Paying an agency for referrals of defendants awaiting trial (Code 5.1(d))

Paragraph 5.1 of the Code regulates referrals and introductions. Generally, clients must be told about any financial interest an introducer has, and any fee sharing agreement must be in writing. Paragraph 5.1(d), however, is an outright prohibition: a solicitor must not receive payments relating to a referral, or make payments to an introducer, in respect of clients who are the subject of criminal proceedings. Defendants who have been charged and are awaiting trial in the Crown Court are clearly the subject of criminal proceedings. The proposed £100 per client would be a payment to an introducer for referring them. Transparency with clients, a written agreement and the source of funding do not matter, because the protections in paras 5.1(a) to (c) apply only to arrangements that are permitted in the first place. Paragraph 7.1(b) of the Code of Conduct for Firms applies the same rule to the firm itself.

Why A is wrong: Telling the client cannot make lawful a payment that para 5.1(d) prohibits outright in criminal cases.

Why B is wrong: A written agreement is required for permitted fee sharing, but it does not authorise a referral payment that is prohibited.

Why C is wrong: The prohibition in para 5.1(d) applies however the payment is funded.

Why E is wrong: Para 5.1(d) covers all clients who are the subject of criminal proceedings, whether privately funded or legally aided.