Do solicitors need a special qualification to enjoy higher rights of audience? The SRA has begun a consultation into whether all restrictions should be lifted, reports kate Hanley


What is the difference between a 23-year-old barrister who has just completed pupillage and a solicitor with 40 years’ practical litigation experience? Answer: the former has automatic advocacy rights in the House of Lords (theoretically, at least).



The current professional rules governing rights of audience for solicitors and barristers would appear to be at odds. Vastly experienced solicitors are still required to prove themselves in the courtroom, while a newly qualified barrister with little mileage before the bench has automatic access to the higher courts.



A further anomaly is that advocacy is the only area of solicitors’ practice that requires a separate qualification. Why not drafting, or client negotiation or any other equally essential skill? And why is a million-pound county court settlement considered fair game for solicitors, and not a case of shoplifting before the Crown Court, or even just taking a judgment in the High Court? Then there is the protracted and complex fraud trial, where a query arises but the advocate is unavailable – the solicitor who knows the case inside and out cannot rise to his feet and resolve the issue.



The apparent inequality of the system has prompted the Solicitors Regulation Authority (SRA) to re-examine the rules governing solicitors’ higher rights of audience. It launched a three-month consultation process this month to review whether current restrictions on solicitors are justifiable (see [2006] Gazette, 7 December, 3). At the SRA board meeting which approved the consultation, solicitor member Edward Solomons described the present rules as ‘illogical’ and nothing more than a ‘restrictive practice’. It should be the nature of the work, he contended, rather than the nature of the court which determines the qualifications needed.



The present requirements are laid down in the Higher Courts Qualification Regulations 2000, which amended the 1998 regulations and the 1992 rules before that, marking a gradual relaxation of restrictions over the years. However, the mandatory qualification still exists.



Anthony Maton, partner at national firm McGrigors and executive committee member of the London Solicitors Litigation Association (LSLA), recalls: ‘I actually qualified as a barrister, but when I returned to the solicitors’ profession in the early 1990s, I immediately lost my higher rights of audience simply because I had changed my professional title. These days, you can retain your higher rights, but it is still quite a complicated process. It’s a good example of the fact that we do not have a level playing field between the two professions.’



Under the current system, there are three routes for solicitors to gain advocacy rights in the higher courts (that is, the Crown Court, High Court, Court of Appeal and House of Lords): the exemption route, for solicitors or barristers with at least three years’ post-qualification experience (PQE) who can demonstrate a track record of advocacy in the higher courts; the accreditation route, again for solicitors with at least three years’ PQE, who can show litigation experience (not necessarily advocacy) in the higher courts, and who complete advocacy training and assessment; and the development route, for more junior solicitors who complete thorough training and assessments in advocacy, evidence, procedure and ethics, including a portfolio of experience.



‘I think there is some further need for change,’ continues Mr Maton. ‘As a matter of principle, advocacy is a skill learnt during training, albeit a specialist skill that requires more practical experience, and solicitors and barristers should be given a more equal footing.’



Court procedure is clearly the cornerstone of teaching at bar school and during pupillage. Conversely, advocacy is merely touched upon in the legal practice course (LPC) and allocated around three days of teaching during the professional skills course for trainee solicitors. According to the SRA, LPC providers typically allocate between seven and 12 hours for advocacy, as opposed to 44 hours on the bar vocational course.



While no one would deny that newly qualified barristers are better equipped for the courtroom than their equally junior solicitor counterparts, it is the procedure for bridging the gap that is at issue. Advocates for change, to coin a phrase, argue that the current system is unduly restrictive and inflexible, and that the client should have greater freedom of choice when selecting their representative in court.



‘At the moment, the process is complicated and cumbersome, whatever level you are seeking the qualification,’ argues Herbert Smith litigation partner and solicitor-advocate Adam Johnson. ‘There is considerable complexity and cost, particularly for younger lawyers and those at smaller firms, who may be put off when they are otherwise very well qualified to be advocates.’



Since the last amendment of the rules in 2000, the number of solicitor-advocates has increased by 212%, with some 3,517 solicitors currently holding higher courts qualifications. To put this into context, 1,909 solicitor advocates specialise in criminal proceedings, while there are roughly 5,000 barristers who do criminal work – not quite the landslide domination by the bar that one might expect.



The advantages of solicitor-advocates are clear. Clients benefit from a representative with a deeper understanding and familiarity with their case than a barrister, who may have been instructed at short notice or for an isolated hearing. There may be cost savings for the client, with a solicitor being paid on an hourly rate as opposed to receiving a brief fee, which becomes even more relevant should the case settle before trial. And even if advocacy rights are rarely utilised by the solicitor, the qualification provides a greater understanding of the overall litigation process, improving trial preparation and case management.



‘There is something about integrating the business of case preparation and case presentation that can make a real difference for clients, as well as assisting the judiciary,’ adds Mr Johnson.



As part of its consultation, the SRA has put forward three alternative arrangements to amend solicitors’ access to higher rights. The first is to retain the current restrictions, but replace the one-off qualification with a compulsory accreditation scheme, including ongoing evaluation. A second option is to remove the current restrictions and have a non-mandatory accreditation with ongoing evaluation, although solicitors would be ‘expected’ to be accredited. The final possibility is to remove the current restrictions altogether and rely solely on the solicitor’s professional duty not to act unless competent to do so.



At one end of the scale, the first option may do little to resolve the anomalies of the current system. At the other end, there is a risk that the third arrangement could pave the way for poor-quality representation.



‘There will always be some people tempted to act outside their competence, but that is a danger in any area of legal practice and a matter for general regulation,’ argues Mr Maton.



Avtar Bhatoa, chairman of the Solicitors Association of Higher Court Advocates, is less convinced. ‘The major concern anyone will have is quality assurance,’ he says. ‘But on the whole we welcome this consultation paper.’



Mr Bhatoa highlights the separate review of advocate quality monitoring which is currently being chaired by Lord Justice Thomas for the Bar Council. This arises out of a recommendation in the Carter review of legal aid procurement. ‘The two processes may dovetail in the interests of clients and the interests of justice,’ he predicts. New Bar Council chairman Geoffrey Vos QC also recently outlined his plans for enhancing advocacy at the bar (see [2007] Gazette, 18 January, 6).



The main challenge of the SRA consultation is to achieve fairness and equality for solicitors on the one hand, while ensuring competence on the other. ‘One needs to strike a balance,’ says Mr Johnson. ‘It is important that people who appear in court have some form of experience, training and understanding of the obligations of an advocate, not just to their client, but to the court. There are some fundamental issues relating to being an advocate that must be fully taken into account.’



The Bar Council declined to comment, with Mr Vos preferring to await completion of the consultation process before responding to the proposals. But to some extent, the reaction of the bar is predictable – the prospect of thousands of unwigged solicitors let loose across the court circuit will be enough to leave many a barrister sobbing in the robing room.



Meanwhile, many view this, alongside the legal disciplinary practices to be permitted under the Legal Services Bill, as yet another step towards uniting the two arms of the profession.



‘The issue is not so much whether we’ll still have a split profession, but rather, the size of the bar in years to come,’ surmises Mr Maton. Fusion is one of the oldest issues of all facing the legal profession, but perhaps it is coming ever closer to resolution.



The consultation closes on 12 April. Complete it online at www.higher-rights.org.uk


Kate Hanley is a freelance journalist