Solicitors with higher rights of audience are increasing their share of the advocacy pie and securing parity of esteem with barristers.
Solicitor-advocates are a relatively new breed of lawyer. Solicitors first acquired rights of audience in the higher courts in 1994, but it was not until after Lord Carter of Cole’s review of publicly funded legal services in 2006 that they began to consider the advantages of keeping advocacy in-house, representing clients in the Crown court instead of outsourcing the job to barristers.
Lord Carter’s review paved the way for a fixed fee to cover all defence costs, including advocacy. Andrew Bishop, a solicitor-advocate and managing partner at Bishop & Light Solicitors in Hove, says: ‘It became financially more attractive to practise as a higher-court advocate, so more solicitors started doing Crown court advocacy.’
According to a recent report on criminal advocacy by Sir Bill Jeffrey, there has been ‘a marked shift’ in the distribution of advocacy work in the Crown court away from the bar, with ‘many more solicitor-advocates than there were in the years following the liberalisation of the rights of audience’. Between 2005/06 and 2012/13, the percentage of publicly funded cases in which the defence was conducted by a solicitor-advocate rose from 4% to 24% of contested trials, and from 6% to 40% of guilty pleas. Both statistics are ‘on a rising trend’.
If solicitors with higher rights of audience are rapidly increasing their share of the advocacy pie, they have also improved their standing among both judges and clients. And to dispel any remaining doubts about their advocacy excellence, solicitor-advocates are now on a mission to boost the number of silks in their ranks.
Some believe their advance may ultimately end the divide between solicitors and barristers. ‘It will become a meaningless distinction,’ says William Richmond-Coggan, a solicitor-advocate and partner at Pitmans. ‘Even if the formal distinction is preserved, the fairly imminent reality is going to be that there is in essence a single profession performing a range of specialist services.’
Richmond-Coggan echoes the bold predictions of Veale Wasbrough Vizards partner Yvonne Spencer, immediate past chair of the Solicitors’ Association of Higher Courts Advocates (SAHCA). She told the organisation’s annual conference in 2012 that ‘within a short period of time we will start to see the distinction [between barristers and solicitors] become more a matter of tribal culture than function’.
Civil v criminal
Although growing in number, there are still relatively few solicitor-advocates: the most recent SRA statistics show 6,426 of the 129,552 practising solicitors in England and Wales. By comparison, there are more than 15,000 practising barristers.
Solicitors can qualify to represent clients in the criminal courts, civil courts or both. Owing in part to cost pressures, most solicitor-advocates are practising criminal advocacy.
Cuts to legal aid for criminal cases have led to a shortage of barristers prepared to do the work, while firms are trying to stretch budgets by saving on the costs of instructing counsel. With further reductions in criminal legal aid rates, some argue that the large difference in numbers between criminal and civil solicitor-advocates will persist. ‘The opportunities for criminal solicitor-advocates are going to continue to exist for the time being, so I don’t see that gap closing,’ says Richard Pike, a partner and solicitor-advocate at US firm Constantine Cannon.
Shawn Williams, chair of SAHCA, says: ‘With the extension of the role of the county court and alternative dispute resolution, it has become less necessary for civil practitioners to have a higher-court certificate.’ To conduct mediation, solicitors do not require higher rights of audience, and to date, the need to practise in the High Court has been relatively limited.
But in civil litigation, too, owing to similar financial pressures, solicitors now have greater incentives to represent clients directly before the higher courts. ‘We are getting more solicitors coming to SAHCA, looking for training and specific guidance on how to practise in the civil courts,’ says Richmond-Coggan, one of the association’s officers.
‘Historically, the commercial incentives and pressures were much earlier on the criminal side than they were on the civil side. But that is changing,’ he says, pointing to Lord Justice Jackson’s recent reforms of civil litigation funding and costs. For example, success fees are no longer recoverable from the losing side, and the winning party has to pay the uplifted fee out of the damages recovered. Clients are now looking for ‘different fee arrangements’ such as fixed fees, Richmond-Coggan says. ‘Also, as contingency fees come more into play, civil litigators are thinking more carefully about how the fees they generate on cases are being split between them and counsel.’
Contingency fees, or damages-based agreements for contentious work, were given the green light on 1 April 2013. Solicitors can conduct litigation and arbitration in return for a share of any damages.
