Advocates of change
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5 December 2013
Solicitor advocate Mark Humphries says barristers have had their day in court and change is on the way. Mark Humphries is a solicitor advocate at Linklaters and vice-chairman of the Solicitors' Association of Higher Court Advocates.
The most senior law officer in the Government is a former top silk at the commercial Bar. The junior minister in his department is also a former barrister. So is the Prime Minister and, on top of this, his wife is a QC. We seem to be somewhat outnumbered, and on paper, solicitor-advocacy seems to be doomed.
But if New Labour has one thing in common with solicitor advocates, it is the belief that tradition should give way to progress.
If purchasers of litigation services knew that they could be represented by one litigation lawyer rather than two, and pay just one bill without compromising the quality of case preparation or advocacy, they would use a solicitor advocate.
At present there are four factors which are delaying the demise of the Bar. These are:
until 1994 only barristers had rights of audience in the higher courts and the increasing contingent of solicitor advocates is not yet sufficient to be available to everybody;
the advocates who are currently held in the highest regard are predominantly barristers, who will continue to attract advocacy work until there are enough solicitor advocates with enough experience to compete;
the older generation of solicitors support barristers because they believe it is too late in their careers and/or fear that they do not have the ability to practise as advocates; and
the time and finance needed to obtain the higher courts qualification is a disincentive to many solicitors.
However, none of these factors can prevent an irreversible sea change in the provision of professional litigation services.
Solicitors have always had rights of audience in the lower courts whether they should appear in the higher courts should reflect public demand for that service.
The Courts and Legal Services Act 1990 sets out a statutory objective of making provision for new or better ways of providing advocacy and litigation services and a wider choice of persons providing them. To achieve this objective the Law Society has the power to determine whether a person has demonstrated sufficient education, training and qualifications to be granted rights of audience.
Proposed regulations currently have to be approved by an unwieldy quango called the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC). ACLEC has a statutory duty to exercise its functions so as to widen the choice of advocates.
The pace of change has been predictably slow. The Law Society submitted draft regulations to ACLEC in April 1991 and ACLEC published a report on the draft in April 1992. The Higher Courts Qualification Regulations 1992 were eventually approved and the first solicitor advocates appeared in the Higher Courts in early 1994. Since then the ranks of qualified solicitor advocates have slowly but steadily increased. There are now 596 nationwide.
Well over 50 per cent of solicitor advocates are members of the Solicitors' Association of Higher Court Advocates (SAHCA) which promotes the highest ethical and professional standards of advocacy in the higher courts, and encourages the education and training of solicitor advocates.
There are two routes for solicitors to rights of audience in the higher courts. The first is to obtain a certificate of eligibility based on advocacy experience in the lower courts and then to take a test and complete a practical course. The second is to obtain exemption from those requirements based on experience, usually either as a barrister or as an advocate in another jurisdiction.
But the Law Society and ACLEC are discussing measures to reform the procedure to provide three routes to qualification exemption, experience or training.
Meanwhile, the Government is looking again at the issue because it recognises that the current position is untenable.
There is currently an unsatisfactory and indefensible distinction between the route for solicitors and the route for barristers to obtain higher rights
For after completing a law degree, barristers undertake a one-year vocational course and, after six months of their 12-month pupillage, they may appear in the higher courts in both civil and criminal cases.
Solicitors proceed from their degree to a one-year vocational course, followed by two years serving a training contract, and then a minimum of three years in practice as a litigation solicitor. They have to obtain advocacy experience in the lower courts to enable them to be certified eligible to sit a complex exam in civil or criminal procedure and evidence, and then to undertake a partly assessed course costing approximately £3,500. This will ultimately lead to higher rights in either civil or criminal proceedings.
This disgraceful discrimination against solicitors illustrates ACLEC's failure in its statutory duty. Solicitor advocates remain a tiny minority when, in the public interest, they ought to be the great majority.
The draft Civil Proceedings Rules accompanying the Woolf Report clearly demonstrate the desirability of civil litigators taking responsibility for the entirety of clients' cases, rather than subcontracting advocacy services. But how can access to justice be improved in this way if litigators are not permitted in sufficient numbers to represent clients in the higher courts?
When trainee solicitors are given extensive training in advocacy both in the LPC and during a training contract and at least in the City firms, during the first two years of qualification as a litigation solicitor there can be no justification for making solicitors wait a minimum of four or five years more than barristers.
There is no evidence to suggest that the training of solicitors is inferior to that received by barristers. If vocational courses for solicitors and barristers are merged, as many predict, a way of eliminating this discrimination may be to introduce optional advocacy modules on the finals course, which can be taken by aspiring advocates. If parity of training is achieved, what justification remains for allowing barristers to appear in the higher courts before they are as well qualified as their solicitor counterparts?
Furthermore, after a period when some City firms were sceptical of the client benefits of developing an in-house advocacy capability, most are now converts. These firms have made a massive investment. Many, like my own, are committed to the transformation of the practice of civil litigation to our clients' advantage.
Clients are questioning the roles of lawyers in litigation. They recognise that they were once obliged to pay for duplication. Now that they have a choice, they will refuse to pay.
But clients do not want their solicitors to pretend to be barristers. They want their choice of litigation solicitor to be their advocate. If a client retains a specialised commercial litigation solicitor, he is entitled to expect that specialist to argue his case in court. He does not want the presentation of his case delegated elsewhere.
The call for change applies to all firms. If a firm is offering a fully integrated litigation service, it has a competitive advantage over one which is not.
There are also signs that the workload of the junior Bar is contracting. The diet of pleadings, formal documents and interlocutory advocacy is under pressure from solicitors.
It follows that, without the opportunities for junior barristers to gain experience, the leading advocates of the future are likely to be senior solicitors. Judges will be appointed largely from their ranks.
Opportunities for early experience of advocacy vary from practice to practice. In many provincial firms there are opportunities to practise in the lower courts during the solicitor's training contract, as well as upon qualification.
In City firms, such opportunities are more difficult to obtain and, instead, commitments have been made to pro bono advocacy through organisations such as the Free Representation Unit and the Disability Law Service.
These provide inexperienced solicitors with experience of advocacy in circumstances where the client would otherwise be forced to represent himself. In this way solicitor advocates can begin their experience steadily rather than the "sink or swim" approach of the junior Bar.
So the next generation of litigation in the UK is likely to resemble that of the US. Fusion of the two branches of the profession is a real possibility.
Once junior solicitors compete with the junior Bar for the same work, the only way for barristers to retaliate is by taking instructions direct from lay clients.
If they were ever to take that step, instead of retaining their status as a referral profession, they would end up with a similar practice to a solicitor advocate, competing for their work with those from whom they once received it.
Even if the Bar remains as a specialist referral practice, the number of solicitors wishing to use their services is bound to decrease as the new generation of solicitors, trained in advocacy and keen to compete in the new market place, takes the place of the older generation of litigation solicitors who had no intention or desire to practise advocacy.
Increasingly, City firms are performing advocacy work. This will continue. Eventually, there will be no reason for a City firm to use a junior barrister in commercial litigation. In major cases, solicitors will insist on using senior barristers. Junior barristers' work will disappear and the source of senior barristers will run dry. Today's top advocates, senior commercial barristers, will be replaced by solicitor advocates.
Today's junior litigation partners will be tomorrow's trial advocates. solicitor advocates represent no threat to the established barrister, but it will be more difficult for young advocates to survive as barristers.