Solicitors on trial

The shake-up in training for solicitor-advocates this October will herald a new push at City firms to develop in-house expertise.

Anne Mizzi reports on the rise of the civil law solicitor-advocate

From 1 October, trainee solicitors can begin working for their advocacy qualification even before they emerge from their training contracts.

And when they are admitted, they will only need six more months' advocacy experience.

This is good news for City law firms, with their massive litigation departments and international clients who fail to see why they should pay twice for legal advice if their case ends up in court.

But that is not the only reason why the City firms have welcomed the new regulations.

Ever since the then Lord Chancellor, Lord Mackay of Clashfern, and a team of judges broke the Bar's monopoly on higher courts appearance rights in 1993, City solicitors have struggled find the right kind of work to give their lawyers the 'flying hours' in court they need.

The top City firms say they have been taking on chargeable and pro bono work in the hope that the cases will end up in the lower courts.

The old regulations were based on training and tests geared towards solicitors who were already regular lower court advocates.

They needed two years' advocacy experience prior to their application, had to pass a written test on law and procedure, and had to complete a six-day residential course.

From October, there will be three routes to qualification.

The transitional 'accreditation' and 'exemption' routes will be phased out in five years.

After that, the only route available will be the radical 'development' route of training and assessment in higher court procedure, evidence, ethics and advocacy skills, plus a year's litigation and advocacy experience.Trainee solicitors can already get the training and assessment and up to six months experience under their belts during the training contract.

The new fast track for novice lawyers is perhaps the most controversial element of the new package, as it leaves the Law Society open to criticism of dumbing down standards by unleashing inexperienced trial lawyers.

Mark Humphries, chairman of the Solicitors Association of Higher Court Advocates and head of advocacy at City giant Linklaters, says this will not happen: 'The qualification regulators require a standard of advocacy which is much higher than the expertise of a pupil barrister.

There is going to be no flood of inexperienced advocates going into the higher courts without the necessary competence.'

But Clifford Chance's managing partner for litigation, John Potts, says he is concerned about standards: 'The standards at the moment are not demanding and I do worry about it.

I would like to see the standards of training kept high.

The Bar and our side of the profession have got to work together sensibly on this, because even though the Bar will hold up for so long, we are going to end up with one profession.'

Allen & Overy litigation partner David St John Sutton is also cautious.

'It shouldn't lead to a lowering of standards if the necessary training takes place,' he says.

Just to be sure, Allen & Overy has established a team to examine the implications of the new regulations.

Allen & Overy already encourages its litigators and arbitrators to attend National Institute of Trial Advocacy (NITA) courses, run by the US advocacy trainers in association with Nottingham Law School and the College of Law.

Aspirant advocates from the top eight City firms - Clifford Chance, Slaughter and May, Linklaters, Allen & Overy, Freshfields, Herbert Smith, Lovells and Norton Rose - already mingle on the NITA courses.

But in their struggle to create a competitive advantage, firms like Linklaters and Allen & Overy are examining the basic training their lawyers are receiving on these courses and looking at how they can improve their qualifications later down the line.

Linklaters recently announced plans to introduce its own branded advanced advocacy qualification, and is asking law schools to bid for the contract (see [2000] Gazette, 17 August, 6).

Allen & Overy now says it is also reviewing training.

Mr Sutton says: 'When we have finished studying the regulations and the guidance, it may mean increasing their training.'

Although the guidance, which will flesh out the new rules, is still being formulated in consultation with the profession, it is likely that the Law Society will put more emphasis on detailed reports of court appearances.

Patrick Walker, director for advocacy at Hammond Suddards Edge, says his firm already keeps detailed records of court appearances, such as the value of the work.

'It is quite clear that the Law Society, whilst being very keen to uphold standards, is also very keen to take into account on-paper training and real experience,' he says.

'In practice they seem very committed to looking at practical experience of all sorts.

I don't think it's designed to make things easier, but more flexible, taking greater account of other relevant experience.'

