The government has been asked to look at changing the Civil Procedure Rules to prevent solicitors from employing unregistered barristers as agents to represent clients in court.
The move to clamp down on allowing those without rights of audience to appear at hearings has also won the support of the Association of Costs Lawyers (ACL).
Recently published papers from the February meeting of the Civil Procedure Rule Committee (CPRC) show that the Personal Injuries Bar Association (PIBA), with the support of the Bar Council, wrote to the CPRC over its concerns that solicitor’s agents – usually unregistered barristers – were increasingly being used to conduct advocacy in open court at stage 3 quantum-only hearings under the various personal injury pre-action protocols.
The letter – co-signed by PIBA chairman Andrew Ritchie QC and Derek Sweeting QC, chair of the Bar Council’s legal services committee – said the exemption in the Legal Services Act 2007 from needing rights of audience was plainly drafted to confine it “to hearings which are held in private”, although the Act uses the now out-dated phrase “in chambers”.
However, there have been difficulties in determining exactly when the exemption applied, they said.
The letter said: “The problem is far from a technical one since section 14 of the LSA provides that it is a criminal offence for a person to carry on a reserved legal activity unless she/he is entitled to do so…
“It strikes us as inherently anomalous that a right of audience can be exercised in these circumstances by a non-qualified advocate and we are aware that the issue is causing difficulties both for practitioners and the lower courts as well as exposing unregistered barristers to a potential criminal liability.”
The minutes of the meeting said: “The committee considered the correspondence from PIBA, but felt that it was not their function to interpret the 2007 Act to resolve legal ambiguity. District Judge Lethem noted that in practical terms, where an agent attends a hearing and no notice of acting is required it is very difficult to establish their rights of audience.
“The committee were not unsympathetic to the problem and asked the MoJ [Ministry of Justice] representative to draw the matter to the attention of the appropriate policy area with the MoJ.”
The ACL said it was concerned that courts were continuing to hear unregulated and unqualified persons and failing to recognise the importance of a regulated profession, with a particular emphasis on unregulated costs draftsmen.
Chairman Iain Stark said: “Before costs lawyers, the courts utilised the legal myth of a so-called solicitor’s agent, notwithstanding that arguably these individuals had no rights of audience. But the law and the profession have been modernised in recent years, and it is clear that there is a push towards the need to be a practising lawyer with independent rights of audience to appear in open court.
“Having worked so hard to get where we are, some members will find it disappointing that the courts have not recognised this change and urge the Ministry of Justice to take action to ensure the integrity of the advocacy regime.”