Salaried Defence Service and its draft Code of Conduct
Code of Conduct
Choice of representative
The Legal Services Consultative Panel (LSCP) was established by the Access to Justice Act 1999 in January 2000.
The Panel has considered the two consultation papers on the Criminal Defence Service, published by the Lord Chancellor's Department in June 2000: (1) Criminal Defence Service: establishing a salaried defence service and draft Code of Conduct for salaried defenders employed by the Legal Services Commission and (2) Criminal Defence Service: choice of representative.
This response was made by the LSCP in October 2000. It is published on behalf of the Panel by the Lord Chancellor's Department. The complete document appears on the Lord Chancellor's Department's website www.lcd.gov.uk as well as being available in hard copy.
Previously published is the Panel's advice to the Lord Chancellor on aspects of proposals by the Bar Council to alter its Code of Conduct following changes introduced in the Access to Justice Act 1999 and parallel proposals from the Law Society for alterations to its Rules and Principles of Professional Practice (including its Advocacy and Employed Solicitors Codes) and its Higher Courts Qualification Regulations.
Paper copies of the Panel's response and advice are available from the Panel Secretariat (telephone: Mrs Samuel, on 020 -7210 1454 e-mail: Susan Samuel)
The panel comprises:
The Legal Services Consultative Panel has considered the two consultation papers on the Criminal Defence Service, published by the Lord Chancellor's Department in June 2000: (1) Criminal Defence Service: establishing a salaried defence service and draft Code of Conduct for salaried defenders employed by the Legal Services Commission and (2) Criminal Defence Service: choice of representative. As these documents raise different issues for the Panel, they are dealt with separately
This advice does not address the question of whether or not there should be a salaried defence service, or how it should be set up. However, it is drafted in the light of the specific model proposed in the consultation paper: where the Salaried Defence Service will be directly run and managed by the Legal Service Commission, rather than being a separate, arms-length body. This model gives us some concern, and our recommendations therefore seek to buttress the independence and professional standards of those working within the Service. We deal principally with the draft Code of Conduct at Part Two of the paper.
General principles and structure
Before dealing in detail with quality and conduct standards in the draft Code, we have some general observations to make on the particular issues that arise for a salaried defence service. They can be summarised under two heads: the need to assure quality and independence. The two are interrelated, and require attention to workload and salary levels and structures, as well as the maintenance of high professional standards. The Crown Prosecution Service provides an example of the systemic problems that can occur if this is not built into the service from the beginning. The Salaried Defence Service (SDS), even at its pilot stage, will need to have built-in mechanisms to ensure that it can attract and keep high quality staff, prevent them being overloaded with cases, ensure that they are properly trained and supported, and instil a culture that is robust enough to prevent it simply becoming part of the funding or case management strategy of the Legal Services Commission or Court Service.
The issue of independence is a more critical and difficult one than for the CPS. The CPS is accountable to the state through the Attorney General for the proper prosecution of offences, and will now have an independent Inspectorate. SDS lawyers, however, have a responsibility to each individual client whom they defend, within the limits of their duty to the court. They need to have, and to be perceived to have, a greater distance from the state which is prosecuting those clients. On the other hand, they will also come under pressure from their funder, the Legal Services Commission (LSC). Funding pressures on defence lawyers are not new; and the new contractual arrangements will face lawyers in private practice with some difficult choices and potential conflicts. However, the direct employment and management of salaried lawyers by their sole funder, the LSC, carries with it a greater possibility of conflicts of interest and the funding priorities of the Commission being translated directly into the working practices of the SDS. It is important to note that this could have consequences beyond the SDS itself: it is clear from the consultation paper that the SDS is to be a benchmark for the whole of the Criminal Defence Service.
