The role of solicitor-advocates may be thrust into the spotlight amid a threatened strike by barristers. Grania Langdon-Down assesses how solicitors may achieve higher rights in the future

Solicitor-advocates could find themselves reluctantly thrust into the limelight if they are asked to step in for barristers who refuse to take on new legal aid cases as part of their fight with the government over fees.


Such is the concern that the Law Society and the Solicitors Association of Higher Court Advocates (SAHCA) issued guidance last month pointing out that judges cannot compel solicitor-advocates to stand in on a case if a barrister is not available – and they must always consider if they are competent to do the case before they step in (see [2005] Gazette, 22 September, 5).


The Bar Council is trying to defuse the strike action, with chairman Guy Mansfield telling barristers it is ‘not weak to wait’ for a resolution, and that barristers should work to make the best of the Carter review of legal aid procurement, expected in the New Year. But if the momentum for action builds – and pressure to do so in the regions has been particularly strong – SAHCA vice-chairman Avtar Bhatoa says: ‘Solicitor-advocates will not be filling any breach, so the government won’t be able to use them to make the problem go away.’


SAHCA has made it clear that it does not endorse any sort of strike action, but it ‘appreciates and understands’ if individual lawyers decide not to accept new work. Exactly the same legal aid fees regime applies to solicitor-advocates as it does to barristers, except in very high-cost cases, where solicitor-advocates are paid a slightly higher rate because they are expected to take all the instructions that a litigator would if a barrister were doing the case.


Mr Bhatoa’s personal decision is not to take any new work where the legal aid order postdates 3 October. ‘But, like a lot of QCs and senior barristers, I am already booked up well into next year. On the whole, solicitor-advocates are in a better position than the bar to turn down work, because they can still carry on working in criminal investigations and litigation.’


So far, 2,800 solicitors have taken advantage of the change in the rules in 1994 which allowed them to qualify for rights of audience in the higher courts, with 1,497 qualifying in criminal proceedings, 608 in civil proceedings and 701 in both.


The question now is how future solicitor-advocates will qualify for higher rights. There are currently three routes: the exemption route allows applicants to qualify if they have the appropriate experience and qualifications; the accreditation path requires less experienced applicants to undertake an advocacy course and skills assessment. For both of those routes, the applicant must have been admitted for at least three years.


The third is the development route. Applicants have to pass two courses – evidence, ethics and procedure, and the advocacy course. They then progress to the portfolio period, where they compile a record of their advocacy experience over a 12-month period under the guidance of a mentor, who can be a solicitor-advocate or practising barrister of at least five years’ standing. The courses can form part of the modules of the legal practice course, and six months of the portfolio can be based on pre-admission experience, but six months must be post-admission.


Under the Higher Courts Qualification Regulations 2000, the Law Society and the government agreed that the accreditation and exemption routes should be cut off from 31 October 2005. However, the Crown Prosecution Service (CPS) has pushed for an extension until the end of December 2006, which was backed last month by the Law Society Council (see [2005] Gazette, 29 September, 5).

There are about 545 higher court advocates (HCAs) working within the CPS, of whom 370 are solicitors. To practice as HCAs, CPS solicitors have to obtain the appropriate qualification from the Law Society via the exemption or accreditation route. They also have to pass an internal HCA course, at the end of which they are assessed externally by advocacy trainers from the Nottingham Law School.


Angela Deal, the CPS’s advocacy strategy programme manager, says: ‘The exemption route is very popular among solicitors because of the extent of the advocacy experience most CPS lawyers acquire, even over a relatively short period with the service. Given the popularity of that route, and the CPS’s aim to increase the deployment of HCAs, we would welcome the proposed extension.’


The Department for Constitutional Affairs (DCA) says it approves of the extension in principle, but the final decision is dependent on the approval of the designated judges.


Mr Bhatoa says the deadline has sparked increased interest from experienced solicitors. ‘We ran a course recently and 55 people turned up. My view is there should only be the exemption route to qualify, but that is not where the training industry can get its fingers, or the Law Society levy a fee.’


