The legal system remains loaded against solicitor-advocates, so what needs to change to level the playing field with the bar? Eduardo Reyes reports from the latest Gazette roundtable.
George Bernard Shaw had it that all professions were conspiracies against the laity. The solicitor-advocates gathered for the latest Gazette roundtable would not agree. They can reel off trials of key public concern run at a loss, and instances where they have gone far beyond core professional duties to clients.
Certain norms and stipulations in the field of advocacy, though, do seem designed to skew the market in favour of barristers. One example is a prohibitively expensive QC application process that makes it nigh on impossible for a criminal law solicitor-advocate to take silk. As Anthony Gold partner Timothy Waitt says: ‘There is much vested interest in terms of keeping the two professions apart.’
Tight restrictions are needed if the status quo is to be maintained, Waitt notes, because alongside advocates of outstanding quality ‘there are jobbing barristers… frankly, doing a fairly low level of advocacy’.
The suspicion in the solicitor profession is that initiatives to improve or guarantee the quality of advocacy can be used to insert thinly veiled restrictions on their own practice, and the routes future solicitors can take to progress in their careers.
Former justice secretary Michael Gove gave particular cause for concern, Joy Merriam of McCormacks Law partner says: ‘When he was lord chancellor, there were mutterings from the bar about whether… it had been a success [to have] solicitor-advocates with higher rights. Gove was apparently looking at the routes to advocacy and curtailing solicitor advocacy.’
Indeed, last summer Law Society president Robert Bourns said the Jeffrey Review on independent criminal advocacy – endorsed by Gove – unfairly dismissed the significance of the work undertaken by a solicitor in the progress of criminal defence cases from police investigation to trial.
A proposal considered by Gove for the establishment of a committee that would look at these issues for the Ministry of Justice has not yet been taken up by Gove’s successor Liz Truss. Merriam, a member of the Law Society’s criminal justice committee, says: ‘With [Gove]’s demise, we think that has gone on the back-burner.’
If the bar lost a champion when Gove left office, then it can be said that those looking to delimit advocacy as a ‘barrister-only’ occupation, persist with subtler tactics. As Merriam puts it: ‘They continue to call themselves the independent bar, as opposed to a self-employed bar, to bolster the idea that they are some sort of superior “surgeon model”. [In comparison] we are the jobbing GPs, “jacks of all trades and masters of none”.’
While the charge of pettiness at the bar can certainly be made to stick, those present note that more emphasis is needed on solicitor training – both in terms of provision and spreading knowledge of the high standards it fosters.
One point to address, Waitt says, is the benefit barristers gain from being ‘mentored in advocacy’. That is ‘something of a challenge for solicitor-advocates, particularly in areas where solicitor advocacy is not practised so much’, he says. The challenge of actually finding a mentor is real.
The Solicitors’ Association of Higher Courts Advocates (SAHCA) has long provided training for advocates. Training has also become a Law Society priority.
Chancery Lane collaborated with City Law School and the Youth Justice Legal Centre to develop structured training courses for solicitors who practise in the criminal courts. Specialist training, Merriam says, will ‘refute any contention that we’re inadequately trained in comparison to the bar’.
Andrew Morris, senior advocate at the Public Defender Service, says that ‘a really important part’ of the chambers model that benefits barristers is the ‘collegiate atmosphere’ that prevails. ‘People who’ve been on the job for 30 or 40 years’ are available for informal day-to-day support.
He adds: ‘If I ring up a member of the bar and ask for advice, it’s not going to be viewed in the same way as if I was in the same chambers and did the same thing. That’s going to take time to deal with.’
Training and support should not just centre on oral advocacy, Stewarts partner Philippa Charles notes: ‘There are things that aren’t directly advocacy-related, like how best to structure a skeleton argument so it gets the right points across; how best to make use of your authorities; or how best to deploy your [factual] evidence, particularly in pure submissions advocacy.