This becomes particularly relevant in the light of the proposed set-up structure for the SDS pilot schemes, which are to be directly managed by the LSC on both professional and managerial matters. There will be six pilot schemes, each with its own head of office. Each head reports separately on professional matters to a member of the LSC, who is to be the 'professional head of service' (para.49), and on management matters to the LSC's Head of Criminal Defence Services (para. 52). Strategic direction and leadership lies with a Salaried Service Management Committee, chaired by the LSC member responsible, with the office heads and 4 other senior LSC staff, including the Chief Executive and the Head of Criminal Defence services (para. 51). This structure has two characteristics. First, it gives the LSC control of both professional and managerial standards. This is in contrast to the Scottish pilot scheme, set up in 1998, where the Head of the Public Defence Solicitors' Office reports to the Scottish Legal Aid Board on administrative issues only. It is likely to make it more difficult for the SDS to develop a culture of its own, rather than absorbing that of the LSC. Secondly, the dual reporting structure and the absence of central support services, provides potential for confusion, differing quality standards and a lack of clarity about lines of responsibility.
While we have no doubt about the LSC's commitment to quality standards (and its predecessor, the Legal Aid Board's, important role in seeking to assure those standards), its statutory obligation is to 'aim to obtain the best possible value for money'. This is a subjective judgment, and one that may need to be tested in negotiation with those actually supplying the service. Though the commitment to independent research evaluation is welcome, it will be some time before the SDS generates sufficient information to make objective evaluation possible. We note, for example, that the Scottish pilot (now in operation for two years) has still not generated enough material for accurate assessment, even though, unlike the English pilots, clients could be directed there during its first eighteen months of operation. This makes it all the more important that rigorous quality and conduct standards are in place, and effectively implemented, from the outset.
In connection with the maintenance of quality and conduct standards, it is also important to note that the composition of a SDS office will include 'qualified lawyers, paralegals and non fee-earning staff' (para. 37) and that 'Each office will look to develop its own ratio between lawyers and non-lawyers'. Those professional employees regulated by the Code ('salaried defenders') will therefore include barristers and solicitors (regulated by their own professional codes), and paralegals (who may or may not be regulated by the Institute of Legal Executives' (ILEX) code). This raises two issues. First, the Code should as far as possible and applicable, impose the same conduct obligations on all SDS defenders, regardless of their professional backgrounds. Second, it should not impose less rigorous conduct standards than those contained in any of the existing professional codes that apply to any of these three categories of defender. We note, in this context, that the present quality standards defined by the Legal Service Commission are directed primarily to advice and assistance, rather than representation. This code provides the opportunity to set and maintain the highest applicable standard in all areas of the SDS's work.
In relation to the parallel services provided by the private practising profession, SDS defenders will be working alongside solicitors whose quality and training standards are regulated by CDS criminal contracts, and solicitors and other police station representatives and court duty solicitors whose quality and training is regulated by the duty solicitors accreditation scheme. Police station representation is seen as an important means of establishing a client base, in the absence of a power to direct clients to the SDS (para. 39). Similarly, then, the SDS should be subject to the same quality and training standards as their privately employed equivalents. We assume that this will be dealt with by way of service level agreements between the LSC and the SDS; but there are issues that arise in the Code itself and to which we draw attention.
Because of the structure of the pilot SDS schemes, and because they will be employing a range of professional advocates and representatives, we believe that it is important that the Code of Conduct for the Service itself should provide clear and independent quality and conduct standards, rather than relying upon the separate codes governing the different employed professionals, or leaving important matters of principle to be dealt with solely by way of internal management or service level agreements with the purchaser/manager. This will provide a clear basis on which to assure those standards, and will contribute to the development of an independent culture within the SDS. Moreover, it will prevent any conflicts arising for professional staff between their contractual responsibilities and duties under this Code, and those by which they are bound under their separate professional codes.
In that context, we would point out that many of the provisions of the draft Code (such as those relating to conflicts of interest) should apply to employees who may not be barristers or solicitors or authorised advocates or litigators: for example, accredited police station representatives. The definition of 'professional employee' at the beginning of the draft Code is therefore framed too narrowly. We suggest that the words 'or other persons employed by the Commission in a paralegal capacity to provide advice, assistance or representation to clients' should be added. This is particularly important as paralegals are now able to prosecute in magistrates court; though they cannot at present defend, we would wish a code of conduct to provide clear and high conduct standards in case this should ever be permitted.
