Should solicitor-advocates be regulated by the Bar Council? What's more, should they be entitled to call themselves barristers and indeed wear a wig in the higher courts? Chris Baker discusses the future of advocacy on both sides of the profession

The new chairman of the Bar Council has triggered new-year controversy with his views on the regulation of solicitor-advocates.

In an interview with the Gazette earlier this month, Stephen Irwin QC suggested that solicitors who undertake mainly advocacy work should be regulated by the Bar Council.

He also proposed that counsel who work for law firms should be regulated by the Law Society (see [2004] Gazette, 8 January, 1).

Any regulatory change arising from the ongoing Clementi review of the regulation of legal services should mean that lawyers are 'regulated according to their function and organisation, rather than the original exam they passed,' he said.

High Court-qualified solicitor-advocates have been around since 1994, but numbers have swelled since the qualification system was reformed in 2000.

The same year saw implementation of section 31 of the Access to Justice Act 1999, giving solicitors rights of audience in every court in the land.

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.

There are now around 2,000 High Court solicitor-advocates, and the Solicitors Association of Higher Court Advocates (SAHCA) says it receives two or three calls a week from interested practitioners.

However, its members do not all agree with Mr Irwin.

Clifford Tibber, a solicitor-advocate at London firm Tibber Beauchamp-Ward, says: 'Personally, I cannot see the need for further regulation.

Solicitors and barristers are adequately regulated by their own organisations and when they appear in court as advocates they are regulated by whomever is presiding.'

Clare Dwyer, who performs commercial advocacy work for the Manchester office of Addleshaw Goddard, says it would be impractical.

'Our rules on professional conduct, and our training, are still very different in many respects, such as our rules on conflicts of interest.'

Michael Caplan QC, a partner at City firm Kinglsey Napley and immediate past chairman of SAHCA, is all for a closer working relationship between the bar and solicitors, but says no regulatory change is necessary.

'Solicitors have only been able to achieve rights of audience in the higher courts for the last decade, but no one envisaged that they would have such an impact,' he says.

They are now welcomed and accepted in the higher courts and the numbers are ever increasing, he adds.

'Obviously it is still the case that the majority of advocacy is conducted in those courts by barristers,' Mr Caplan says.

'However that is not - and never has been - the position elsewhere.

Solicitors appear more than barristers in the magistrates' court, for example, and before a number of tribunals.

'I believe that the control of solicitor-advocates is adequately carried out by the Law Society.

I have not heard of any complaint from the judiciary that the arrangements for the control of solicitors appearing as advocates should be changed.'

SAHCA's present chairman, Mark Clough QC of City firm Ashurst Morris Crisp, argues that Mr Irwin's comments must be seen in the wider terms of the Clementi review.

He says it is 'strange' to have two job titles for the same work.

'Why should solicitor-advocates not be barristers?' he asks.

'The door would close immediately on meetings of frustrated under-dressed solicitor-advocates aspiring to the wig and gown; there would no longer be the inevitable risks of discrimination in open court associated with two types of advocate doing the same job.

Instead, there would be justice for all if all advocates had the same professional title and the same court dress.'

The issue of court dress and so the ban on solicitors wearing wigs is one that exercises solicitor-advocates far more than the bar, which considers it a sideshow.

Korieh Duodu, an employed barrister at City media law firm David Price Solicitors &Advocates, says dressing differently in court can affect a jury.

'There's a very strong argument for uniform court dress but whether it is with or without the wig is by the by,' he says.

Mr Clough also argues that abolition of the role of Lord Chancellor means the government will have to think carefully about how the courts themselves are regulated.

Mr Irwin's suggestion that judges oversee regulation of all lawyers is one solution, but Mr Clough wonders 'whether it will find favour with the judiciary'.

Andrew Keogh, a solicitor-advocate at Manchester firm Tuckers, warns that judges are out of active practice and as such out of touch.

He says it would be 'arrogant' for the bar to regulate solicitors, and argues that it may not have much of a future anyway.

'Solicitor-advocacy is continuing to flourish.

As the years pass, the bar will find itself redundant as young solicitors will no longer fall for the old line that you can be either a litigator or an advocate but not both,' he says.

'A dual role works successfully in many other jurisdictions, and will soon no doubt prosper here.'

One of the issues the Clementi review is investigating is fusion of the professions - the Bar Council maintains that an independent referral bar remains vital.

Perhaps the most worrying aspect of the growth of solicitor-advocates so far as the bar is concerned is the number of major City firms that have decided to grow their own advocates in-house.

Philip Reed, a litigation partner at City firm Norton Rose and a SAHCA committee member, says: 'We have made a tactical decision that all our newly qualified fee-earners are being trained to have higher-courts rights.

We are in the fortunate position that our training department is accredited to run all the training for that and I think we are the only firm in the country to do this.

As a consequence, there has been considerable growth in the numbers.'

Mr Reed says the nature of the advocacy work undertaken depends on the workload of the department and the experience of the individual.

'But we would expect them to do case management from the very earliest stages.

Then, as they get more senior, they will take on more and more of the work that a junior counsel would do.

We do some high-value and high-responsibility stuff, but it's accepted that we are not going to compete with the leading silks.

However, our associates can fulfil the role of junior counsel.'

He says the goal is a more efficient, seamless service.

