Fraud case judge slams solicitor- advocates for ‘incompetence’
Thursday 23 April 2009 by Catherine Baksi
An extraordinary public row has erupted over the role of solicitor-advocates after a Crown Court judge told a court that he came close to discharging a jury because of concerns that a solicitor lacked the competence to represent his client properly.
Speaking in open court at the end of a two-week criminal trial, Judge Gledhill QC (pictured) criticised the performance of three of the four solicitor higher court advocates in the case. He also alleged that the advocates’ firms had chosen ‘to keep the trial within the company’ for financial reasons.
Both firms denied the accusation. One of the firms, Bullivant & Partners, said it is preparing a complaint to the Office for Judicial Complaints.
The trial concerned a £50,000 conspiracy to defraud. Three defendants, Qiu Yeu, Khi-San Voong and Qian Xue, were convicted and the fourth, Dau Yee Chung, was acquitted.
Gledhill made his remarks in an address to the only one of the four solicitor-advocates to escape his censure, self-employed consultant Kate Roxburgh. He said that during the trial ‘basic rules of both law and procedure’ had been regularly broken.
One solicitor ‘addressed the jury directly’ on two occasions in cross examination, another ‘clearly had no idea what the rules of re-examination were’ and the jury was ‘misled about one of the defendants’ bad character’.
‘The list goes on and on,’ he said.
At one stage, Gledhill said, he was so concerned about the lack of experience and competence of one of the solicitors that he felt he might have to conclude the defendant was ‘not properly represented’ and discharge the jury. ‘Fortunately that stage was not reached,’ he said.
Gledhill said the solicitor in question had done his best but ‘his knowledge of the law, procedure and advocacy skills fell below that which is needed in this case’.
He suggested legal aid rates might have contributed to the decision to keep the work in-house, ‘in effect doubling the income from the case’.
Two of the solicitor-advocates criticised were from London firm Bullivant & Partners, and the third was from London firm McCormacks.
In a four-page statement this week, Bullivant & Partners said its advocates ‘refute the accusations of incompetence’ and accused the judge of creating an ‘intimidating atmosphere’ for the advocates. The statement quotes Roxburgh as saying the judge’s hostility ‘was conveyed by facial expression and vocal intonation… he referred to us innumerable times as “solicitors” in tones of contempt’. In contrast, it said, the judge treated the only barrister in the case – the prosecuting counsel – ‘with perfectly proper courtesy’.
The firm denied the judge’s accusation that it had kept the case in-house for financial reasons: ‘To assert this is to assume that solicitors will disregard their professional duties to their clients for financial gain.’
McCormacks, whose client was acquitted, said: ‘Judges ought not to use the bench as a platform for making suppositions about the way advocates are instructed without first seeking evidence of the facts.’
Antony Townsend, chief executive of the Solicitors Regulation Authority, said: ‘Solicitors are required to uphold the proper administration of justice and to provide their clients with a good standard of service. They should not act in cases that are beyond their level of competence.’ He said that Judge Gledhill raised ‘serious concerns that will be investigated’.
Comments
Are we not as good as the bar?
I don't know whether to laugh or cry - solicitor advocates work very hard to be as good as they can be, but there still appears to be a feeling out there that if you're not bar, you won't go far.
I am a solicitor who has
I am a solicitor who has spent many years working within the criminal law and I feel forced to comment on the elephant in the corner that Solicitors refuse to acknowledge. For firms to claim that they are not using Solicitor-Advocates for purely financial reasons is a lie that goes so deep that it should be investigated by the SRA. When, many years ago, Solicitors were given the right to appear in the Crown Courts there was a very slow up take, and only those Solicitor-Advocates who had a genuine "calling" used the opportunity. Today the Crown Courts are flooded with Solicitor-Advocates, often those who have had very little time practicing their skill in the Magistrates Courts before appearing in the Crown Court. The fact is that in the face of (often genuine) criticism from the Bar, Solicitor-Advocates close ranks and defend their abilities, rather than accepting the truth which is that the Senior Partners of firms (forced by Government cut backs) are insisting that they obtain Higher Rights, when in reality they may not ever want to appear before the Crown Court. These people are given little training and it is therefore unsurprising that they are criticised. Being happy at work (whilst unfortunately not something all of us can expect to happen) is a massive motivator, and it is only to be expected that people who are unhappy in the Crown Court do not perform well there. From personal experience I know that many Solicitor-Advocates have no desire to be in the Crown Court, but know that if they are not, their jobs will be at risk. When 90% of cases begin and end in the Magistrates' Courts why are we as a profession allowing the Government to de-value the Magistrates' Court Advocate's skills by granting rights of audience to the unqualified, and creating an environment where if as a solicitor we do not have higher rights, we are considered incapable of doing our jobs?