The in-house option brings benefits for firms and clients. The firm retains all the fees it generates in a case; clients receive a ‘cradle to grave service’, while saving on time and costs.
For example, acting for the insolvency practitioner in a recent bankruptcy case, Richmond-Coggan was instructed to obtain an emergency injunction to restrain the disposal of certain assets. ‘Time was very much of the essence,’ he says. ‘There was time saved by their [clients] only having to brief one lawyer, rather than having to instruct the solicitor and then the solicitor instruct the barrister.’ Furthermore, by saving on counsel fees, ‘the trustee in bankruptcy got a better return’, he says.
There are other pluses. DWF solicitor-advocate Rebecca Reynolds, who represents commercial clients in the insurance and rail industries, says: ‘The solicitor with overall conduct of the file is highly influential in the choice of advocate because clients are prepared to trust their judgement. It can be extremely beneficial to have a solicitor-advocate on the case for client and case familiarity.’
Nicola Antoniou, a consultant solicitor-advocate specialising in criminal defence work for Sonn Macmillan Walker, successfully represented a client from the police station to the Court of Appeal. Throughout the various stages of the criminal process the client was informed that he could have an advocate of his choice, but each time he chose Antoniou. ‘He was a longstanding client of SMW,’ she says. ‘He knew I was familiar with his previous history, his outstanding and ongoing matters.’
Solicitor-advocates are not always appropriate, however.
‘If a case involves a specialist area I am not an expert in, it’s going to be much more cost-effective for the client to instruct counsel to do that day-in, day-out,’ says Richmond-Coggan.
Eleanor Scarlett, a solicitor at Sonn Macmillan Walker, says: ‘In cases of serious sexual offences we do not use in-house solicitor-advocates because it is quite a niche area. There is still recognition that, for serious matters, someone from the bar is more appropriate because they have more experience.’
A question of perception
But, despite this important caveat, solicitor-advocates are attaining parity of esteem with barristers.
‘I have experienced judicial partiality and condescension on a few occasions, but I do find that is happening less and less,’ Richmond-Coggan, who practises advocacy in the High Court and Court of Appeal, relates. ‘Increasingly, I don’t get that sort of raised eyebrow or surprise that I used to encounter. [Solicitor-advocate] certainly seems to be a concept that is penetrating the realms of the court system.’ This is partly because the Law Society’s Advocacy Section and SAHCA are raising awareness that ‘solicitor-advocates are out there doing good work, and want to be treated on a level playing field with the bar’, he says.
‘Judges’ attitude towards solicitor-advocates has improved, without a doubt,’ adds Bishop, who practises advocacy in Sussex where judges ‘are pretty good and on the whole fair. But colleagues around the country say that they perceive a bit of discrimination or bad attitude. Obviously, most judges are former barristers’.
For Williams, who became one of the country’s first solicitor-advocates in April 1994 and has appeared before the Supreme Court, it all comes down to professionalism – or lack of it. ‘If you do your job competently and efficiently, any misguided fear that a judge may have had about a particular advocate appearing in front of them quickly dissipates,’ he says. That said, SAHCA takes concerns raised by members about any particular judge seriously and will take ‘such steps as we are [reasonably able] to make sure our members are protected’.
During his visits to Crown court centres, Jeffrey found a ‘level of disquiet about standards among judges’, including advocates with long experience as solicitors. Whether it be barristers or solicitor-advocates, judges reported that ‘standards had in general declined’ and that ‘it was not uncommon for advocates (for both the prosecution and the defence) to be operating beyond their level of competence.’
Jeffrey highlighted ‘the disparity in mandatory training requirements’ between solicitors and barristers. A barrister must complete 120 days of advocacy training before appearing in court, while a solicitor can appear in the Crown court after just 22 hours of training.
The Law Society’s director of policy, Mark Stobbs, says the Society ‘would like to see more evidence’ that the training for solicitor-advocates is inadequate. Solicitors qualify as higher-courts advocates by way of assessment, and there is no mandatory training or experience criteria.
But Stobbs says: ‘Barristers’ training is aimed at creating a fully fledged higher-courts advocate in as short a period as possible. In practice, most solicitor higher-courts advocates will have been practising in the magistrates’ courts for some time and will have had significantly greater on-the-job experience than most barristers in their early years.’
