Good reasons NOT to put yourself fully at the mercy of your solicitor…
A worrying trend I’ve noticed lately is the number of people asking me for help with criminal prosecution matters despite them having retained the services of a solicitor. After speaking with the client it soon becomes clear why: Because their solicitor has left them in the dark and without any clear line of communication. This puts the client in a state of anxiety. They may be unsure as to what awaits them at court; have concerns about their defence; or have something important to bring to the solicitor’s attention, but the client is fearful of pestering the solicitor in case it puts them in bad standing with the only person – so it seems – who can help them
If the client does pluck up the courage to contact the solicitor, he or she can find themselves dismissed with glib responses, such as:
“Don’t worry, I’m onto it . . .” “Just waiting for this . . .” “Still waiting for that . . .”
. . . All the while impressing upon the client just how busy they are: Common delaying tactics among solicitors who treat clients as if they are chickens on a rotisserie, being checked every once in a while to see which one is closest to being cooked.
Be wary of any solicitor who leaves you in the dark
The best advice I can give to anyone facing prosecution is to be wary of any solicitor who refuses to heed requests for information you deem vital to your defence. Don’t make the mistake, as so many people do, of thinking you can sit back and let them get on with it. Despite how personable and confident your solicitor seemed while you were signing the necessary legal aid forms, or filling out a cheque, your solicitor is not your friend. At best he is an officer of the court: whose job it is to usher you through the daunting process of prosecution, in the hope of limiting whatever damage you might do if you were to represent yourself.
Your solicitor is not going to help you ‘get off with it’
Solicitors don’t go out of their way to get people ‘off’. They present the facts and the evidence as they find them. If the facts of the case aren’t already established, your solicitor won’t help you formulate a convincing set later. Nor will they be out there, feverishly hunting for fresh evidence, like lawyers do on the telly.
As far as most solicitors are concerned, the prosecution’s version of events becomes the defendant’s as well. It’s shocking how many defence solicitors accept the case file, prepared by the Crown Prosecution Service, as a statement of fact. Few solicitors ever bother to compile the defendant’s case in the same way the prosecution prepares the crown’s case. In all likelihood the first time your solicitor will take a proper look at your case is ten minutes before he’s due in court to represent you.
Your solicitor won’t be taking a special interest in your case because he thinks you’re innocent
Your solicitor didn’t take on your case because he thinks your innocent, or because he wanted to fight a battle against injustice. That kind of romantic notion was tossed out the first day he left law school. Most solicitors assume their clients to be guilty anyway. That’s because most of them are. But that doesn’t mean the client should walk like lambs to the slaughter into the arms of any prosecution the police and the CPS can throw at them.
Over 90% of all criminal cases are heard before the magistrates, and the acquittal rate is extremely low by comparison to that of the Crown Court. Perhaps because in crown court you can expect to be defended by a barrister not a solicitor. Perhaps also because too many solicitors believe that a guilty verdict is a foregone conclusion, so they focus their efforts on submitting a good mitigation before sentence is passed, rather than putting up a good defence before the verdict is reached.
Your solicitor is not ‘different to all the other solicitors’
Just because your solicitor got you, or one of your mates, off once before, doesn’t make him special. All solicitors claim to be good at what they do, but unless you are constantly being arrested and prosecuted, and shuffling through solicitors like a deck of cards, how are you ever going to know if one is any good or not? The truth is you can’t know. Not unless you sit behind one in the public gallery at court, day in day out, keeping a score card of his acquittals and convictions.
Relatively speaking they are all pretty much the same (although some are more relative than others). After all, they are all bound by the same code of conduct, court procedures and poorly crafted defence strategies. So drop any idealised notion of your solicitors infallibility as you might just be placing too much faith in his competence. Your solicitor isn’t some kind of legal wizard, ready to pull out his magic book of loopholes and cast a spell over the proceedings. Nor is he going to stick his neck out on your behalf in front of the magistrates. Don’t forget, he has to appear before that same court every day. You don’t. He is not going to say or do anything that could give him a bad reputation with the court and potentially prejudice his future clients.
