Donning the advocate's gown

Advocacy in the UK is set to undergo a sea change with the arrival of solicitor advocates, comments Paul Hampton

In February 1994 the Law Society announced the names of 38 solicitors who had been granted extended rights of advocacy. Today nearly 300 of us have such rights and soon this number will rise to about 400.

As higher court advocates we are entitled to appear in all the criminal or all the civil courts or both according to the qualification held. This clearly represents a break with the long-held practice that only referral advocates could appear in the higher courts – Crown Court, High Court, Court of Appeal and House of Lords.

Referral advocates means the Bar, whose members could only be instructed to appear in court by a professional intermediary, usually a solicitor. Since barristers continue to practise under that constraint the solicitor advocate is potentially both their customer and their competitor.

Freedom to practise as advocates in all the courts has opened up a chance for solicitors to offer clients a wider choice, together with a better and more cost effective service. Clients to whom this new style of service is available see the advantages it holds in the speed of response, the more effective lines of communication with the advocate, including greater accessibility, and saving of costs. This is the result of having direct contact with the trial advocate from an early stage in the litigation process.

The demands of each case will dictate whether other members of the advocate's office need to be involved. A busy advocate or advocates in a practice will inevitably present challenges in resource allocation to some firms. This must also involve the need for change in long-held attitudes and practices of our colleagues.

We are only at the beginning of a long process of change. Already advocates appear in growing numbers and with increasing frequency in Crown Court trials before juries. This will be the first area where a major breakthrough will occur. And it will be at the expense of the Bar. Many solicitors are experienced advocates in the magistrates' courts and have little difficulty in translating their skills to jury trials.

A dozen or so solicitors have now been included on a panel of advocates to be assigned by the Registrar of Criminal Appeals to conduct criminal appeals in the Court of Appeal.

Solicitors will soon be allowed to apply for appointment as Queen's Counsel. The Crown Prosecution Service and the Government Legal Service have accepted the principle of instructing solicitor advocates and in a number of cases this has already occurred.

In addition to the greater flexibility and responsiveness of the service to client needs, the extended advocacy rights offer solicitors many new practice opportunities. The choice is there to accept only referral work and, so to practise as sole practitioners or as members of solicitors' chambers.

The alternative is to fulfil a dual function within the firm. We are having to deal with a number of problems which have arisen as part of a process of adjustment.

Although the extension of solicitor advocacy rights has been in the pipeline for many years it apparently took the legal system by surprise when it first arrived. No proper provision had been made in the court rules or in relation to costs to accommodate advocates. Court facilities needed to be changed. This only followed many months after the arrival of the first solicitor advocates. The debate over uniform court dress for advocates and barristers remains unresolved. It is unsatisfactory, to say the least, that barristers wear wigs in court but advocates do not.

The future will see a greatly increased number of solicitors as advocates and also a far smaller Bar.

The procedural changes proposed by Lord Woolf in his review of the civil justice system will suit solicitors and speed up the process of change. The purpose of the proposals is to expedite the litigation process and to reduce its cost. This might be achieved by the introduction of a fast-track system for smaller claims. For the rest there would be greater judicial case management and a more hands-on approach which will have the result of reducing the amount of court time being spent on deciding cases. A further significant development will be the eventual extension of the rights of audience of employed solicitors. This a process that we wholeheartedly support.

Paul Hampton is a partner at London firm Peper Smith & Basham and chair of the Solicitors' Association of Higher Court Advocates.