‘There’s certainly room in the market for someone to come along and give training on those things. This would boost people’s confidence in terms of being ready to prepare and present their own cases.’
It is possible to overstate the advantage gained by barristers from the pupillage system. As Waitt points out: ‘I would suggest that a solicitor-advocate who has been regularly practising advocacy, much like some of the people here, essentially does so very much on the same model as a barrister. They’ve gained the experience on their feet.
‘The fact they had a few months of feedback while they were on their feet and learning their trade will give trainee barristers a step-up in their learning curve. But within that five years of experience, I doubt there is [a] difference.’
The distinction between a barrister and solicitor-advocate does not much concern the public, it can be argued. But how it plays out in certain sectors is instructive.
Consider the treatment of ‘vulnerable witnesses’ in court. One answer is to provide training in how to handle cross-examination. But will such training become a requirement in relevant areas?
‘This is an initiative that’s being driven by the MoJ,’ Merriam says. ‘It links in with the victim culture that now [pervades] the criminal justice system and how to effectively cross-examine people with kid gloves.’ That training will be compulsory for all solicitor-advocates, with a parallel process for the bar. But Merriam thinks the MoJ has other areas in its sights: ‘They’re already talking about introducing it into family law.’
But when does compulsory training become either ‘accreditation’, or indeed a way for government agencies to control advocacy? Merriam outlines one scenario: ‘The [Legal Aid Agency] is talking about having a panel. You won’t be able to do serious sexual offences, for example, unless you’ve had this type of training.’
For now, she adds, all advocacy training fosters parity with the bar, and is ‘a quality mark you can attach to your advocacy’.
Waitt interjects: ‘The reality is that it’s a political hot potato and therefore the government wants to be seen to be protecting vulnerable witnesses – as it should be, frankly. One way to be seen to do this is to require advocacy training.
‘There will always be people who act on the margins of professionalism and are therefore open to criticism, whether they have the training or not. That’s just the reality, unfortunately. The challenge is dealing with those who are on those margins.’
‘There are other ways to deal with them,’ says Stephen Meacham, sole practitioner and member of SAHCA’s committee. ‘You could have a more detailed code of conduct. There is a view that the more traditional… bar training and pupillage doesn’t prepare people for this kind of cross-examination.’
At the table:
Andrew Morris, PDS advocacy unit
Stephen Meacham, LawTribe
Philippa Charles, Stewarts
Eduardo Reyes, Law Society Gazette
Andrew Cousins, DWF
Joy Merriam, McCormacks
Timothy Waitt, Anthony Gold
Sceptics object that there is a more profound allegation here. As Merriam relates: ‘There’s been quite a high level of resistance to [vulnerable witness training] from the bar, who feel that they’re not able to advance their defence properly. In fact, what the pilots show, when the model that I’ve just described is employed, is a higher rate of acquittal.’
Stewarts’ Charles offers an insight on cross-examination in larger commercial cases: ‘It’s difficult to cross-examine. That’s a skill you need to work on very hard to be any good at. I’ve seen some solicitors cross-examine incredibly badly. I’ve only ever cross-examined twice myself. Both times, I was lucky because I got what I needed from the witness.’
She notes that for commercial advocates, it is in arbitration where a different style of advocacy can be deployed.
What Charles terms ‘likeability’ raises its head in the context of arbitration, ‘because a lot of us practising in arbitration want to be appointed as arbitrators down the line’. She explains: ‘You might have someone against you today who is your arbitrator tomorrow. So do you pull punches because you want them to be good to you in the other case?’ She describes this as ‘the slightly cosy nature of arbitration’.
‘We have the power to appoint an arbitrator. So if an arbitrator is nasty, we might not appoint them again. We look for referral business from colleagues and contemporaries. If we’re nasty to them in a hearing, it might not result in future work.’ In court, she concludes, ‘nobody has that level of vested interest in being pleasant’.
