SOLICITOR ADVOCATES: THE FACTSOn 18 September 1998:-- the total number of higher courts qualifications awarded to solicitors was 689;-- the number of solicitors qualified for all proceedings was 123;-- the number of solicitors qualified for criminal proceedings was 428;-- the number of solicitors qualified for civil proceedings was 138.ROBERT VERKAIK CONSIDERS THE LAW SOCIETY'S POSITIVE RESPONSE TO THE CONSULTATION AND THE BAR COUNCIL'S CRITICISMS OF ITS PROPOSALSSUMMARY: 'RIGHTS OF AUDIENCE AND RIGHTS TO CONDUCT LITIGATION IN ENGLAND AND WALES: THE WAY AHEAD'-- On call to the Bar, or on admission to the Roll, barristers and solicitors will acquire full rights of audience before all courts, which they may exercise subject to their meeting any additional training requirements imposed by their respective professional bodies.-- The Bar Council and the Law Society may make different rules for private practice and employed lawyers in respect of their new rights.-- Once a barrister or solicitor has gained rights of audience before a particular court he will retain those rights even if he moves from one branch of the profession to the other, or from employment to private practice or vice versa.-- The Lord Chancellor will be able to 'call in' a professional bodies' rule for scrutiny on the grounds that it unduly restricts the exercise of rights of audience.

This may be because the rule is too strict or too lax.

Once a rule is called in the professional body concerned will have a period of three months in which to justify it or suggest a replacement.

The Lord Chancellor will consult the designated judges; if he is not satisfied that the rule should be retained, and concludes that the suggested replacement (if any) is unacceptable, he may substitute a rule fashioned by him in consultation with the designated judges.-- The complex approval machinery set out in Schedule 4 to the 1990 Act will be simplified, and ACLEC will be abolished, but the Lord Chancellor will continue to require independent advice to carry out his role.

This advice will come from a more focused and smaller Legal Services Consultative Panel.

Decisions will be taken by the Lord Chancellor after consultation with the designated judges; he will be obliged to have regard to their advice, but they will not have a right of veto.-- There will continue to be provisions for new bodies (such as the Institute of Legal Executives) to authorise their members to appear in 'prescribed proceedings'.The Lord Chancellor, in his recent consultation paper on extended rights of audience, does not mince his words when he claims the Courts and Legal Services Act 1990 'has achieved virtually nothing' to increase the rights of audience for lawyers.Lord Irvine suggests the advocacy qualification figures speak for themselves.

Eight years on and still only about 600 solicitors out of about 75,000 have obtained their Law Society higher courts rights of audience.

In June's consultation 'Rights of audience and rights to conduct litigation in England and Wales: the way ahead' (see above), the Lord Chancellor outlined just how he intended to breathe new life into the process.

In doing so, he proposed a programme of 'radical change'.

Following additional consultation with the professions, the proposals are to be contained in the Modernisation of Justice Bill which is expected to be introduced in the next parliamentary session.

In them, it is argued that all barristers and solicitors should now acquire full rights of audience on qualification, subject to them meeting app ropriate training requirements.Last week, both the Law Society and the Bar Council officially responded to the new proposals.

The Bar Council, which has everything to lose, submitted a 50-page document while the Law Society, which has everything to gain, was happy to restrict its comments to just five pages.For the Law Society, the fight for the right to advocacy has been a long struggle in which it has faced tandem resistance from the Bar and, at times, an unsympathetic Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC).

Inevitably, the whole process has been characterised by delay.

Russell Wallman, the Law Society's head of policy and the Chancery Lane official at the forefront of the negotiations, points out that it was not until three years after the Law Society's application that the first solicitors were granted higher courts rights of audience.

It took even longer -- five years -- for a decision to be reached on employed solicitors, giving them restricted rights.

Mr Wallman describes the process as 'exceptionally cumbersome'.

The Lord Chancellor himself took great trouble to address the plight of employed solicitors in the consultation paper.

He described the Law Society's attempt to win higher court rights for this section of its membership as a 'sorry saga'.

The full history of their struggle, which the Lord Chancellor says illustrates the failure of the process first set in motion by the Courts and Legal Services Act, is set out in great detail in the paper.Solicitors will regard the proposed replacement of ACLEC by the more focused Legal Services Consultative Panel as an important step towards streamlining the advocacy rights application procedure.