Judge Gledhill's comments
There are a lot of incompetent judges. Many do not read the papers and make elementary factual mistakes. There are many fine barristers, but the mediocre ones tend to regard the Bar as a club and fear solicitor sdvocates. The criticisms of the judge I have read sound pretty trivial, certainly compared with some of the howlers I've come across from barristers over the last 39 years..
In the words of the U.S. President,'We have to move forward'.
Judge Dledhill's comments
When day's oppression is not eased by night,
But day by night, and night by day, oppress'd? (shakespear).
We have to move forward...
The full response from one of
The full response from one of the firms is attached
http://www.wikicrimeline.co.uk/images/c/c9/Hcaresponse.pdf
See Woodside v HMA, [2007]
See Woodside v HMA, [2007] HCJAC 1 at http://www.scotcourts.gov.uk/opinions/200HCJAC19.html . A murder case in which the defence at trial had been conducted by a solicitor-advocate with “only the most diminished awareness of his responsibilities” (in the words of the appeal court) on the instruction of a junior solicitor in his own firm who had no choice as to who to instruct.
Woodside Case
The reference to Woodside would not be completed without reading this:
http://www.journalonline.co.uk/News/1006500.aspx
HHJ Gledhill's comments
I drifted into a career in law simply because I was a trained stenographer, a job long since gone.
I was put to work with a common law manager of considerable repute. On my first day he asked for a chat. I sat very nervously as he made it quite clear to me he was taking a chance as he normally would not accept anyone under the age of 25. I was 19. His next remark is as relevant today than it was 40 years ago: I will not let my standards slip because ofyour age because if I did, they would not be raised to what they were. I am pleased to say I did not let him down.
I maintained my tutor-manager's attitude throughout my career.
I went into private practice as a debt collector with a firm of solicitors. I was encourage to apply for a job as a Litigation Managing Clerk (as we were in those days) with another firm. I was astonished to discover that the majority of my work load was matrimonial and divorce. I became facinated with those who had the ability to work out how accidents were caused and how to handle that type of claim. After 2 years I decided that working 6-7 days a week was affecting my health and I left.
I was 23 when I realised that the way forward was to specialise and not to be a jack of all trades. I decided that I would find work with solicitors who specialised in handling accident claims and was put in touch with a senior partner who was of top draw standard.
I made numerous complaints to the Law Society, Legal Aid, about the respects in which money was being wasted but each one fell on deaf ears. It took the Legal Aid Board another 30 years before the penny dropped with them: employ specialist solicitors and safe money.
It begs the question of how much longer it will take before the Minister of Justice accepts that each lawyer has his or her own specialist subjects and that restricting them to those sort of cases ia the best way forward.
Revering to my initial comments, over the last 35 years I have seen standards drop to levels that would not have been tolerated over those years. I am disappointed to note that the Judge has not made it public that he intends to write a letter of complaint to the Law Society and to demand an investigation into the conduct of the solicitors' principals and the abiity of each solicitor he has criticised. If the Judge fails to make such a complaint, how are the incompetant to be prevented from appearing in trials that are known to be beyond their ability?
On a humour note, I appeared before a District Judge and my plaintiff adversary failed to attend and the DJ asked if I knew if he was coming or not? Yes, we spoke last evening. After a delay the DJ asked me to proceed. I did. There was a knock at the door and in walked my adversary who apologized for being late. Sir, he said, I left my office early and so I went into McDonalds for a cup of coffee. As I got to the island nearto the courts, I rubbed my hands across my mouth only to discover that I had left my false teeth in a cup and so I had to go back to McDonalds and that is why I am late today.
comment
The role of advocate/solicitor is very prominant for the presentation of the case before court, yes, but the solicitor/advocate are only the helping hands towards justification of the case the ultimate decision must be depends upon the discretion of the Hon'ble Judge who has to act as an agen of Goddess of Law, hence the efficiency of a solicitor is not been questionable at all but been accountable I think.
Solicitor Advocate
I've seen many solicitor advocates in my time - not one of whome demonstrated anywhere near the required level of competence to exercise higher rights. Two who stand out in particular are - one who answered his phone in the middle of addressing the judge and then proceeded to offer his client's passport as surety for bail (the charge was forging 3000 passports) another who had to be coached through by the judge and opposing counsel (with the judge directing him to the page in Civil Procdure Rules that he needed to back up the development of his skeleton argument)...all in all, stick to what you are good at - the damage done to advocate's firms in this ear-bashing is quite irreparable in my opinion.