In all contexts, Charles argues, cross-examination requires the advocate to be very carefully prepared.
‘You have to do your own preparation,’ she insists. ‘In some of the larger commercial firms that do a lot of arbitration, you find that the advocate has had the questions prepared for them by a junior, and they turn up with a script and they run through the script.
‘I’ve never been comfortable with that. Unless you can own the case yourself, you can’t present it well and you can’t cross-examine on it well.’
But there is a tension here: ‘You’ve got to find the right balance in terms of actually taking enough time to prepare it properly to deliver it as the advocate.’
Turning to Crown court advocacy, Merriam says: ‘The standard of advocacy is much higher in the criminal jurisdiction, [where] there’s no distinction between solicitors and barristers. The cross-examination in child care cases [by contrast] is unfocused, unprepared and rambling. It doesn’t seem to do what cross-examination is supposed to achieve. It is really an area of training deficit that needs to be addressed.’
One mandatory requirement that has been postponed indefinitely is accreditation under the troubled Quality Assurance Scheme for Advocates, a proposal for a quality mark that prompted a court case against the profession’s frontline regulators. The regulators won, but the proposal has since stalled.
The Supreme Court ruled that QASA was ‘lawful and proportionate’ in June 2015. However, according to the Solicitors Regulation Authority, QASA registration for advocates ‘remains suspended while we consider the judgment and plan a new timetable for implementation’.
In that respect, QASA has company, as Waitt points out: ‘It seems to have ended up in the long grass alongside the current consultation about the second level of panel regulation for legal aid funds and advocacy; the consultation in autumn 2015 regarding legal aid; and, for that matter, the CPS insisting that advocacy be [sourced] by way of a panel.’
Meacham seems to welcome this: ‘It was also about controlling the legal aid [budget]. [And] it was about the neoliberal control of the market for legal services versus the traditional approach.’
Making advocacy add up
At the Gazette’s previous roundtable for solicitor-advocates in 2013, there was an expectation that new business models or ways of working could drive changes in the market. Alternative business structures and ‘BarCos’ would act to blur the division between solicitors and barristers, it was suggested.
But real change has been decidedly modest.
Waitt reports on his own experience in a mixed practice: ‘Clients often want me to do the advocacy because they know me. They trust me. They know that I know more about their case than anyone else could pick up in the economic preparation time for the fees that will be involved.’
But he adds: ‘On a more routine case, financially, based on hourly rates, travel time and so forth, I can’t compete with the cost of a junior member of the bar going off to do a hearing in certain instances.
‘In the other cases where my detailed knowledge of the case is a real selling point, there is a clear commercial advantage for the client (and for my business) for me to do the advocacy.’
In such a scenario, facing a barrister on the other side, he says: ‘I have less flying hours than my opponent. There will be no doubt about that, but I have more knowledge of the case because I’ve been there from day one. That gives me an advantage, particularly in the specialist areas that I practise.
‘I bring to the case something that somebody else who has been instructed three days ago and who has done some advice work on the case just cannot bring.’
DWF’s Andrew Cousins works within a very different model, on cases that include personal injury and commercial claims. His firm has an advocacy unit: ‘In the internal team, we are exclusively reliant on referrals from file-handlers in the firm. We normally work on a capped fees basis. We have two clerks and they will normally agree a capped fee with the file handler.
‘If the case takes us less time to prepare than that capped fee, then we just charge that lower amount. If it takes longer, then we stop at that capped-fee level. So there’s no going over that.
‘The clerks know what the external bar charge. We come in [cheaper].’ As a result, Cousins can be in court four days a week.
Merriam’s child care practice, shaped by public funding changes, has responded by retaining the advocacy element of cases. ‘Once graduated and fixed fees came in for both preparation and advocacy in child care, it was a no-brainer that this was the best business model to do your own advocacy. That is how that department has developed. We’ve now got five Children Panel members who do all their own advocacy.