Mr Wallman says ACLEC, which he describes as resembling a Royal Commission rather than a facilitation committee, is partly responsible for the 'cumbersome' nature of the current procedure.More specifically, the Law Society claims, in its response to the consultation paper, that ACLEC failed to recognise that the Bar's rules were an 'unnecessary restriction designed to preserve a near monopoly for barristers in private practice'.

The Society maintained that as a result it gave 'undue weight' to the arguments of those who opposed change.For the Bar, the abolition of ACLEC represents the beginning of the end game in the preservation of its exclusive advocacy rights.

Its 50-page response to the consultation paper is a classic piece of mitigation in which it accepts the general sweep towards greater reform and yet takes issue with almost every proposal.Says Mr Wallman: 'The Bar is now effectively arguing that unless everybody goes through a barrister's training they shouldn't have rights of audience.' A Bar spokesman countered: 'That's not true.

The Bar believes there should be a competitive market for advocacy services and that properly qualified solicitors should be advocates.' He added that the Bar supported the 'fundamental principles' of the consultation paper, but there were aspects to which the Bar was 'vigorously opposed'.The Bar Council points out that the exams solicitors must pass to obtain higher rights of audience are not too difficult but that a number of candidates have failed them.

It adds: 'There is real concern that the Law Society is coming under pressure and, in years to come, will come under increasingly severe pressure internally to relax the current requirements of training and experience to an unacceptable level.It also launches a number of counter proposals of its own.

These include an obligation placed on solicitors to advise the public of the best choice of advocates available by 'outlawing tying-in arrangements' between solicitors and solicitor-advocates working in the same firm.

It wants solicitors to make available reasons why a solicitor has chosen an in-house advocate as opposed to one from the 'independent Bar'.

And in a sideswipe at what it describes as the solicitors' own near monopoly of the right to conduct litigation, it recommends that agencies such as the Citizens Advice Bureau should also be granted rights to conduct litigation.Perhaps the only point that the Law Society and the Bar Council can agree on is the Lord Chancellor's proposals for the approval of and 'calling-in' of rules made by the two professional bodies.

Under the proposals the Lord Chancellor will no longer need the agreement of the Lord Chief Justice, the Master of the Rolls, the Vice Chancellor and the head of the Family Division -- the 'designated judges' -- for the approval of new rules and will be able to change existing rules he considers too lax or too strict in relation to the admittance of advocates to the higher courts.The Law Society argues that giving the Lord Chancellor sole authority would hamper self-regulation of the profession and the Bar claims it would dilute its independence.However, the Legal Action Group (LAG) welcomed plans to end the 'judges' veto.

Vicki Chapman, in LAG's response to the paper, wrote: 'The ultimate decision-making power should rest with the Lord Chancellor, in his capacity as a government minister, not as head of the judiciary.' The Solicitors' Association of Higher Court Advocates Association (SAHCA) is keeping out of the argument.

In its response to the consultation, it says: 'SAHCA does not believe it to be part of its function to become embroiled in a debate over whether it is the Lord Chancellor or the Master of the Rolls who should have the power to call in unjustified or anti-competitive professional rules.'NICK MURRAY FINDS OUT WHAT EFFECT THE PROPOSALS WILL HAVE ON SOLICITORS WHO HAVE ALREADY QUALIFIED AS ADVOCATESIn five or ten years time the practice of advocacy will look extremely different.Some solicitors maintain that this will mark the end of a traditional bifurcation in the legal profession, with the Bar reduced to a rump of highly specialised advocates and with most advocacy work being done by solicitors with full rights of audience.

According to this vision of the future, bright, young graduates entering the profession will no longer feel that being a barrister is the summit of ambition and status.

Firms will employ their own solicitor-advocates, either singly or grouped into specialist sections, and some will group themselves together into chambers, mirroring the current organisation of the Bar.Other solicitors believe the change will be less dramatic.

They are cautious about predicting a significant downscaling of the Bar and wonder whether many firms -- particularly small- and medium-sized firms in the high street -- will ever find the resources that would afford them the luxury of an in-house solicitor-advocate in place of the telephone call to chambers.Some changes are already taking place as a result of the existing extension of rights of audience currently available to solicitors who take the appropriate examinations.

This is not an easy or cheap process and involves several weekend courses and a great deal of application.

'The most difficult thing is to be allowed to take the examinations,' says Iain Roxborough, a solicitor-advocate at Clifford Chance.

Candidates must be able to demon strate a certain level of experience in the civil courts -- general arbitration experience is not enough.

'This hurdle is excluding many people of excellent ability,' says Mr Roxborough.Clifford Chance is typical of the large commercial firms which have seized the opportunity under the current regime to establish in-house departments of solicitor-advocates.