The first two issues we raise are of particular importance. One goes to the independence of SDS lawyers, and the other to the maintenance of quality standards.
Independence and client relationship
We note first that there is no reference in the draft Code, as there is in the Bar and Law Society Codes, to an express duty to act in the client's best interests, or to the professional distance that should exist, subject only to statutory requirements, between the defender and the LSC. Para. 2 requires a professional employee to 'do his or her utmost consistent to the lawyer's duty to the court, and in compliance with other professional duties, to promote and work for the best interests of the client and to ensure that the client receives a fair hearing' (our italics). At para 3.2, the definition of 'independence' states that it should not be 'compromised by clients, prosecuting authorities, the courts or any other source'.
The language of para. 2 is significantly weaker than the requirements in the present professional codes for lawyers. The Solicitor's Code (1.01) begins by setting out six basic principles, which should not be compromised or impaired in the course of a solicitor's practice: the first is 'the solicitor's independence and integrity' and the third is 'the solicitor's duty to act in the best interests of the client'.
For those solicitors undertaking advocacy, and for barristers, the duty to clients is expressed even more strongly. While both the Bar and Law Society Codes require an advocate not to compromise professional standards due to pressure from clients (or courts), they also make clear that the advocate's primary duty is to the client, whose interests may conflict with those of the LSC.
| 2.3 | Advocates |
| (b) subject only to compliance with the specific provisions of Legal Aid Regulations owe their primary duty……. | |
| to the lay client and must not permit the legal aid authorities or professional
clients to limit their discretion as to how the interests of the lay client
can best be served.' Law Society 's Code for Advocacy, 1999 |
|
| 303 | A barrister |
| (b) 'owes his primary duty…to the lay client…. (c) when supplying legal services funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service owes his primary duty to the lay client subject only to compliance with para. 304. |
|
| 304 | A barrister who supplies services to the Legal services Commission
as part of the Community Legal Service or the Criminal Defence Service
must in connection with the supply of such services comply with any duty
imposed on him by or under the Access to Justice Act 1999 or any regulations
or code in effect under that Act and in particular with the duties set
out in Annex E. Bar Council Code of Conduct, 1999 |
Similarly, in section 6 (duty to the court), the draft Code sets out the overriding obligation, as in both the Bar and Law Society Codes, not to deceive or mislead the court (para.6.1). However, it also includes a positive obligation to ensure 'that in the public interest the proper and efficient administration of justice is achieved' (para.6.2). This is a significantly different emphasis from the present Bar Code, which provides for:
| 302 | an overriding duty to the Court to act with independence in the interests
of justice; he must assist the court in the administration of justice
and must not deceive or knowingly or recklessly mislead the court |
| though it is closer to the Law Society Code's provision that: |
Advocates have an overriding duty to the court to ensure in the public interest that the proper and efficient administration of justice is achieved: they must assist the court in the administration of justice and must not deceive or knowingly or recklessly mislead the court . |
Even if the wording of the Law Society Code is to be preferred, we would advise that this is put into the context of a duty to the court, rather than resting on public interest considerations alone, which could be taken to be those as defined by the LSC. More importantly, the absence of an express duty or primary obligation towards the client is a serious shortfall, in contrast to the clear obligation to the court and the efficient administration of justice.
Solicitors and barristers employed by the SDS are obliged in the draft Code (para. 14.2) to comply with rules of conduct and guidance issued by their professional bodies. However, we do not consider that this is sufficient. First, the SDS will also employ paralegals, who may not be governed by any other code. Second, it will not assist effective management or the development of a corporate ethos if different lawyers are subject to different requirements. Third, it is unsatisfactory and could lead to conflicts, if the emphasis or requirements of a lawyer's professional code are different from those of the SDS. Fourth, as we point out above, it is necessary for the SDS to develop, and to reinforce, its own independent culture and conduct standards.
We consider that the wording in para 2. should be strengthened and expressed as a duty to act in the best interest of the client, subject only to the obligation to the court to ensure that the public interest in the proper and efficient administration of justice is achieved, and to any duty under the Access to Justice Act 1999, or in regulations or codes under that Act.
