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I used to have an eccentric aunt who would write angry and irrational letters to the local paper. I must take after my aunt as I keep finding myself using the Legal Costs Blog as the equivalent of an irate letter to the local rag.
On the subject of “angry and irrational”, the costs lawyer debate continues to rumble on with a recent edition of the Association of Law Costs Draftsmen’s Costs Lawyer magazine devoting large parts to the topic.
The debate obviously has a number of different strands to it, with interesting arguments being put forward in relation to different issues.
Let us assume for current purposes that those who previously attained Fellow status do indeed have appropriate knowledge of costs law (now and not just when they attained that status) and let us also assume that those who had attained Associate level (who have now been automatically upgraded to Fellow level) were equally “competent” in costs law.
Let us focus our attention on the issue of elevation of Fellows to costs lawyer status by virtue of simply attending the costs lawyer course.
When I attended the costs lawyer course last year, it covered three different areas over two days: Accounts, the CPR and Advocacy.
The Accounts section related to handling client money. Why, other than possibly obtaining a payment of account when acting for a litigant-in-person, a costs lawyer would want to be handling client money is a mystery to me. The ALCD would have better advised to have simply banned members from handling client money. This is something likely to end in tears, but that is another debate.
The CPR part of the course was a bit baffling. A half-day course was clearly wholly inadequate to teach the areas it tried to cover. If one assumes that those who had already reached Fellow status were already familiar with the CPR (hence the briefness of this part of the course) then the only useful purpose of including this section would be to explain exactly what a costs lawyer could or couldn’t do when exercising their new rights to conduct costs litigation. The course did not do this and I am still not 100% sure as to what the limits of the rights are.
We then come onto the other element of the course: Advocacy. As I mentioned when I discussed this aspect before, the advocacy element lasted one day and there was no test or other assessment process to judge the competency of those attending. There is no requirement for any previous advocacy training or experience. At the end of the course, those who had attended were granted rights of audience in relation to detailed assessment proceedings including appeals before a High Court Judge or Circuit Judge. The ALCD, or ACL (Association of Costs Lawyers) as we must now learn to call it, has been justifying the recent changes to its structure on the basis that these changes are largely inevitable as part of the modernisation of the profession. It is therefore interesting to examine what developments are occurring elsewhere in the wider legal profession.
The Joint Advocacy Group (JAG) was established by the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards to develop a scheme to quality assure criminal advocacy across the three professions. Some will immediately say that comparisons with criminal advocacy are entirely misplaced. An individual’s liberty may be at stake in criminal proceedings which is infinitely more important than grubby disputes over legal costs. However, a single legal costs dispute can, and often does, run into millions of pounds. An individual may be bankrupted as a result of the legal costs at stake. A company can become insolvent. A firm of solicitors may collapse. Let us not underestimate the importance of what can be at issue. Further, JAG has said: “Further consideration will be given to the question of quality assurance in relation to other areas”.
JAG has recently published a Consultation paper on proposals for a quality assurance scheme for criminal advocates. It is worth exploring in some detail what they had to say about advocacy and how this appears to contrast with the ACL’s approach to the subject:
“Effective advocacy is fundamental to the justice system. Members of the public rely upon it for the proper presentation of their case and the courts are dependent upon it for the proper administration of justice. There is therefore a need for systematic and consistent quality assurance of advocates. … The proposed scheme therefore builds on the existing education framework for entry into advocacy to develop a rigorous assessment process to ensure that adequate standards are attained at the start of an advocate’s career.”
Higher rights of audience are granted by the ACL without any form of assessment process. There is a total absence of “quality assurance” or “assessment process” in the granting of these rights.
“Periodic re-accreditation will ensure that those standards are maintained as the advocate’s career progresses. This is complemented by an informal reporting arrangement for judges and others to refer poorly performing advocates for remediation or re-training.”
The ACL has no similar re-accreditation process (never having put in place an “accreditation process”) and had made no public announcement that it plans to do so.
