New age of advocacy

Jeremy fleming looks at the increasing need for firms to provide in-house civil advocacy, the problems this may cause smaller firms and the inevitable conflict with the bar

Solicitor-advocates have only really been up and running for a year, according to Mark Humphries, head of advocacy at City giant Linklaters.

Of course, they actually got started in 1994, but Mr Humphries is referring to the change in legislation effective from last year, which enabled solicitors to qualify as higher rights advocates through the so-called development route.This allowed them to put their experience as solicitors towards the qualification, rather than carry out the laborious 'flying hours' exercise that the first solicitor-advocates were obliged to undertake.If Mr Humphries is right, then the first year has seen big changes, notably among civil advocates and in the City.The Solicitors Association of Higher Court Advocates (SAHCA) recently held its annual conference in London, and the number of delegates - 130 including representatives from Scotland - was the highest yet.Michael Caplan, a partner with City firm Kingsley Napley and Mr Humphries' successor as chairman of SAHCA, says that eyebrows are no longer raised in court when a solicitor-advocate enters.

'Seven years ago we would be mistaken in the court as court ushers,' he recalls.The growing number of senior solicitor-advocates attending SAHCA functions reflects what is happening further down the scale in the profession.At Linklaters, 47 lawyers are about to graduate with the Linklaters' advocacy diploma - having been the first to complete a two-part in-house course jointly run by the firm with external assistance from Nottingham Law School.

They get their final results in December - but a steady flow of students is lining up behind them to tread the same path.Philip Reed, a former barrister and now partner with City firm Norton Rose, explains: 'Clients with experience of using New York attorneys expect to find that UK firms can offer the same one-stop service - it is only restrictive practice in the UK that has prevented this in the past.'Mr Reed says the situation has to develop relatively slowly, with younger advocates cutting their teeth on the more straightforward advocacy, but he is sure that 'in a few years' time, doing advocacy will become another box ticked on the entry forms of young solicitors trying to join City firms'.A clutch of other City firms - including Herbert Smith, Lovells, Norton Rose, Simmons & Simmons and Allen & Overy - have dedicated advocacy departments and are encouraging all litigators, and some specialists, to become advocacy trained.

Patrick Walker, also a barrister and head of the advocacy department at national firm Hammond Suddards Edge, agrees with Mr Reed that the move is essentially client-led.

He says: 'Many foreign clients want to avoid employing separate counsel where possible; they are used to the US system.'But he says that it suits the firms as well.

'I favour litigators undertaking advocacy training simply because it makes them better litigators.

They see things from a focused, efficient and effective point of view.'There is a divide emerging between those litigators who are trained and those who aren't.

Clients will become aware of it.

Those firms who have invested in advocacy training will have an enormous edge in the market.'Often the debate about solicitor-advocates centres around the difference with barristers.

However, the development of a spearhead of larger firms getting seriously involved in advocacy raises another interesting dilemma: what will become of those City firms that are not big enough to have such a dedicated advocacy capability?Mr Caplan acknowledges there is a possibility that the major firms where advocates congregate may become dominant, but he points to the difficulty of predicting the direction of advocates.

'The future is just wide open,' he says.

'When we started out seven years ago, we had no idea that things would change in the profession as a whole the way that they subsequently did.'Mr Reed points out that if the bigger firms become dominant, the competition they pose to the Bar may diminish the overall number of practising barristers, giving the smaller law firms that have few in-house advocates less choice - and perhaps less quality counsel - from the Bar to offer to their clients.However, Mr Humphries says that while some firms may have a higher-profile dedication to advocacy, 'no firm in the City is out of line as far as the fundamental commitment to advocacy goes'.From the Bar's point of view, Mr Walker does not anticipate any problems with survival.

He says: 'I think there's a future for firms employing solicitor-advocates working in conjunction with counsel.

Although part of having a department of solicitor-advocates is being able to provide a seamless service, we recognise that there is always a place for talented specialists at the self-employed Bar, and we encourage working with good external counsel.'But amid the optimism for the future of civil solicitor-advocates, concerns do remain.

'Court dress does remain an issue at the moment.

It may be of less significance for civil advocates than criminal, but nonetheless it would be a gesture towards acceptance and there is no reason for maintaining a distinction,' explains Mr Reed.And in relation to the QC system, there seems to be genuine interest among solicitors in maintaining a system that recognises excellence.But there are some problems, too.

Mr Reed says: 'If the QC is to be a kite mark of quality, it must be fairly distributed on a fair basis.

There can be the impression that those from smarter barristers chambers - where the judges come from - have a better chance of getting it.'If this is a barrister's grumble, 'imagine how much worse it must be for solicitor-advocates', says Mr Reed.

He maintains that the QC system would benefit from some of the openness that has infiltrated into the process of judicial appointments, where acceptance criteria are laid out clearly by the Lord Chancellor's Department and reasons given for rejection.In Mr Humphries' view, these problems are overstated, and may not be problems at all.

He explains that for those solicitor-advocates who operate from solicitors' chambers - and he says there are more than one would suspect - the issue of equal terms with their barrister co-workers is important.

But for solicitor-advocates operating from law firms, he says: 'The clients get to know the lawyers well and to know their capabilities.

They do not need to rely on a couple of letters after their names in order to get instructions.'On the QC system in general, he shares the view espoused by March's Office of Fair Trading report into the professions, saying: 'If the silk system does provide benefits to consumers, it deserves to survive.

If it doesn't, the writing's on the wall.'Mr Walker agrees that the issue as regards civil solicitor-advocates is in large part minor.

He explains: 'Most solicitor-advocates' hearings are conducted disrobed anyway.

It is ironic that while many solicitors are pushing for the right to wear robes, many barristers would be happy to see them dropped altogether.

These are basically non-issues.'Meanwhile, Mr Caplan says it is only by co-operating with the Bar that solicitor-advocates can increase their influence.

'We should have a dialogue with the Bar, especially as the legal profession in general is under attack from the public.'Whatever the future holds for the solicitors' profession in general, expect to see solicitor-advocates playing a major part in any transformations over the next five years.