Your solicitor is not going to get you special treatment because you are loaded
Don’t be fooled by what you read in the press. Being privately funded, well off or rich does not mean you will access a higher level of justice than everyone else (although being famous might help). High price, specialist lawyers may be able to spot an error of law that an average high street solicitor would not, but the only real difference between private and public funded solicitors is their quality of manners.
It doesn’t matter if you are on legal aid or paying out of your own pocket, the moment you instruct a solicitor, you become both a client and a consumer, entitled to the same level of service and protected by the same set of associated rights.
Be pro-active in your own defence
Nobody will ever be as interested in your defence as you. Get a copy of the prosecution file. You are entitled to it. It’s not a secret document strictly for the eyes of lawyers. It is an entire breakdown of the prosecution’s case. If anyone knows the facts surrounding the case, it’s you.
If your solicitor hasn’t forwarded you a copy of the CPS file in a timely manner then insist upon it. Go through it. Check all the police statements, the witness statements, the list of evidence. If there is anything missing, or in error, you are more likely to spot it than your solicitor. They may be adept at finding the occasional fault in procedure and law, but they are no experts in fact.
The CPS will always load the evidence in favour of the prosecution. They will also ensure that any vital piece of evidence that could cast an element of doubt upon the proceedings won’t be made available. Too many solicitors allow the CPS to dictate the terms of disclosure and fail to make the necessary objections and applications, before it’s too late. Don’t allow that to happen to you.
Don’t be afraid of pestering your solicitor
It is essential you discuss the facts of your case in advance of your trial. That way your solicitor has plenty of time to prepare. He can interview witnesses. He can write to the CPS and ask for evidence they have not yet disclosed. He can make any necessary applications to the court.
Don’t be dissuaded from contacting your solicitor just because you don’t want to cause a fuss, or you think he might be too busy. No client should have to put their liberty at risk because a solicitor is too busy to discuss important issues with them. Poor representation of a client, due to an excessive workload, would be no defence should a complaint be made to the Legal Ombudsman.
Don’t take no (or no response) for an answer
If your solicitor has not given the advice you need; if you feel left in the dark, worried or uncertain about what is happening; if you think evidence has been overlooked, then go to the law firm office in person. Otherwise, be persistent with telephone calls and emails until you get the answers you are looking for.
Don’t let your solicitor talk you down or tell you what your defence should be. If you have questions about the case ASK HIM. If you think essential evidence is missing, TELL HIM. Your solicitor works for YOU, not you for HIM. Don’t be afraid to INSTRUCT your solicitor and tell him how you want things done. You might feel uncomfortable about having to adopt such a confrontational stance, but it will be a small price to pay for a better defence.
Don’t be afraid to complain
It is your solicitor’s duty to keep you updated and informed, not a luxury. If your solicitor is unapproachable, unavailable and unhelpful then complain. Don’t be in fear that if you make a complaint while your case is ongoing, your solicitor will drop you or deny you a suitable level of service. A solicitor who continually neglects his clients could ultimately find themselves struck off. The majority of solicitors fear the complaints’ process and won’t act in spite of it.
The moment you make it clear you are unhappy with your solicitor’s level of service and intend to complain, he will jump. If he doesn’t, ask for a referral to another solicitor.
How to complain
You have six years in which to lodge a complaint about a solicitor. The first stage is to write to the solicitor’s firm and give them the opportunity to resolve your complaint. They have 8 weeks in which to reply.
If they ignore you, or their response is inadequate, you can take your complaint to a legal watchdog. Forget about complaining to the Solicitor’s Regulation Authority, they are as good as useless and biased in favour of solicitors. Instead escalate your complaint to the Legal Ombudsman. If they find your solicitor at fault they can instruct him or her to pay you damages.