SAHCA secretary Philip Reed, a partner at City firm Norton Rose, says there should be a variety of ways of becoming accredited. He says he is disappointed that more solicitors have not qualified as HCAs. ‘One wishes more people were willing to embrace the challenge. When the idea was mooted, everyone – particularly the bar – expressed themselves in apocalyptic terms that there would be a massive shift overnight. With the benefit of hindsight, it has been a slower process, largely because advocacy is not an easy skill to acquire.


‘I am an evangelist for solicitor-advocates. I am absolutely persuaded of the advantages of advocacy for client services. Giving people the training, however much chance they get to use it in the post-Woolf regime, means they have a greater understanding of what life is like in a courtroom, and so can consider what the reaction of a judge would be to a piece of evidence or witness statement.’


He explains that at Norton Rose, the policy is that everyone qualifying into the litigation department must obtain their rights of audience, and then decisions on whether to do the advocacy in-house or go to outside counsel are taken on a case-by-case basis in the interests of the client.


The longest trial Mr Reed has ever done is seven weeks. ‘I had a leader for that and enjoyed it enormously. In job satisfaction terms, I wish I could do more, but the scale of the matters we handle means we don’t have many cases going on at one time and, with 80% of cases settling, few get to trial.’


Patrick Walker, who spent 20 years with a specialist commercial and chancery chambers, set up ‘Hammonds @dvocacy’ nearly six years ago at the national firm. ‘This is not a chambers within the firm. We take people who are already specialists in their field, such as construction, intellectual property or insolvency, and add to that the skill of advocacy, and they then return to their department,’ he explains. So far, Hammonds has put more than 90 solicitors and barristers though its internal QIPS (quality, integrity, preparation and success) advocacy course.


He adds: ‘One of the things I am most proud of is that we act on occasion, effectively on an agency basis, for other law firms.’ However, he stresses that they still require the external bar, and consider it essential to offer clients a choice. He is not in favour of either fusion or legal disciplinary partnerships – even though, as an employed barrister, he cannot currently be a partner in his firm – because of the ‘detrimental’ impact he predicts it will have on the chambers system.


Six months ago, City firm Herbert Smith established an advocacy unit with two QCs, two associates and a trainee. The head of the unit, Murray Rosen QC, and his colleague Ian Gatt QC are waiting for the results of their Qualified Lawyers Transfer Test, due next month, so they can be admitted to the roll of solicitors and become partners in the firm.


In total, the firm has 43 solicitor-advocates and another 40 who are in the process of obtaining their higher rights qualification. The firm also hopes to be the first to be accredited to provide its own higher rights training.


Mr Rosen, former head of 11 Stone Buildings chambers, says: ‘The experience in the City has been that it is quite difficult to promote solicitor-advocates as having the same capabilities, in terms of time and focus on the case, as you get with independent barristers. What my firm has done is have a dedicated unit offering advocacy and consultancy advice without doing any case conduct or client handling.’


He maintains that solicitor advocacy does compete with the bar. ‘I don’t think my unit will compete with the commercial and company bar, because of [the bar’s] superb quality. But I think solicitor-advocates will take work away from the general common law bar.’


One running sore for solicitor-advocates is the issue of court dress, with solicitor-advocates wearing similar robes to ushers, and no wigs. The DCA issued a consultation paper on reforming court dress at all levels in 2003. However, as one DCA official says, ‘that paper has been kicked into the longest of long grass’, despite a welter of responses from across the profession.


Mr Reed says: ‘If we had a “refurb”, with a new practice direction setting out one set of robes, we would end up with a rational system. But nobody is about to do that.’


The issue is more acute for criminal solicitor-advocates. Mr Bhatoa, a former barrister, has seen things from both sides. He switched from the bar as soon as solicitors were given rights of audience in 1994, so he could achieve a practice which was not dependent on clerks.


He says: ‘Those of use who are old hands don’t really care what we wear, but it is important to the younger generation because the distinction in court dress singles them out in court. We often find that judges, when they know you are not a “wigged one”, assume you must be fairly new and start to patronise you, which isn’t good for the administration of justice. We don’t want to wear wigs – but we will if it means equality.’


Grania Langdon-Down is a freelance journalist