The connection between volume and quality of work is a critical one. The downward pressure on standards, due to case overload, is a noticeable feature of some other salaried defence services.
It should be noticed that the obligation on the SDS to represent clients (para 4.2) is a stronger one than that imposed on defence solicitors in private practice under the terms of their contracts with the LSC. This draft Code imposes a general obligation to act for someone who is not already represented, so long as the salaried defender is competent and there is no conflict of interest. By contrast, the separate Consultation Paper on Choice of representative states that 'There will be no duty on a contracted firm to accept every defendant who wants to use their services' (para 22) and the draft Criminal Defence Service contract contains no such obligation.
This could have two effects. First, it could lead to case overload, unless there are explicit provisions for refusing or limiting work, on grounds of caseload. Second, it could lead to private practice firms exercising their choice in favour of less complex, or alternatively more interesting, cases and offloading less desirable cases on to the SDS, when fully established. This is a matter which will need to be monitored during the pilots.
The draft Code makes provision (para. 13) for a professional employee who 'considers that due to excessive caseload the acceptance of any further instructions from new clients might reasonably lead to inadequate representation of existing clients', to bring this to the attention of the line manager, who must report this concern to the Head of Service.
We believe that this is much too weak a provision on a matter which is central to the maintenance of assured quality standards within the SDS. There is no obligation within the draft Code on the line manager or professional Head of Service to take any action, or to limit the acceptance of new instructions. Nor is there any requirement within the draft Code that acceptance of instructions should be dependent upon the defender's ability, within an existing caseload, to provide proper representation.
We contrast this, for example, with the professional codes of the Law Society and Bar, and with the CCBE Code of Conduct for lawyers in the European Community. The Law Society's Guide of Professional Conduct forbids solicitors from acting, or continuing to act, where, inter alia, 'a solicitor has insufficient time….to deal with the instructions' (12.03 (1)). The CCBE Code puts this even more specifically
| 3.1.3 | A lawyer shall not accept instructions unless he can discharge those
instructions promptly having regard to the pressure of other work.' |
| In addition, for those providing advocacy, both the Bar and
the Law Society forbid advocates from taking on cases where they would
be professionally embarrassed, and define professional embarrassment inter
alia as |
|
| if having regard to their other professional commitments they will be
unable to do or will not have adequate time and opportunity to prepare
that which they are required to do Law Society Advocacy Code, 4.1(b); Bar Council Code 603(b). |
|
We consider that those acting as solicitors or advocates within the SDS need a similar protection within their code of conduct, and that this should be mirrored in an obligation for management to take appropriate action if there is case overload. At present, the draft Code does not provide this sufficiently strongly or explicitly. It is referred to only obliquely in section 4 (duty to act impartially) by way of defining competence to act as including 'such legal knowledge, skill, experience and preparation as is reasonably necessary to represent the interests of the client'. This needs to be defined more specifically and stated more strongly, as a requirement on the individual lawyer and the service as a whole. This would provide a point of reference, and an obligation to act, in respect of complaints under para.13.
We consider that this is one of the most important factors in ensuring and protecting standards of quality within the new SDS. It is accepted that case overload, and inadequate funding to meet this, have been critical to the CPS's ability to offer an effective and high quality service. Particularly in the light of the fact that the SDS is to be run directly by the funder, the LSC, which inevitably has its own pressures and priorities, it is essential to ensure that the SDS Code explicitly recognises the problem of case overload, and provides some protection from it.
We recommend that the wording of the CCBE Code, at para. 3.1.3, which covers both solicitors and advocates, should be written into para 4.2, so that this becomes an integral part of the management and monitoring structures from the beginning. We also recommend that at para 13.1 there should be an obligation for the Head of Service to investigate the matter in conjunction with the head of the local office, and to report it to the Commission, who should be required to include the number of such reports, and any action taken, in its annual report to Parliament.