With no fewer than 11 solicitor advocates, when the total of qualified solicitor-advocates nationwide has only just reached 600, their 'advocacy unit' is probably the largest in the country.

However, the firm still instructs barristers when it is judged that a specialist task needs it, when no-one is available, or simply when clients prefer it.

'There will always be a need for barristers.

They will continue to thrive,' predicts Mr Roxborough.He says the growth of solicitor-advocates will be conditioned by the keenness of individual solicitors to take the work on, and consequently any change will be gradual.

Clifford Chance set up its advocacy unit because it thought this gave a better and more immediate service to clients.

It was viewed as being more efficient, combining roles formerly split between solicitor and barrister where responsibility could sometimes be lost.

By having the full range of people available the firm could offer what Iain Roxborough calls 'a complete service'.Nicholas Johnson, a solicitor-advocate at Manchester firm Glaisyers, is more convinced that the rise of the solicitor-advocate will lead to a shrinkage of the Bar.

'We live in a highly competitive world these days,' he says.

Doing the work in-house rather than sending it out to more costly barristers makes economic sense.

'One day we'll all be doing advocacy,' he predicts, adding that the Bar will be reduced to performing specialist roles.

Clients, he argues, prefer an immediate answer, so it is useful to have a designated advocate within each department.At the opposite end of the scale from the big commercial firms are the small- and medium-sized high street legal aid practices in the provinces.

Mick Walker, of Thorpes in Hereford, is less enthusiastic at the prospect of the free market in advocacy.

He sees practical problems for a smaller firm which might have all its relevant solicitors in the magistrates' court several mornings a week.

If a Crown Court case is suddenly listed, the firm can turn to a barrister -- an immediate extra pair of hands and a cool second opinion.

His firm could not carry another member of staff whose sole job was to be an in-house advocate.

'The great advantage of the present system is its flexibility,' says Mick Walker.

He makes an analogy with GPs who are allowed to do some limited forms of surgery themselves without being required to become full-time surgeons.

'We are the general practitioners of the legal profession,' he says.

Like many hard-pressed legal aid franchised firms, he sees a covert agenda of cost-cutting and reducing access to justice for the poor behind the Lord Chancellor's free market rhetoric.But there is no mistaking the passionate enthusiasm of the advocates of advocacy.

Tim Lawson-Cruttenden, a solicitor-advocate and sole principal of London- based law firm Lawson-Cruttenden & Co, claims that 'the main hurdle now lies within the ranks of the solicitors' profession', with many firms apparently reluctant to instruct or brief the 650-plus solicitor-advocates already available.

'There appears to be a feeling prevalent throughout the profession and society that solicitors are second best and that to play in the premier league you have to play at th e Bar,' he says.

In some firms, he claims solicitor-advocates are seen as 'square pegs in round holes', with their role not yet understood or granted.

'I am a free marketeer,' he declares.

He thinks it is ridiculous that a 23-year-old barrister just out out of Bar school can be considered a more able advocate than a solicitor with 20 or 30 years experience.

And although he concedes that barristers at the top of their profession are irreplaceable, he says there are some inferior lawyers whose performance in court can on occasion make him squirm with embarrassment.

He tells the story of a solicitor-advocate who was vigorously opposed to the idea of being allowed to wear a wig in court on the grounds that 'not having a wig signals that we are better'.Training and preparation are clearly going to be the key to success for solicitor-advocates who are unlikely to command the stage immediately.

Mr Roxborough advises them to start getting practice in doing pleadings now.

Kerry Macgill, chairman of the Solicitors' Association of Higher Court Advocates, which has more than half the current total of solicitor-advocates in membership, says that training is the key and is currently trying to persuade the Law Society to enshrine advocacy skills in basic legal training.

Quality control will be more rigorous in future with legal aid franchising and higher standards will be expected of the new advocates.With or without wigs, the new breed of solicitor-advocate is set to dominate the future of the law whose traditional demarcations, hierarchies and notions of status are scheduled for a radical shake-up in the next few years.STEPHEN WARD LOOKS AT HOW THE PROPOSED CHANGES WOULD AFFECT SOLICITORS IN THE CPS, INDUSTRY AND LOCAL GOVERNMENTSolicitors deal in logic and rational argument.

This is why they see the current restrictions on rights of audience for employed lawyers as, in the words of the solicitor advocates' leader, Kerry Macgill, 'a nonsense'.

