In 2009 higher court advocacy reached its 15th year – and it is perhaps unsurprising that it endured a sustained attack from its opponents during the period.

The attack appeared to come without warning and was formed by a surprising alliance between some members of the judiciary and the Solicitors Regulation Authority. At one stage it seemed as if the SRA was acting for the bar, as it appeared determined to impose a mandatory reaccreditation scheme on solicitor-advocates without requiring a parallel scheme for barristers. I am pleased to report that this attack has been repulsed, but only after a great deal of work by both the Law Society and the Solicitors Association of Higher Court Advocates (SAHCA).

This unhappy episode raised a number of important issues concerning solicitor advocacy. These concern:

  • the role of the judiciary;
  • the role of the SRA;
  • the relationship with the bar;
  • continuing professional development of advocacy skills; and
  • the fostering of advocacy within the profession.

Role of the judiciaryThe judiciary has an interest in ensuring that advocacy skills are high and that advocates conduct themselves in a manner that is professional and in the best interests of justice. The judiciary should remain impartial and ought to expect stringent standards from both the bar and the solicitors’ profession.

Members of the judiciary should not demonstrate bias, either in favour of, or against, solicitor advocacy.

The unfortunate events of last year fuelled a common misconception among solicitor-advocates that judges are pro-bar and anti-solicitor, and that judges are more likely to side with barristers when given the opportunity to do so.

This perceived bias is unhelpful and needs to be dealt with. I know that the Law Society and SAHCA are working hard to address this. I am pleased that a number of senior judges have recently assisted with solicitor advocacy training at Chancery Lane and through SAHCA.

Any concerns a judge may have about an advocate should first be dealt with informally in the judge’s chambers. If the advocate remains unresponsive, then the judge should feel free to discuss matters with the advocate’s senior colleagues, preferably his senior partner.

Only when both avenues have been exhausted should the judge consider referring the matter to the SRA. Criticising solicitor-advocates in open court should only be considered in extreme cases, if only because it fuels the misconception of judicial bias discussed above.

The SRA does not know a great deal about advocacy. Its role is to regulate and discipline solicitors in the public interest. It has responsibilities concerned with accreditation. However, it owes its fiduciary duties to solicitors and it should not take any steps that might disadvantage solicitor-advocates in favour of barristers.

If it chooses to implement a scheme of mandatory accreditation, it should do so in collaboration with the Bar Council and to achieve parity of standards between advocates. Before it does so, it must examine the thorny issue of advocacy skills and whether and how these skills can objectively be assessed for the purposes of accreditation.

The issue of whether it is suitably qualified to do so, given its woeful representation of solicitor-advocates, is open to debate.

There is a case for solicitor-advocates being regulated by the Bar Council, given the latter’s expertise in the regulation and development of advocacy. Solicitor-advocates still remain a tiny minority within the ranks of the Law Society and SAHCA is an association which, until recently, has felt neglected by the solicitors’ profession.

A number of senior barristers have suggested that solicitor-advocates might be invited to become members of the Inns of Court. The Law Society has recently considered whether to form a fifth Inn of Court for solicitor-advocates. There is clearly a debate to be had in the area of regulation, training and accreditation, whether by the Bar Council or by the Law Society.

Professional developmentContinuing professional development of advocacy skills clearly needs to be addressed, bearing in mind concern about the skills and expertise of solicitor-advocates. I suggest, from inception, that the training of solicitor-advocates be more vocationally and therefore more advocacy-focused. Solicitors who wish to develop as advocates should be able to specialise in advocacy at an early stage in their career and preferably while on the legal practice course. Their continuing professional development should be tailored accordingly.

A model curriculum should be developed for solicitor-advocates, tailored according to experience, level of court and practice areas. SAHCA has formed a training sub-committee to consider this issue. Any constructive views on this subject can be communicated to this sub-committee.

Advocacy is a skill that needs to be developed in court, practised out of court and fostered by fellowship. Solicitor-advocates should regard highly the practice of advocacy and should seek to improve their advocacy skills by appearing in court, by undertaking advocacy training and by forming friendships with other advocates.

There is no substitute for appearing in court and for submitting to mentoring by more experienced advocates. Firms should develop policies to foster advocates (not only post-qualification but also among their trainees) and the Law Society and the SRA should develop policies to foster advocacy. Many City law firms have bred advocates but have not enabled them to develop because they have been starved of court experience.

Low self-esteemSolicitor advocacy is under pressure from many sources and in many areas suffers from low self-esteem. Many solicitor-advocates consider themselves to be discriminated against by the judiciary, disadvantaged by the bar and subject to prejudicial treatment by their own profession (who prefer simply to brief counsel). There are systematic prejudices and fundamental hurdles that need to be addressed before the practice of solicitor advocacy will become wholly accepted and widespread.

This calls for vision, drive, determination and confidence. I believe that the practice of solicitor advocacy has the potential to be extremely healthy. I consider that the Law Society and SAHCA have responded to recent difficulties in a constructive and sensible manner. The challenge now is to put solicitor advocacy on a centrist, conventional and orthodox footing within the Law Society, with the resources and the commitment needed to meet this challenge.

Tim Lawson-Cruttenden is immediate past chairman of the Solicitors Association of Higher Court Advocates. The views expressed are personal and not those of the SAHCA