‘We rarely brief counsel in the child care department and that works very well. In most cases, the paperwork is so voluminous that no barrister could have the same level of knowledge of the case as the conducting solicitor.’
Charles observes a divide in the very different commercial disputes market. ‘There are firms which introduced in-house advocacy units to try to do their own advocacy on big cases,’ she relates. ‘A lot of arbitration departments, particularly in the US, will now insist on doing their own advocacy in-house as part of their business model.
‘They will always pitch to clients that it is better value for money, but I’m not convinced that is correct. You should have the right advocate for the case in hand.’ The idea ‘that you’re leaving money on the table by instructing a separate advocate’, Charles believes, ‘is quite pernicious’.
Meacham, who does both litigation and advocacy, says it is imperative for him not to take on too many cases. Doing so is an obvious ‘danger’ and he cautions firms to take note of whether targets set for fee-earners increase the risks.
All dressed up
Talk turns to wigs and gowns – how could it not? At issue is perceived parity in presentation, in particular during a jury trial.
Cousins ‘doesn’t bother’ with a wig or gown but handles cases that do not involve juries. Others recognise that there is an expectation when it comes to appearance. Morris recalls: ‘I got my rights of audience just as wigs came in [for solicitor-advocates], so I always wore one.’
‘I didn’t wear one at first,’ Merriam recalls. ‘And then I was doing a multi-handled violence case in Chelmsford and I was the only solicitor in it. I didn’t want to stick out like a sore thumb so I borrowed a wig from an old barrister friend and found I quite liked it. You put the wig on and you adopt the persona; you’re in full advocate mode. Then I bought one and I’ve worn it ever since. It does help.’
‘The last time I was in the High Court,’ Charles says, ‘I was appearing in a case where there were three silks and three juniors – very experienced barristers, all of whom were men.
‘I was the only solicitor-advocate and the only woman, and I was right in the middle of the second bench. I thought, “today, I feel conspicuous”.’
The context and the layout of a traditional court also play a role, she adds: ‘There is, literally, that vertical distance to the judge, which makes a big difference in terms of how you feel. Certainly, blending in is quite important in that environment so that people don’t sense or see a difference that’s an immediate thing to pick up on.’
Having got the dress code right, what more could be done to promote the standing, performance and success of solicitor-advocates?
‘There need to be more solicitor-advocate QCs, and there need to be more solicitor judges,’ says Morris. He recalls the ‘only QC solicitor-advocate’ he has seen in a criminal court: ‘I actually looked up and thought, “Wow, you can actually achieve that”.’
This requires changes to the application process, Merriam warns: ‘Look at the application form… It’s almost an impossible bar for a solicitor-advocate to cross. You have to have references from people you represented. You have to have references from judges you’ve been in front of – a particular difficulty in London where you’re going to so many different courts.
‘We’re told over and over again that they’re desperate to appoint more solicitor QCs. Perhaps a way that ought to be approached is looking at what the criteria are, because it does seem very weighted in favour of the bar, certainly in crime.’
In January, the Queen approved 107 QC appointments, just three of which were solicitors (down two on solicitor appointments in 2015). None worked in crime. All three were international arbitration specialists based in the City.
Absent such reform, Merriam urges ‘more badging and quality marking’.
‘There needs to be more media management in relation to the role of solicitor-advocates,’ Meacham urges. ‘Publicity could focus on the fact that, actually, there are only [qualified] advocates under the [relevant] legislation.’
Perhaps with a slight twinkle in their eye, attendees reflect on some of the non-financial rewards that keep them committed to advocacy. ‘There’s something quite sexy about swanning around in a wig and a gown and addressing a jury,’ one notes. Another adds to general laughter: ‘Cross-examining police officers. It doesn’t get much better than that.’
Which may be humorous code for Morris’s conclusion that: ‘There are not many jobs where you get to actually see someone’s life change.’
- This event was kindly hosted by DWF.
For more information on the Law Society Advocacy Section see the website.