The Future of Advocacy
The model of advocacy reflected in the codes is criminal defence. Any reading of the professional rules would hardly excite concern that the rights of clients dominate the thoughts of the advocacy regulators.
The client clearly comes second best in the conception of the advocate’s role. Even the ‘client’s best interests’ formula is capable of a paternalistic spin. The continued use of the word ‘fearless’ does not quite convey the true position of the Code.The advocate’s position, as portrayed in the Code of Conduct, is conservative and establishment leaning. Examples in the literature that support the standard conception of the lawyer’s role are forbidden by the rules. For example, an advocate could not, following a client’s confession, conduct a contradictory and brutal cross-examination of a rape victim.[3177] The new codes do not convey the bold determination to defy the state that once justified the Bar’s demand for institutional independence. The question is whether the failing capacity of legal aid to sustain a cadre of high quality advocates, and creeping regulation, will fatally diminish the ability of advocates to hold power to account.
In September 2013, four barristers supported by the Criminal Bar Association sought judicial review of the LSB decision to approve QASA.[3178] The claimants argued that the scheme ‘offends fundamental issues of justice’ and threatened the independence of barristers and judges. Advocates would fear, at least subconsciously, that standing up to the judge would earn a bad evaluation. In the High Court, three judges, led by Sir Brian Leveson, President of the Queen’s Bench Division, held that the scheme was proportionate and fell within the legitimate exercise of the powers of the LSB and those of the three regulators seeking approval.[3179]
As to the evil of dependency on judicial goodwill, the Court noted that judges had exercised disciplinary power over advocates for centuries and often reported advo- cates.[3180] The fear of a ‘not competent’ rating was said to be ‘not different in kind from fear of an unjustified complaint’,[3181] although, clearly, it is very different. The legal aid cuts meant that the quality assurance of advocacy could not be left to market forces.
In the court’s view, the objective of competent advocacy was important. The scheme was justified by concerns, expressed before QASA, of sub-standard advocacy. As to this, the Court concluded that[t]here are obvious risks posed both to individuals and to the criminal justice system as evidenced from the time of the Ipsos MORI survey in 2006, through the CPS review in 2009 to the large scale survey reported by ORC International in 2012. None of these were as comprehensive and as complete as one would conduct in an ideal world, but they produced significant evidence of concerns about advocacy standards from a range of sources, including the views of the judiciary184
Whether or not the scheme was a threat to independence could be judged from the core standards the scheme assessed. These were all concerned with basic competence:
[N]o advocate is fulfilling his duty either to the client or to the court if he is not properly prepared, or presents obscure and rambling submissions, or conducts unfocussed questioning. If and insofar as a client seeks to persuade the advocate that he should attempt by prolonged and irrelevant questioning of witnesses to divert the jury from the real issues in the case, the advocate’s duty is to refuse. 185
Expensive advocacy is not always effective. For example, Mr Justice Tomlinson’s post-BCCI Working Party’s interim report singled out an 80-day opening speech in that case as ‘wasted’.186 Nevertheless, it would be a retrograde step for society if, in future, only those with deep pockets obtain the advocacy they need and desire.
VI.