We are also concerned about the breadth of the provision at para.14.1 that an employee 'shall not do anything to bring the Commission or the Criminal Defence Service into disrepute or to diminish public confidence in the criminal justice system'. This clearly derives from provisions in the Bar and Law Society Codes which forbid solicitors and barristers from behaviour likely to compromise 'the good repute of the solicitor or of the solicitors' profession' (Solicitors' Practice Rule 1); or 'likely to diminish confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute' (Bar Code 301(a)(iii)).
The provisions in the draft Code are more stringent than the professional codes, and in our view also conflict with the terms of the Public Interest Disclosure Act 1998, which sets out the circumstances in which employees may 'whistle-blow' and which makes specific reference to the circumstances in which it may be appropriate to do so to avoid a miscarriage of justice.
The provisions in the draft Code relate not only to the professional obligations of an employee but also to any action which could be disreputable for the LSC as a whole. It is an obligation to defend the reputation of the employer and funder, as well as the professional standards of the service. This would, for example, prevent an employee from disclosing information, in the public interest, which could reveal mismanagement or malpractice not only within the SDS, but within any part of the LSC. It could also have a highly inhibiting effect on open discussion, by senior management of the SDS, of problems that arise for the Service, or in its relationship with the LSC. Given the initial difficulties which may arise, we believe that this would be unfortunate, and could lead to the kind of defensive mentality which inhibited proper recognition of the CPS's problems over many years. Furthermore, it once again suggests that the SDS's interests are indistinguishable from the Commission's. For the same reason, we would prefer the SDS to have its own complaints procedure within this code, rather than, as at para. 12.1, relying upon the Commission's complaints procedure.
We suggest that para 14.1 should be redrafted to refer specifically to the obligation not to bring the professional standards of the SDS into disrepute and that it should cross-refer to the duty to the client at para. 2. As a minimum, it should make express reference, or make similar provisions, to the Public Interest Disclosure Act 1998.
We would also advise the inclusion of a specific reference to the circumstances in which employees may comment to the media. At present, there are different requirements on barristers and solicitors (though an ACLEC report recommended that the same approach should be adopted by both branches of the legal profession). The draft Code is silent on the matter; in our view it ought to make the position of salaried defenders explicit.
The SDS and its employees will be a public authority for the purposes of the Human Rights Act 1998. As such, they will be bound by Article 14 (non-discrimination) insofar as their decisions affect a person's fair trial rights under Article 6 (which includes a requirement for free legal representation in criminal matters where the interests of justice so require). It would therefore seem sensible to ensure that para 4.1. is, like Article 14, a non-exhaustive list of grounds which could constitute discrimination. This could be achieved by the addition of the words 'or any other status'.
Conflicts of interest; duty to withdraw
At para 7.2, it is presumably only the case that the professional employee must cease to act for one of the clients involved, should a significant risk of conflict arise.
We also consider that the definition of a conflict of interest, at para 7.1, is too narrow. It is defined only in terms of a situation where more than one client is being represented in the same proceedings. Conflicts may also arise between clients in separate proceedings, between clients and others who are being acted for (e.g. victims) and indeed between the client and the lawyer him- or herself.
Para. 8, as presently drafted, would prevent an employee from offering a client a cigarette in the course of his detention in a police station. The Solicitors' Conduct Guide specifically exempts gifts 'by way of refreshments or cigarettes for the client's immediate consumption in the solicitor's presence' (11.01(3)). This could presumably also be set out in the Code or the Regulations.
The draft Code is silent on the question of what an advocate should do if a client asserts innocence, but nevertheless wishes to plead guilty. This is an issue on which the Bar and Law Society Codes differ. Both allow advocates to continue to act in such circumstances. However, the Bar Code requires the advocate to put various considerations before such a client, including the limits of a mitigation plea in such circumstances, the difficulty of overturning such convictions on appeal, and the consequences of acquiring a criminal record (12.5.2). Following this 'counsel may continue to represent him if he is satisfied that it is proper to do so'.
The allegation that salaried defenders in some other jurisdictions are too ready to accept guilty pleas, in the interests of the speedy disposal of cases, is one which has often been made. Because of that, we believe that the stronger of the professional requirements, that in the Bar Code, should apply to all SDS advocates and should be stated in the Code.
