Holding the balance

The row about a law firm gloating over its success in winning a case for a local authority against the parents of a special needs child brings into focus whether it is
in the public interest for firms
to act only on one side in any given area of law.

The division is most apparent in personal injury work, where only a handful of firms are instructed to do defence work and where the separate sides of lawyers even have their own lobbying groups - the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers.

Onlookers may feel that the arguments between the two sides on matters such as the small claims limit and whiplash reforms are as accurate and illuminating as those in the referendum debate - and just as harmful.

Likewise, criminal work. When
I started practising it was usual
for the local police to instruct defendant solicitors who had impressed them to prosecute cases. Those lawyers were not expected to give up defence work. We would switch in the same court on the same day
from prosecuting to defending and back again, although obviously not in the same case.

It was usual for the prosecutor to be on the right and the defence solicitor on the left
as the bench looked down.
One chairwoman insisted
that we change places when we switched. Maybe our advocacy was so balanced that she could not tell which side we were representing.

With the introduction of the Crown Prosecution Service and centrally contracted defence firms, all of that has changed,
very much for the worse in my view. The same is broadly true in other areas, such as immigration, housing, and judicial review.

In certain areas solicitors still act for both sides - employment is a notable example - which greatly improves the quality and temper of representation. If a typical month involves advising on settlement agreements for claimants, advising a company on a redundancy programme, and conducting employment tribunal cases for both, then a sense of perspective is maintained.

Whatever one's views, a solicitor is hardly likely to attack employers for being Dickensian or accuse a group of
employees as suffering from compensationitis if you are representing both.

The Bar, to its credit and benefit, has largely avoided this and individual barristers still act for both sides in personal injury work and still prosecute and defend in criminal cases. Also to their credit many local authorities sacked the firm at the centre of the special needs row.

Clients are better served by lawyers who can see both sides
of a story. With institutional clients, such as insurance companies, the state, and local authorities, that is their choice, not that of individual firms.

If insurers started instructing so-called claimant firms in personal injury work, local authorities instructed a wider range of firms, and prosecutions were back in the hands of law firms I believe that many of the problems facing the profession now would disappear.

Kerry Underwood is senior partner at Underwoods Solicitors and a course specialist in qualified one-way costs shifting @kerry_underwood kerryunderwood.wordpress.com

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