Despite being equipped with the necessary skills, why do solicitors account for only 40% of judges? Grania Langdon-Down talks to five practitioners who have taken up judicial roles

Solicitors account for about 84% of the 72,000 lawyers who are eligible for judicial appointments, but for only about 40% of judges, with the vast majority in the role of deputy district judges or district judges, and very few higher up the judicial hierarchy.


So why do solicitors so rarely apply in anything like those proportions in competitions for judicial office, particularly at senior levels? ‘Too often, it is because we see the advertisements and think “that doesn’t mean us”’, says Judith Gleeson, a former employment law specialist and general litigator who has sat as a judge since 1993, first part-time and now full-time as a senior immigration judge. ‘But there are all sorts of benefits – not least in the way it sharpens your mind. And, even if you never go further than a part-time judicial post, you will be a much, much better practitioner as a result.’


Such is the drive to open the judiciary to a wider pool of people, that the Department for Constitutional Affairs (DCA) has launched a huge campaign to recruit solicitors to the bench. It has written to 6,500 solicitors to make them aware of the opportunities available for those who have held rights of audience for seven years, and therefore now qualify to apply (see [2005] Gazette, 3 November 4). While stressing that merit remains sacrosanct, the Lord Chancellor, Lord Falconer, says he does not ‘buy’ the argument that a ‘trickle-up’ approach will be enough. ‘The eligible pool doesn’t reflect society. So we need to widen the pool by bringing in new groups who have the skills we need,’ he says.

This has prompted the DCA to produce proposals to make the job more attractive, including career breaks for salaried judges; a change in the rules to allow judges to return to legal practice, even allowing them to advertise themselves as ‘former judges’; letting solicitors build up continuing professional development points when shadowing a judge; and a pilot scheme for circuit judges to mentor district judges, to support those who want to move to higher ranks.


The DCA has also commissioned research into why eligible female and ethnic minority lawyers do not apply for judicial appointment. They make up 20% and less than 5% respectively of the bench, far lower than their representation in the profession, which itself is lower than in the population as a whole.


Solicitors do dominate at district judge level. They account for 405 out of 434 district judges and 669 of the 796 deputy district judges in the civil courts, and 86 out of 129 district judges and 106 out of 167 deputy district judges in the magistrates’ courts. But they are far rarer at more senior levels. There are only 128 solicitors out of 1,417 recorders, 87 of 624 circuit judges, and only two of 108 High Court judges are solicitors.


Ms Gleeson initially sat as a part-time judge in the employment tribunal. She juggled that with her practice at Surrey law firm Hedleys for two years. However, with a young son, she decided to retire from practice and pursue two part-time judicial posts before becoming a full-time judge when her son started school. ‘My first judicial appointment came about because someone said to me “it is time you did your bit for the community”; otherwise it would never have occurred to me. I went to the interview thinking I had no chance, and was surprised and delighted when they appointed me.’


Judicial posts have traditionally been seen as the preserve of barristers. But solicitors are no less well equipped than members of the bar to be judges, Ms Gleeson maintains. ‘To be a good judge, you need absolute integrity, and clarity in what you do, say and write. You need to keep control of the courtroom and behave in a way which is obviously fair – but these are things solicitors are trained to do anyway.’


Fiona Read, a partner and head of the family department at Russell-Cooke’s office in south-west London, agrees. She has been sitting as a part-time district judge in the county courts in Surrey and London since April. ‘I think barristers are fantastically good at putting forward their clients’ cases in lovely, prejudicial language, but they are sometimes not as practical as solicitors. While solicitors may feel they don’t have as much actual courtroom experience, they are very good at dealing with people, whereas barristers can sometimes be a little bit more aloof.’


When it comes to skills, Michael Caplan QC, one of only eight solicitor silks, identifies the ability to listen, fairness, courtesy and patience as prerequisites. A specialist in international crime and regulatory work at City firm Kingsley Napley, Mr Caplan sits as a recorder assigned to the south- eastern circuit. He says: ‘It is much harder work than anyone thinks. It is a tremendous responsibility, but there is never a dull moment and it adds an additional dimension to your practice.’


