I have been accused of a motoring offence. Should I instruct a solicitor or a barrister?
Until relatively recently the public could only engage the services of a barrister by instructing a solicitor who would ‘brief’ the barrister ie a client would engage a solicitor who, in turn, would instruct a barrister for the client. Now there is a choice: the public can directly engage a barrister themselves without the need to instruct a solicitor at all or, they can still, if they wish, engage a solicitor who will instruct a barrister for them (which means paying for 2 lawyers when one could do!) It seems that most people look online for a lawyer and speak to several before making a decision. Consequently, when people first ring me I am sometimes told, ‘I have spoken to a solicitor who says pay me £X and I will arrange for a barrister to represent you’. This comment gives rise to various issues.
Do you know how much the solicitor will pay the barrister?
Usually the client has not thought to ask this question. However, the proportion of the fee paid to the barrister is directly relevant to the barrister’s ability to obtain the best possible result. You need the most able barrister you can afford. After all, whether you retain your driving licence could depend on it. However, the solicitor’s immediate financial interests are not aligned with yours in that the lower the proportion of the fee payable to the barrister the more of the fee the solicitor will retain.
The fees that a barrister can command tend to depend upon a range of factors such as seniority, specialisation, and reputation. At the cheapest end of the scale are ‘pupil’ barristers who enjoy a right of audience (to represent Defendants in court) after completing just 6 months of their pupillages but to whom the other factors mentioned above hardly apply (as they have not even fully completed their practical training). Therefore, there is a direct correlation between the fees charged by the barrister and his or her ability (at least, as measured by seniority, specialisation and reputation – barristers of whom these things can be said are usually expensive to hire). It will not have escaped the reader that this means there can be an inverse correlation between the proportion of the fees retained by the solicitor and the ability of the barrister instructed on behalf of the client to obtain the best possible result (in other words, the more of the fee the solicitor keeps the less will be available to instruct a barrister, and, the less available for the barrister the more junior and inexperienced he or she is likely to be).
When at risk of losing your driving licence you should consider whether delegating the choice of your barrister to a solicitor is in your best interests as the solicitor’s pecuniary interests may be in conflict with yours. You should consider how this could affect the choice of barrister made on your behalf. (A reputable solicitor will advise you of the seniority of the barrister, the proportion of the fee he or she is to be paid, whether he or she specialises solely in the field of law concerned etc). You may wish to ask yourself if there is any clear advantage in instructing a solicitor at all in the circumstances of your case. Of course, if you require litigation services (such as having letters sent and received on your behalf, your lawyer going on the record with the court, the taking of witness statements etc) then you should consider instructing a solicitor as they specialise in litigation services. On the other hand, if you don’t require such services then an alternative is to directly instruct a public access barrister yourself thereby ensuring continuity of representation and that all of the fees you pay go towards securing the best courtroom representation you can afford. After all, your licence could depend on it.
motor offence barrister