A higher calling

WHY do SOLICITOR-ADVOCATES appear so RELUCTANT TO TAKE UP THEIRhard-won RIGHTS IN CRIMINAL COURTS? LUCY HICKMAN DISCOVERS THAT THE FEE STRUCTURE AND WORKLOAD MAY BE TURN-OFFS This months silk round, in which just one out of 12 solicitor applicants gained the coveted status, exacerbated an existing anomaly for criminal solicitor-advocates.

For while two-thirds of solicitor-advocates are qualified to practise in the criminal courts, none of the five existing solicitor QCs City lawyers Lawrence Collins, Arthur Marriott, Mark Clough and David Mackie and now mid-Glamorgan practitioner Andrew Hooper does so.

And with top City firms announcing major programmes to train all their litigators in advocacy, it tends to be civil practitioners who have the higher profile.

Since implementation of section 31 of the Access to Justice Act 1999 last October, solicitors have acquired rights of audience in every court in the country.

Some rights preliminary hearings in the Crown Court, for example are exercisable immediately, while others, such as Crown Court trials, require special qualifications dictated by the Law Society.

Solicitors have, of course, been allowed to qualify as higher court advocates since 1994 when the Courts and Legal Services Act 1990 was finally brought into force, again only after compliance with Law Society requirements.

Jo Cooper, a criminal law solicitor-advocate at north London solicitors chambers Alverstone Chambers, which specialises in higher court advocacy, insists that the new rules are more than just a change of wording.Before, you could only get higher court rights if you jumped through hoops and on the surface, it looks like you still have to jump through hoops.

But the hoops have changed substantially.

Its much less intensive and more supportive and is designed to actively develop advocacy.It means people can develop as advocates early in their careers not as I did through becoming a magistrates court trial specialist.

I did probably 2,000 magistrates court trials before I did my first jury trial.

It would have been better for my career if I could have done one earlier.

There are several different routes to acquiring higher rights: exemption, primarily for those who have advocacy skills in higher courts; accreditation, usually used by solicitors with litigation skills in higher courts; development, mainly for those without the necessary experience to go through the other routes; and the former barrister route.

Yet despite the change in rules, making it easier and cheaper for solicitors to practise in the higher courts, there are only 1,141 solicitor-advocates 776 of them practising criminal law a rise of only 161 since the end of 1999.

Michael Caplan, a partner at London law firm Kingsley Napley, who famously acted for the Chilean dictator General Pinochet, and vice-chairman of the Solicitors Association of Higher Court Advocates (SAHCA), says: We are surprised that there arent more people taking up these rights.

But these things take time.

We have only had solicitor-advocates for a few years.

We will see an increase because it has reached a stage where a solicitor-advocate is accepted in all higher courts.

Because of that, more large firms are ready to train lawyers as advocates.Surrey sole practitioner Lionel Blackman, who last year became the first solicitor-advocate to win a case as lead counsel in the House of Lords, says the reason why there are only five solicitor-advocate silks one of whom spent much of his career as a barrister is probably that most do not have enough experience, says Mr Blackman.Solicitors havent had these rights for very long and there are probably not enough with sufficient experience.

Existing QCs have been earning their stripes for many years.

We cant jump the queue.

After I won my House of Lords case, people told me I should apply but I dont want to and wouldnt know how to.

Mr Cooper says: This year sees the first cohort of solicitors who can adopt these extended rights.

There are now compulsory courses in advocacy for trainees, and the new regime envisages solicitors being able to exercise their extended rights from six-months qualified.Joanna Lyons, another solicitor-advocate at Alvestone Chambers, says: Most solicitors dont take up these rights its extraordinary.

Mind you, running a big caseload and doing a trial for four or five days is difficult to combine.

If youre a partner its not so bad because you have people to run your caseload for you but for an assistant, you dont have a life basically.

Mr Blackman says some solicitors, even after acquiring the extended rights, do not exercise them.

When these rights first came about, many senior members of the profession thought lets add that qualification without any real intention of exercising it.

It created a lot of tension with people who wanted to get on with the job and demonstrate usage of the skills.

The rule preventing solicitor-advocates from wearing wigs in the higher courts can be a turn-off, says Mr Cooper.

I dont mind if we all wear wigs, or none of us do, but it is a concern for new higher court advocates who feel they are discriminated against.It is difficult to see what role a horse-hair wig has in the 21st century, but I am more concerned about it deterring young solicitors from exercising their rights.

Barrister-turned-solicitor Brian Kennedy sent a petition to the Lord Chancellor, Lord Irvine, this year, calling for solicitor-advocates to wear wigs for this reason, citing the Human Rights Act 1998.

Traditionally, solicitor-advocates have also complained they are not treated with the same respect by Crown Court judges.

Mr Blackman says he has had some cheap remarks from some judges because he is a solicitor, but says is was not an issue in the Lords.

There, it is the argument that matters not who is arguing.Ms Lyons, who is SAHCAs treasurer, says: It used to be a real problem when I started in 1995.

I used to get regularly undermined by the judges because I was a solicitor they used to assume I didnt know what I was doing.

I was made to feel like a second-class citizen.

You still get that sort of attitude out of London but there are so many solicitors appearing in court that they cant get away with it now.Ron Birkett, a partner at Nottingham firm Cartwright King whose most high-profile case thus far was defending actor James Hooton (Sam Dingle in the ITV soap Emmerdale), who was cleared of grievous bodily harm says solicitor-advocates have many advantages over counsel.

I can deal with a case from the police station to the House of Lords if necessary it gives continuity.

I have a relationship with the clients and they dont have to struggle to get to know someone else.

However, Mr Caplan adds that the criminal Bar has little to fear from solicitor-advocates.

We will always need a strong, competent Bar.

There are many, many times that someone needs to be represented by a senior advocate and at the moment that comes from the Bar.

There is a more negative aspect to the ambitions of solicitor-advocates.

One criminal solicitor-advocate, who asks not to be named, says that with less people being charged at police station level, turnover at magistrates courts falling year on year for the last three years, and the inconsistency of the graduated fee system, prospective criminal solicitor-advocates might want to reconsider their chosen field.

A lot of routine criminal work is going down the toilet and the money is so terrible for certain Crown Court work.

If you have a trial, you could have one conference, put in two days preparation, but if your client doesnt turn up in court, you only get 45 it doesnt cover the cost of travel.

Its ridiculous, you are paid more to attend the police station than you are to appear in the Court of Appeal.He continues: The fee structure makes no sense; you get penalised for doing a good job.

And when the new system is introduced in the next year or so, whereby solicitors get control of the budget and decide how much they pay an advocate instead of the court, the whole system could come to a grinding halt.

People want volume, not quality.

Ms Lyons says: Very large cases do pay, but the problem for solicitor-advocates in criminal firms is that it is often not cost effective.

You might as well have them in the office working on files and building up billable hours than have them in court.

Mr Cooper adds: Theres still plenty of work for us because we have a good relationship with the solicitors who instruct us, but work for criminal advocates as a whole might be going down.

It might be to do with charging decisions at the police station the workload is going down at the police station and magistrates courts level.He says the restrictions on the right to trial by jury in either-way cases will als0o have a significant effect on the total Crown Court workload.He concludes: For people doing criminal advocacy there are issues about what sort of places the magistrates court and the Crown Court are going to be in five years time.Lucy Hickman is a freelancejournalist