The main difficulty for solicitors is fitting the required number of days’ sitting – generally a minimum of 15 days a year – into a busy practice. However, Mr Caplan has only had to change his sitting dates twice in 12 years – once when he was in the House of Lords with the Pinochet case, and once when a complex fraud case overran.


Andrew Greensmith, vice-chairman of Resolution, is a partner in the family department of Preston law firm Dickson Haslam. He was appointed as a deputy district judge on the northern circuit in 1997. He sits about 30 days a year. ‘I manage that by juggling, a lot of delegation, and very careful diary management.’


It also helps, he says, to have understanding partners, because the remuneration is not compensatory for the level of fee income lost as a result of sitting.


The DCA’s consultation paper on increasing diversity in the judiciary says some solicitors have reportedly been forced by their firms to choose between partnership and applying for fee-paid judicial office.


Val Davies, a commercial litigation partner with top-ten City firm Norton Rose, started as an assistant recorder in crime in 1997, before being made an assistant recorder in civil in 1999 and a recorder in both in 2000. She says: ‘Some firms are not keen on it, and I think that has deterred certain people from applying. But having a part-time judicial post is not an indication that you are not committed to the firm – it is a way of improving your skill sets.’


Ms Davies sits on the Wales and Chester circuit for about 15 days a year. ‘As to fee-earning, I am expected to perform as I did before. But, with BlackBerrys and laptops, communication is much improved so it is easier to keep in touch. My department is also very supportive. You do your training with circuit judges, High Court and appeal court judges, which gives you an insight into how judges approach issues, and I hope I pass that on to my colleagues.’


As one solicitor puts it, the pressures on those combining a judicial appointment with their practice depends on how ‘greedy’ the firm is. Ms Read says that ‘practices will have to accept there is going to be a decline in the amount people can bill’. In my case, there was no problem about my undertaking the work, but there are no allowances for it, so I have to meet the same financial targets. But one way that can be compensated for is that deputies are paid a small amount, and that can be taken into account in relation to the expenses for the firm.’


She also reckons there is quite a bit in it for the firm. ‘I am one of two deputy district judges in our firm. It is good for the firm’s profile. Clients appreciate it and it does add a bit of gravitas.’


All five solicitor judges interviewed think it would be a sensible move if the Lord Chancellor allowed judges below High Court level to return to practice. However, the Judges Council warned in its response to the DCA’s consultation paper that it could be seen to ‘undermine judicial independence’.


Ms Gleeson says: ‘I remember feeling when I was appointed full-time that it was a life-changing decision, because I had to decide that my career as a solicitor was over. In other countries, people move between the judiciary and private practice without any catastrophic effects on the nature of justice, so I can’t see why it shouldn’t work here.’


Mr Greensmith agrees: ‘I can’t see any reason why full-time judges shouldn’t return to practice, given that solicitors can combine practising with sitting part-time. It would add a degree of flexibility, because the commitment of taking on an appointment for life might be daunting for some people at an early stage in their career.’


Ms Read also welcomes the idea, though she adds wryly: ‘Why someone would want to return once they have got out of the rigmarole of having a busy practice is another matter.’


One suggestion in the DCA’s consultation paper is that part-time appointments should be for a maximum of 15 years. Ms Davies explains: ‘At one stage, there were a lot of people who were more senior, but had not attained full-time status, and were clogging up the list so there weren’t vacancies to bring in new deputy district judges or recorders.’


For Mr Greensmith, one useful development would be to create a system that enabled solicitors to sit in a judicial capacity in the area in which they specialise. ‘For the last six years, I have specialised in family work but, as a deputy district judge, I have to deal with all types of civil litigation, which means taking extra steps to keep up with those areas of law.’


However, despite the hard work and extra hours, all recommend a judicial role. Ms Gleeson says women solicitors in particular do not appreciate what a good option a judicial career can be. ‘Unlike being in practice, there is no hierarchy. If you are unwell, someone else picks up your list. When I go on holiday, I no longer ring the office twice a day. I work very hard, but it is a much more rational working life and much less crisis-ridden. Plus, you get back to why I, at least, came into the law – working out the right answer to a particular problem.’


Grania Langdon-Down is a freelance journalist