Mr Humphries is hoping the new rules on experience will benefit City firms, who got a 'bad deal' from the old regulations.

He explains: 'The route that some of our people had to go down was the experience route, which is not going to be relevant after 1 October.

It was a catch-22 situation.

It said in order to get a qualification to appear, you've got to have extensive experience of advocacy in the lower courts.

We had to take on large amounts of pro bono work in lower courts and tribunals in order to achieve the flying hours required by the rules.

'Ninety five per cent of cases stall.

In order to get one decent opportunity, we would have to take on 20 cases so it was a never-ending battle to get the right sort of cases.

It's a problem that was more acute in the City firms because provincial firms do more work in the lower courts.'

The Solicitors Pro Bono Group has yet to look into the impact the changes in the rules on flying hours will have on pro bono work, but is relying on law firms' altruistic motives for taking on the work.

The group's director, Sue Bucknall, says: 'From all the research that I've done, they do pro bono work because they want to do it.

I don't think they do it so they can become solicitor-advocates.'

Clifford Chance's Mr Potts backs this view, arguing that both the lawyer and the firm get much more out of pro bono work than experience.

Mr Sutton agrees.

'We do a lot of pro bono work but not all of it leads to advocacy experience, only some of it.

We don't take it on specifically to get experience.'

The figures show there has been a steady increase in the number of solicitor-advocates, and that there are now 1,077 in total.

This is made up of 151 qualified for all proceedings, 190 with the civil qualification and 736 with the criminal qualification, including 325 Crown Prosecution Service lawyers.

With commercial firms increasingly bringing low-end work in-house (see [2000] Gazette, 3 April, 1) and a streamlined qualification procedure, these figures, especially on the civil side, are now likely to increase.

'There is obviously going to be a surge,' says Hammonds' Mr Walker.

'The rules are intended to make applications straightforward, but the surge in applications also comes from a growth in in-house advocacy.'

But to give clients a cost-effective one-stop service, it has to be carefully managed.

'If you have a partner appearing as an advocate,' says Mr Humphries, 'there is pressure on generating fee income, so it can be less profitable for a lawyer from one of the more profitable firms to act as a solicitor-advocate on the case.

The answer is to have associates appearing as advocates offering a one-stop service.'

With 14 solicitor-advocates and a total of 80 litigators, Linklaters hopes to make the most of the new regulations.

Mr Humphries says: 'Within two years, we want to have trebled our numbers.

That is a conservative estimate, but I wouldn't like to say there will be hoards of solicitors trampling through the higher courts.'

But there is no doubt the face of advocacy is changing.

When the relevant part of the Access to Justice Act 1999 came into force on 31 July, even employed solicitors gained the right to present cases in the Crown Court, High Court and higher.

Mr Humphries says: 'Members of the public should be educated by us that the most likely scenario is that they will not need to go to a barrister.

I've got a case on at the moment, an arbitration with an assistant.

On the other side there are no solicitors but four barristers.

There is nothing wrong with that.

All these things are happening and there is no reason why they shouldn't.'

Partners have departed leading litigation firms like Herbert Smith and Linklaters for the Bar, and City lawyers say this movement will increase.

Clifford Chance's Mr Potts agrees: 'We've already got examples of people leaving firms and going to the Bar.

I think you are going to see much more interchanging.'

He says the system is 'inevitably' moving towards the US model, and following his firm's merger with Rogers & Wells this year the firm has seconded a number of lawyers to New York to requalify in the US, the course for which includes advocacy.

And in this climate, fusion of the two sides of the profession seems even more likely.

Mr Potts says: 'No one in the City calls themselves solicitors.

It is rather different to the old convention solicitors have.

Solicitors are all referred to as lawyers.

The big international clients can't understand why we are bringing in barristers.

It's an unnecessary fee add-on to them.'

As long as firms are happy to save their clients money on this portion of their bills, the new breed solicitor-advocate will become a fixed feature in the higher courts of the future.