'Once a person has done the research, they have got that knowledge and they are best placed to explain it to a judge.

'Our strategy is to build on taking full responsibility for a case and the delivery of all aspects of the service that the client wants.

We feel happy doing that as part of a single entity and that's the way the future is going for us.

You will find the same with the other City firms.'

Mr Clough says that 'in a general sense, Ashursts encourages the lawyers in the litigation department to train and qualify as solicitor-advocates'.

He explains: 'This also appeals to specialist lawyers in employment and tax.

The solicitor-advocates tend to do minor High Court interlocutory work and procedural steps in the court process, leaving the trials to instructed barristers.

The increased use of solicitor-advocates will be gradual and will depend on the current young lawyers gaining experience over time but there is always likely to be a need for the full-time advocate, whether barrister or solicitor-advocate.'

At Herbert Smith, which has a renowned City litigation practice, all newly qualified solicitors in the litigation division are required to obtain higher-court rights; the firm now has 35 who can stand up in the High Court.

Head of litigation David Gold says: 'The difficulty is to find court work they can undertake.

A problem I think many firms have experienced is finding the right opportunities to do that.

What we are keen to do is get them more involved in the early advocacy stages.

'We have had people appear at trials and take part in the case through the trial doing some cross-examination and taking witness statements at the junior level.

It will be a little while before we are running full trials from beginning to end without using the bar.

'There are cases where it's appropriate to put together a team at the early stages that will involve counsel and other cases where you might not need an advocate.

It's a question of the solicitor dealing with it deciding on the best course of action for a case.'

At Tuckers, Mr Keogh says the criminal law firm uses advocates exactly as it does counsel.

He says: 'In the last year, for example, I have done rapes, armed robberies and drug importations alone.

We are led by QCs on murder cases and the like.

Solicitor-advocates here are not involved with the day-to-day running of the cases, so we are exactly like counsel.

This is very important, particularly in criminal work.

We are constantly expanding the work done by solicitor-advocates and all staff are encouraged to qualify.

Because of the volume of work and the range of skills involved, we will be using counsel long into the future.'

Barristers appear to agree more with Mr Irwin when it comes to regulation of solicitor-advocates.

Former Crown prosecutor Neil Addison is now in private practice.

'I have argued in the past that criminal law solicitors have more in common with criminal law barristers than they do with solicitors working in the legal department of ICI,' he says.

'Also, a barrister working in the legal department of ICI has more in common with a solicitor than a criminal barrister.'

Mr Addison would like to see solicitor-advocates and barristers scrap their 'complex' transfer rules to make it easier to cross over from one type of work to the other.

But any regulation for the legal system must not come from Whitehall, he says, adding: 'The idea of Oflaw fills me with utter dread.' Political interference would be almost certain, he predicts.

'If there is to be a regulator, then I would prefer the regulator to be the judges,' he says.

'We already have concerns about the interference with judicial independence and lawyers' independence is just the next on the list.'

Mr Duodu sees the argument over dress as a symptom of the regulation issue.

'There are two different species of profession carrying out the same function and they need to do it in a uniform way - no pun intended,' he adds.

While he contends that it would be 'over-simplistic' for solicitor-advocates to be regulated by the Bar Council and law firm-employed counsel by the Law Society, Mr Duodu accepts that a compromise needs to be reached.

'I feel like I am bound by the Law Society code of practice because my firm is and I act in the capacity of the firm,' he says, adding that the Society's rules for solicitors' advocacy appear similar to the Bar Council's code.

The Society and bar seem to be doing a good enough job, so no new tier of regulation is needed - just more homogenous rules.

There has always been a small trade in solicitors and barristers moving to the other side of the fence, but recent months has seen a steady trickle of barristers going in-house at law firms.

Mr Reeds says: 'I'm one of them myself; I was at the bar for 13 years and I moved over in July 1998.

We have other employed barristers - there are two or three at present.

I think it will be a growth area because the ultimate synergy is something which enables you to deliver value to the client.

I don't think that there is any difference between advocacy and case preparation - they are the same thing.'

He adds: 'I think we will continue to see greater fluidity between the two professions.

It's a fact that business is no longer a business for life; people will see their careers as moving backwards and forwards between the two.

Other City firms have seen solicitor-advocates who have qualified go to the bar and members of the bar who see working at a firm as an attractive way to spend a couple of years of their career.'

Herbert Smith is also looking at hiring more barristers for a dedicated advocacy department, which would also help with the training of solicitor-advocates.

'There are financial issues to investigate and issues of quality,' says Mr Gold.

'We've had a lot of interest - but would we get the right people? We will be taking a decision later this year.

It's very much "watch this space" at the moment.

Many firms with large litigation practices are looking at either employing barristers or looking at this possibility.'

The issue is keeping full-time advocates busy, he says.

Herbert Smith has investigated the US model of the advocate doing all the work from day one, but Mr Gold says he is not sure it would work in England.

'It seems to me that in many cases US firms bring advocates in quite late - albeit from the same firm.'

Mr Duodu predicts: 'There are going to be more solicitor-advocates and the time might come when there are as many as there are barristers.

In which case, it makes even less sense to have different rules governing the advocacy profession from one side or the other.

This really needs to be looked at and now is the time to do it.'

Chris Baker is a freelance journalist