We have considered two aspects of the consultation paper: the ability to change representative at the initial stages of a case, and the proposals that later changes in representative should be matters for the Commission, and not the Court, to decide.
Both of these matters relate to choice of representative, which, as the consultation paper notes, is protected by Article 6(3) of the European Convention on Human Rights, now incorporated into UK law under the Human Rights Act 1998. As the consultation paper points out, the caselaw under the ECHR does not support an unrestricted choice of legal representative, particularly by those who are legally aided. However, in relation to those decisions, we would point to two important factors. First, it is clear that the representative must be competent and must not have a conflict of interest with the defendant. Secondly, the leading cases before the European Court and Commission of Human Rights relate to circumstances in which it is a court which assigns a legal representative.
We support the principle of a 'cooling off' period during which a defendant can change his or her mind after applying for legal representation. The practical issues raised in Questions 1 to 4 are outside the scope of this advice. We would simply make the general point that the regulations must allow for refusal, on reasonable grounds, of the further services of a duty solicitor representative, or for changes, on reasonable grounds, outside the initial time limit.
We are however much concerned about the proposal that later changes of representation should be matters for the Commission and not the court. We consider that there are objections both of principle and practice to this proposal. In practical terms, it is likely in fact to delay matters if a request to change representation at the door of the court has to await a decision by the Commission, rather than being able to be determined and granted by the court. This was the case, for example, when the Commission for Racial Equality had to consider requests for legal aid in discrimination cases before the Employment Appeal Tribunal. The Legal Services Commission, in fulfilling its duties under the Human Rights Act, would have to consider such requests fully and provide reasons for refusing a change of representation. This would be likely to add to delays by increasing the number of adjournments. By contrast, if the court continues to make these decisions, the parties are all present, evidence can be heard and the judge can make directions for future conduct.
We also believe that the transfer of this decision-making power to the Commission is likely to be challenged under the Human Rights Act. It is true, as the consultation paper points out, that Article 6(3) of the ECHR (choice of representative) does not give legally aided defendants an unfettered right to choose their representative. However, as far as we are aware, all the cases decided by the ECtHR on this point have been ones where it was the court that appointed the disputed representative. These decisions have relied upon the fact that the court has an overriding obligation to ensure the interests of justice are served. We consider that there is a much greater risk of breaching Article 6(3) if a non-judicial body were to be able to refuse a change of representative. Moreover, it appears also to be in breach of Article 6(1), which requires that civil rights and obligations should be determined by an independent and impartial tribunal. The assignment of a lawyer is a civil right, and the Commission would not be seen as independent and impartial for this purpose. It is therefore likely that its decisions would be judicially reviewed, thus adding to delay and cost. (The same considerations could apply to a defendant, after charge, who was required for any period to accept the services of a duty solicitor whom he did not wish to instruct, as appears to be suggested in question 2.)
We have no objection to the proposal that applications to change legal representation should need to be justified. However, we consider that the circumstances set out in para. 34 are too narrowly drawn. Conflicts of interest may arise in other circumstances than the one covered in the first bullet point (representation of more than one defendant in the same case). While it should be for the client to show a breakdown of the lawyer-client relationship, this should not always require certification by the lawyer, who may not recognise, or may not be prepared to admit, that such a breakdown has occurred. The example given in the second bullet point, of cultural misunderstanding, is precisely the kind of circumstance in which this could occur.
As question 7 sets out, it is clearly necessary to balance the defendant's right to legal representation in which he or she has confidence with the interests of justice and of victims and witnesses. These are matters which a court can assess in the individual case, and in the light of its duties under the Human Rights Act. The need for this balancing exercise is a further reason for leaving such decisions to a court.
Because each decision will need to be individually assessed, we do not believe that a maximum number of changes could be set without the risk of being challenged as arbitrary. Of course it will be the case that the more times a defendant requests a change, the stronger the justification that the court will require, in order to be convinced that it is genuinely in the interests of justice that the case should suffer further delay and expense.