“Regulatory intervention into the advocacy market has long been argued as unnecessary as market forces should eliminate the under-performing advocate. However, whilst market forces can generally be relied upon to identify the competent advocate, it is not necessarily the case that the less competent will not be instructed. In addition, it is increasingly uncommon for an advocate to be observed by the selecting professional. It has become apparent therefore that natural selection through market forces is not the answer to assure the quality of all advocates. The public interest and consumer protection requires a more proactive approach to assuring advocacy competence.”
This is probably a particular problem in relation to detailed assessment proceedings. There is probably no other area where the (professional) client is less likely see the advocate in action.
“Oral advocacy is a performance skill. As such, it must be both taught and assessed in a manner which reflects this. It follows that any system of quality assurance must focus on the assessment of actual performance if it is to provide an effective and rigorous assessment and accreditation of oral advocacy which addresses and tests the standards of the key requisite skills.”
“JAG proposes that the QAA scheme should include four levels of criminal advocate, similar to the levels used by the CPS in allocating advocates to cases. The final defined levels will be determined in the light of consultation responses and after discussions with the CPS in order to assist with harmonisation.”
This is interesting. One of the ACL’s justifications for upgrading Associates to Fellows was that there were too many membership categories. (In fact, the ACL is probably small enough that each member could be given their own title and the system would still work fine. How about “Associate Deputy Lieutenant Costs Lawyer, with Two Stars”?). So the ACL is going off in one direction just as the rest of the legal profession is going in the other.
“Advocates will be assessed to minimum standards of competency at each level. Levels in a regulatory QAA scheme are not therefore a means of recognising excellence but are present to ensure that advocates are operating at a level at which they are competent. Advocates will be assessed against the common advocacy standards at each level.”
Readers will recall that the ACL has justified the recent change in structure on the basis that “the relevant test has to be one of competence, not excellence. The ALCD would be failing in its duty to entrants and the public if it were to set the bar so high that only a select few could clear it”. In relation to advocacy, the ACL has not set the bar too low. It never set one in the first place and shows no plans to do so in the future.
“JAG proposes that all advocates at all levels should be subject to compulsory re-accreditation every five years.”
The recent decision to automatically upgrade all Associate members to Fellow is not directly linked to the problem of inadequate advocacy training. It has, however, highlighted it. The ACL is now granting higher rights of audience to a large number of additional members who previously did not have such rights.
Given the issue of professional standards in the ACL has moved centre stage in recent months, you can imagine my surprise by what fluttered out of a recent edition of Costs Lawyer magazine. This was an application form for a course titled: “Client Care, CPR and Advocacy (Costs Lawyer course)” – ie the course that promotes the newly upgraded ACL members to costs lawyer status. Other than the apparent change in subject from “Accounts” to “Client Care” (although the former is possibly covered by the latter) this is the same course I attended last year.
There was, however, one subtle change. The date for the course was 1 November 2010 (9.00am to 5.00pm). The two-day course has been reduced to one. I suppose the advocacy part may have been allocated a whole half-day. If it was the afternoon slot, it was probably 3 hours. Previously, when the ACL was striving for excellence, a full day would have been considered necessary. Now that the test has been set at a level of “competence”, a half-day suffices.
There appear to be one of two ways of viewing this issue:
1. Advocacy, at least in relation to detailed assessment proceedings, is something requiring little or no skill or experience. This includes costs appeals before High Court Judges and Circuit Judges. A level of “competence” can be achieved by those who may have had no previous advocacy experience in a 3 hour training session. Any form of initial or ongoing assessment is entirely unnecessary given how undemanding costs advocacy is. In this context, the ACL’s chairman’s comment that some of its members should be saying in big cases: “Don’t instruct a barrister. I can do this” makes perfect sense. The ACL granting higher rights of audience as though they were handing out Smarties is nothing to be concerned about.
2. Advocacy, at whatever level, is indeed a specialist skill that requires proper training and should be properly assessed. The ACL Costs Lawyer course should ensure that those standards have been met before granting higher rights of audience. The course is not fit for purpose.
There has been legitimate criticism in the past of those posting anonymous comments on the Legal Costs Blog denigrating aspects of the ACL. Let’s balance that now by having some non-anonymous comments from those who believe the ACL’s approach to advocacy standards is appropriate.