For Bishop, the training of solicitor-advocates needs to be improved, but he argues the main shortcomings are not in the Legal Practice Course or the training contract. It is the ongoing, post-qualification system of training available to, and required of, solicitor-advocates that is ‘far less mature’ than it is for barristers. ‘There are not as many good courses and as many good training opportunities as there are at the bar,’ he says. ‘What I would like to see is the Inns of Court welcome us into their training.’
Post-qualification continuing professional development requirements are more demanding of barristers, Jeffrey argues. One of his recommendations is that the profession works together, with the regulators, to develop common minimum expectations for CPD for advocates in the Crown court.
Solicitors have to complete 16 hours of CPD per year, but in February the Solicitors Regulation Authority proposed an overhaul of CPD, in its ‘Training for Tomorrow: A new approach to continuing competence’ consultation (see insert). The SRA describes the current approach to CPD as a ‘tick-box’ exercise with no real focus on the quality or appropriateness of the professional development undertaken.
Williams says that requiring solicitors only to undertake CPD courses that are specific to their field of expertise would be ‘a highly cost-effective’ way of ensuring that solicitor-advocates are kept up to date with developments while learning relevant new skills.
He adds: ‘There is a lot that can be done between the branches of the profession to ensure a common delivery of high-quality courses, so that there can be no criticism from anybody that if you are attending a particular course it is less valid than a course that is being provided, say, by the bar.’ Williams says he is ‘very anxious’ to explore, together with the Advocacy Training Council and the Council of the Inns of Court, ways of ensuring that the highest possible quality standards are achieved and maintained.
Jeffrey said the profession could build a ‘common approach’ to CPD training on ‘the excellent work’ done by SAHCA, which offers courses on criminal trial and civil advocacy, the Advocacy Training Council and the Law Society’s Advocacy Section.
QASA – the tsunami defence
To address concerns about standards, the Quality Assurance Scheme for Advocates (QASA) launched in September 2013, but its introduction has been repeatedly delayed. The controversial scheme, developed jointly by the Bar Standards Board, the SRA and ILEX Professional Standards, has been suspended pending an appeal of the High Court’s decision to dismiss a judicial review by members of the Criminal Bar Association. The Court of Appeal’s decision is expected in October.
The criminal advocacy accreditation scheme is seen as a sledgehammer to crack a nut or, as Williams puts it, ‘akin to building a tsunami defence around Alice Springs’, the famed outback town in the middle of Australia.
‘There has been no real research or evidence about advocacy standards and whether they have risen or fallen in recent years,’ says the Law Society’s Stobbs. ‘We are concerned that the number of assessments will place a considerable burden on the judiciary and that there will be tensions between an advocate’s duty to his or her client and the wish to ensure that the assessment goes well.
‘We do not think it is appropriate for judges to have this role,’ he concludes.
For Williams, QASA is ‘wholly unnecessary. We feel that it is inappropriate to impose a new regulatory system on the basis of anecdotal evidence. Where is this queue of people who are apparently beating a path to the door of the regulators to complain about poor quality advocacy? There is no such queue of people that we were able to ascertain’.
For those who occasionally appear in the criminal courts for corporate or commercial clients, the scheme could prove particularly restrictive. Spencer says: ‘A privately paying corporate or commercial client knows the quality and specialist expertise of the advocate they instruct. Market forces based on strong commercial relationships between the client and their lawyer should be the determinant of consumer choice for privately paying clients.’
Thanks to lobbying, solicitors who only undertake non-trial (or plea-only) hearings will be permitted to become accredited under QASA, subject to a review after two years. The Criminal Bar Association has opposed the creation of plea-only advocates who have no trial experience and are only able to enter guilty pleas. But Bishop says: ‘There is a very different skill-set involved in conducting trials and conducting pleas and mitigation. Solicitors on the whole are pretty good at pleas and mitigation, and there is in my view no reason why you cannot be an advocate who chooses not to do trials.’
To be able to make a good application for silk you need to be spending an awful lot of time in court, such that you are going to get the references from judges… I don’t think there are many solicitors out there at the level who could apply for silk
Richard Pike, Constantine Cannon
When it comes to the award of the ultimate badge of quality, barristers still have a clear advantage over solicitor-advocates.
