Legal representationLegal representationLegal representationLegal representationLegal representation:solicitorsLegal representation:barristersLegal representationLegal representation(reproduced in full in appendix A)Legal representation:solicitorsLegal representation:finding a lawyerLegal representation:barristersLegal representationLegal representation:solicitorsLegal representation:finding a lawyerLegal representation:barristersLegal representationLegal representationFunding:non-legal aidLegal representationFunding:unbundlingPractice Guidance:Committal for Contempt of Court (May 2013), Lord Chief Justice and President of the Family Division
6.15Unless the court (unusually) gives permission for a McKenzie friend to conduct the litigation, legal representation in the Court of Protection will be by a qualified lawyer, who will be a solicitor, a barrister, or in some cases a Fellow of the Institute of Legal Executives.
6.16As we have seen, cases in the Court of Protection may be heard by district judges, circuit judges or judges of the High Court. Until 29 January 2016 most Court of Protection hearings took place in private, sometimes referred to as ‘in chambers’. The exception to this rule were serious medical treatment cases, which have usually been heard in public.
6.17The Transparency Pilot reversed the default position so that cases are now normally heard in public, with reporting restrictions to protect the identity of P and members of P’s family.
1The Transparency Pilot is discussed in chapter 13 at para 13.13 onwards. The Transparency Pilot Practice Direction
2Transparency Pilot PD para 2.6. provides that legal representatives with rights of audience in private proceedings in the Court of Protection can continue to appear in Court of Protection cases when they were heard in public, unless there is ‘good reason’ not to allow them to do so.
3Transparency Pilot Model Order at para 11.6.18Solicitors’ firms are regulated by the Solicitors Regulation Authority (SRA) and barristers are regulated by the Bar Standards Board (BSB). Traditionally barristers are instructed by solicitors, but those who have been through suitable training can now receive instructions directly from members of the public (referred to as ‘public access’).
6.19Fellows of the Chartered Institute of Legal Executives (CILEx) are regulated by Cilex Regulation and may appear at hearings in chambers before the district court, circuit court and High Court. They may address the court on unopposed applications for adjournment or to enter judgment by consent.
Finding a lawyer
6.20For members of the public seeking legal advice about Court of Protection cases, the following may be useful sources of information:
•The Law Society maintains a register of qualified solicitors and firms. This can be accessed through the ‘Find a Solicitor’ page in the Law Society’s website.
4See www.lawsociety.org.uk. •The Law Society runs a number of accreditation schemes; and is in the process of designing a scheme for health and welfare work under the MCA 2005. Members of the scheme will have a ‘Kitemark’ showing that they have demonstrated experience in this area of law.
•The Law Society’s Lexcel accreditation scheme is a practice management standard.
5See: www.law.society.org.uk/accreditation/lexcel. Firms with Lexcel accreditation have to show that they have met certain standards in client care, risk management and case management.
•The Bar Council maintains a list of all barristers, and a further list of those offering public access, on its website.
6See: www.barcouncil.org. There is a dedicated telephone number for questions about public access: 020 7611 1472.
•Some publications provide information about solicitors and barristers practising in the Court of Protection, for example Chambers and Partners and the Legal 500.
6.21Solicitors and barristers acting on a public access basis are also obliged to provide information about their charges and the likely costs of the case at the outset of a case. Legal aid is available for certain cases in the Court of Protection, as is discussed further in the next section.
6.22Where legal aid cannot be secured, clients will have to pay privately for legal representation. Providing privately funded representation in contested welfare cases can bring challenges, because of the difficulties in predicting the costs that will be incurred.
6.23In some cases, practitioners may be able to take on cases under a partial retainer – sometimes referred to as ‘unbundling’. The Law Society has issued a practice note about partial retainer cases in family legal services.
7Unbundling family legal services, 1 May 2013; available at: www.lawsociety.org.uk/advice/practice-notes/unbundling-family-legal-services/. Practitioners considering this option should consider the advice given in the practice note. The professional obligations of the solicitor on a partial retainer are significant and include a greater responsibility to clients of unbundled services to clearly set out the responsibilities of both solicitor and client. The practice note does not recommend a partial retainer in cases of ‘great complexity or where you have concerns that the client does not have the intellectual or emotional capacity to carry out tasks that fall within their responsibility. In such cases you should carefully consider whether and to what extent it is in your client’s interests to provide an unbundled service’.
8Para 4.31.