Mr Macgill, chairman of Solicitors Association of Higher Court Advocates, asks: 'How can it be justified that when Dame Barbara Mills, a leading QC, becomes head of the Crown Prosecution Service (CPS), then overnight she loses her rights of audience?'.

It is the principle of fair play as much as the immediate desire to change day-to-day practice which is driving the impassioned and universally supportive responses from the various employed solicitors' groups.Peter Lewis, head of the Crown Prosecution Service's casework division, who has primary responsibility for rights of audience issues, is clearly frustrated by the years of procedural delays imposed by the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC), the Bar Council in particular, but also by the Law Society, and welcomes the new robust approach from Lord Irvine.

'We've been as disappointed and frustrated as anybody about the lack of progress since 1990,' he says.In the eight years since the Courts and Legal Services Act, a handful of solicitors have gained limited rights of audience, to act as juniors but not leaders, and employed barristers have not benefited at all.

In practical terms, the CPS maintains the first tangible results of the proposed changes will be to remove that anomaly, and to give employed barristers at least the same rights as employed solicitors.

'The ability to field our advocates in court particularly to provide some continuity through plea and direction hearings and on to actual hearings would be beneficial in some cases,' says Mr Lewis.

'It would help us to streamline processes and be a far simpler and more cohesive way of handling cases.'As recently as this summer, the Bar Council's annual meeting was told by the current chairman, Heather Hallett QC, that any extension of rights of audience to CPS lawyers 'would substantially undermine the role of the independent advocate in the prosecution process'.

The CPS welcomes the clear statement by the Lord Chancellor's Department in the consultation paper that independence would not be jeopardised by extending rights to employed barristers.

Mr Lewis says: 'We are independent prosecutors, charged by Parliament to be independent.

We make independent judgements.

All these cases remain ours even after we've instructed independent counsel.' The CPS says the changes would help it to recruit and retain high quality lawyers, both solicitors and barristers.Mr Lewis says the CPS makes no distinction between the two.

'We will be able to say to people that if they come to work for us, they can have the opportunity to deal with a rich caseload, and be able to appear at all levels -- subject of course to their competence and experience, ' he says.The CPS also recognises it must demonstrate beyond argument that its lawyers are good enough to appear in the High Court.

'The fact that you're seen in court by judges in a professional capacity rather than as a distant voice instructing counsel, and seen to be dealing competently and professionally with cases actually enhances the reputation of the service,' says Mr Lewis.

The CPS is proud of the fact that at the start of this year, all its solicitors who sat the Law Society advocacy examinations passed.But at the moment, the service cannot foresee that it would be efficient or make economic sense to take the bulk of its higher court work in-house.

Many of the 100 CPS solicitors who have secured higher court rights of audience are known to be disgruntled that they have been given little opportunity to exercise those rights.

According to Mr Lewis there is no intention to undermine the independent Bar.

'I seriously doubt we will ever have the resources to cover every court in this country,' he says.

'We will continue to make use of the flexibility, experience and competence of the independent Bar.' In the longer term he envisages greater use of outside solicitor advocates.

Employed solicitors in industry and commerce similarly expect no dramatic diminution in the use of the independent Bar to follow the extension of rights of audience.Paul Gilbert, head of the legal department at the Cheltenham & Gloucester Building Society, and chairman of the Law Society's industry and commerce group, says companies would decide whether to hire independent advocates on economic grounds.

'It ties up a lot of time and resources, and it will often be better use of the in-house lawyer's time to leave advocacy to somebody else,' he says.That decision will become another factor in the commercial equation facing companies each time they are involved in litigation.

They already have to make decisions as to whether to employ outside solicitors, now they will have the same choice on advocates.

He says smaller employers trying to keep costs down may be attracted to using in-house lawyers for routine and procedural hearings.The principle of equal status between the independent Bar and solicitors in firms is of more than abstract importance, Mr Gilbert insists.For solicitors employed by local authorities, the injustice rankles just as much as with the CPS and the private sector.

Pauline McBride, head of Ipswich Council's legal department, and a Law Socie ty Council member for the local government group, says there is already specialist civil and criminal law expertise within local authorities, which should be allowed to be used in the higher courts.

'Of course, we will continue to retain counsel where appropriate, but in judicial review for example, we already prepare the cases ourselves up to the day of the hearing,' she says.

'It would save a lot of money for our own solicitors or barristers to argue the case.' And she points out yet another anomaly in the present rules.

In-house lawyers are prevented from using their expertise in higher courts, yet 'many already undertake high level advocacy against counsel, including silks, in tribunals and planning enquiries'.