Of 100 new silk appointments in 2014, five were solicitor-advocates, of the seven who applied. This is a significant increase on 2012/13, when only one solicitor-advocate was appointed, but the proportion remains very low.
For some, it is only a question of time before solicitor-advocates catch up with barristers. ‘It takes probably about 20 years’ experience of trial advocacy before you are likely to apply for silk, and solicitor-advocacy is still relatively in its infancy,’ Bishop says.
However, there are some genuine challenges. ‘There aren’t many solicitors who really make their living doing a lot of advocacy day to day. To be able to make a good application for silk you need to be spending an awful lot of time in court, such that you are going to get the references from judges,’ says Pike, who adds: ‘I don’t think there are many solicitors out there at the level who could apply for silk.’
Andrew Hopper QC, who was the fifth solicitor to be appointed QC, in 2001, says: ‘Most solicitor-advocates undertake criminal advocacy and they find it difficult to get the exposure they need to obtain approval and support from the senior judiciary.’ Most solicitors appearing in the Crown court, for example, only encounter recorders and circuit judges, he says. ‘I was very fortunate in that I appeared on a regular basis before very senior judges. In those days it was about being noticed – noticed by the right people – and being noticed while not messing up. Although the system has changed, the principle holds good.’
Hopper says of the present system for appointing silks: ‘My impression is that it is very burdensome and in itself off-putting.’ He argues that the selection criteria are very stringent, particularly for solicitor-advocates who may not get the chance to show what they are capable of. ‘You may be an exceptional advocate but you can easily be overlooked unless you are given the opportunity to demonstrate your skills, and to do so with sufficient frequency,’ he says. ‘Working in a specialist environment or on high-profile cases can set you apart from the crowd.’
Noting the broader range of work typically carried out by solicitor-advocates compared to bar colleagues of equivalent seniority, Richmond-Coggan argues that it is more difficult to assemble a portfolio of relevant court work. But he points to the increasing role of ADR and well-drafted pleadings, which will help settle a case, adding: ‘The application process requires a significant amount of courtroom advocacy, but this is only one part of modern advocacy and to some extent a decreasing part of it.’
The Queen’s Counsel Selection Panel requires judicial references for ‘12 important cases’ covering the last two years of advocacy, but says it accepts cases that have been resolved by mediation and a mediation practitioner reference for them, ‘provided that sufficient evidence can be derived from them to demonstrate excellence’.
Williams says that SAHCA is looking at this issue ‘carefully’ and recently met the selection panel to ‘see whether steps can be taken to encourage more applications from solicitors’, SAHCA will be reporting its findings to members in the autumn.
Spencer suggests emulating the ‘great work’ of the Judicial Appointments Commission, which holds roadshows and other events to encourage applications from would-be judges. ‘Such similar events could improve awareness of the QC application process, so that more solicitor-advocates feel more confident and are empowered to make an application,’ she says.
That kind of encouragement should make the difference, because, as Richmond-Coggan argues, the evidence is that the potential is there: ‘If you can see that at the top level solicitor-advocates are regularly being made silk, that implies that there is a pool of talented juniors coming up through the ranks. This would also ensure that any lingering prejudices against solicitor-advocates are swept away.’
A fused profession?
In many parts of the world, including continental Europe and the US, there is a fused profession.
Pike says: ‘My colleagues in the US are always saying, why are we paying the barristers? Why aren’t we just doing it ourselves? If I can save cash by doing the advocacy myself, that is something that I will have to seriously consider.’
If the line between barristers and solicitors appears ever more blurred, it is also true that this cuts both ways. Barristers can now bypass solicitors and offer their services to the public through direct access. ‘I have come across a fair number of situations where clients are just using barristers and not solicitors,’ Pike observes.
The dividing line between barristers and solicitors is unlikely to disappear soon, but in an increasingly tough market where supply outstrips demand, the pressures in that direction may continue to grow. More cuts to criminal legal aid are planned, while the number of duty legal aid contracts for solicitors to cover police stations and magistrates’ courts are set to be reduced through a new tender process.
As Jeffrey said: ‘There is substantially less work for advocates to do.’
129,552 practising solicitors
52% of solicitor-advocates are criminal courts-qualified
24% of solicitor-advocates are civil courts-qualified
24% of solicitor-advocates are qualified for both courts
15,000 practising barristers
Marialuisa Taddia is a freelance journalist