay whichever solicitor elected to act at senior counsel rates‘.

To my mind, this may fairly be called a scam.

The future of the loophole

SLAB has since at least 2005 been unhappy with this, and it is not clear why action has not been taken before; a simple amendment to the regulations would suffice. Earlier this year, it made clear to solicitor-advocates that the situation could not continue. The Law Society has been consulting (rather quietly) on a fall-back position, accepting with some reluctance that the least experienced solicitor-advocates should not continue to be entitled to award themselves Queens Counsel rates of fee. Its current thinking seems to be that solicitor-advocates who are, in the opinion of other solicitor-advocates, of the same standard as an average junior counsel should be entitled to claim to be seniors. But the real solution is to abolish the loophole. The rank of Queens Counsel is equally available to advocates and solicitor-advocates; there should not be, as the Society of Solicitor Advocates has suggested, an ersatz rank for solicitor-advocates that is paid the same without the qualification. This is simply an incentive to solicitor-advocates to keep the best-paid work inappropriately in-house (because it will still be the solicitor who decides whether to keep the fee for senior counsel or to employ genuine senior counsel).

Now the Faculty of Advocates has abolished the ‘mixed doubles’ rule, the consequences will look even stranger. Say SLAB sanction both senior and junior counsel to be used in a case, which assumes its difficulties are out of the ordinary. Now, say I am instructed to appear with a junior solicitor-advocate, chosen by his own firm to give him some training on the job6. I do the work. The solicitor-advocate then announces that he will be claiming the ‘senior counsel’ rate. He has an absolute right to do this; nobody can say no. Then I am paid the junior rate, because that is all that is left in the kitty. I don’t expect sympathy; it will be my own fault for being a mug. But the next time I’m asked to accept instructions on this basis I will refuse; and it will be the client, who only got allowed senior counsel because the case was exceptionally difficult or important, who loses out.

There may well be good reason to distinguish between levels of junior counsel for legal aid purposes, as of course private fee-paying clients do, so that experienced junior counsel are paid more than inexperienced, and to create an intermediate legal aid fee rate for experienced juniors whether advocates or solicitor-advocates. But there can be no good reason to discriminate in favour of solicitor-advocates. The Law Society’s proposals to perpetuate this should be rejected.

  1. Originally S.I. 1989/1491, these have been heavily amended. The up-to-date regulations are here, as are the equivalent civil legal aid regulations. [back]
  2. Senior counsel, or QCs, are awarded that title as ‘a mark of quality and distinction in advocacy… applicants are expected to have the highest professional standing‘ and so on, to quote from the Independent Observer’s Report on their appointment in 2006-7. [back]
  3. Chapter 7.3. [back]
  4. See also the Board’s Guidelines on Sanction for Counsel; 3.2 for civil, 2.3 and 2.4 for criminal. [back]
  5. There is a similar provision in the Civil Fees regulations, but it is exceptional for solicitor-advocates to do civil legal aid work; the rates aren’t high enough to attract them. [back]
  6. The Office of Fair Trading criticised the mixed doubles rule because it stopped this: it said the ‘rule was a restriction on competition which prevented solicitor advocates from benefiting from the experience of senior counsel and gaining experience of higher court work‘ at the client’s expense. [back]

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