Late developers miss their calling

Jane Swann encourages young solicitors to become advocates in the higher courts through the little-used development route

Is there still a need for two main branches of the legal profession? Are solicitors really a threat to the bar? These were the sorts of radical questions being asked in the legal press a few years ago, heralding the introduction of the Higher Courts Qualification Regulations 2000.

But are these questions still relevant?

The regulations may have foretold a brave new world of solicitor-advocates, but the reality has been more prosaic.

Despite increased opportunities, the higher rights take-up among aspiring solicitor-advocates has been minimal.

Of about 86,000 practising solicitors in England and Wales, as at March 2002, only 1,401 (fewer than 2%) are solicitor-advocates.

The Courts and Legal Services Act 1990 enabled the removal of the monopoly which allowed only barristers to appear as advocates in higher courts, and solicitors now have the opportunity to acquire rights of audience in the higher as well as the lower courts.

The opportunities for solicitors to appear as advocates have been increased by the 2000 regulations, which removed unnecessary and costly barriers to qualification.

There are three routes to a higher rights award: the development route, for solicitors less than three years qualified; the accreditation route, for solicitors with more than three years' post-qualification experience (PQE) in litigation and/ or advocacy; and the exemption route, for those with a high degree of advocacy experience.

By March 2002, nine solicitors had been granted a higher courts qualification via the development route, compared with 97 via the accreditation route, and 130 via the exemption route.

Most criminal lawyers are still gaining higher rights of audience via the exemption route, and civil lawyers are predominantly gaining their higher rights through the accreditation route.

The development route has until now been under-utilised, although some major law firms will be using it to obtain high-volume qualifications in the course of the next year or so.

The slow take-up of the development route by the profession at large is a disappointment.

By its nature, it is the most comprehensive and didactic of all the routes to a higher courts qualification.

With its emphasis on training, assessment and experience and its focus on evidence, ethics and advocacy, it provides a real and credible alternative to the traditional bar school/pupillage route to advocacy.

Clearly, the standard that both sides of the profession need to be aiming for is excellence in advocacy.

For these purposes, the label attached to the advocate is irrelevant - an advocate by any other name would smell as sweet.

The development route's advantage is the quality of advocate it produces.

Its graduates have the benefit of a course and assessment in procedure, evidence and ethics and a course and assessment in advocacy skills, a 12-month relationship with a mentor, a solicitor or barrister of five years' PQE/call who is practising as a higher court advocate, and a portfolio of experience detailing the lessons learned from five advocacy occasions.

It would be a shame if solicitors missed out on their new-found advocacy freedoms.

The profession has played its part by unlocking the door - solicitors must now push it wide open.

Jane Swann is the chairwoman of the Young Solicitors Group and a solicitor-advocate at London-based Fisher Meredith.

She is also on the Law Society's advocacy training sub-committee and was the first woman to qualify under the development route