Earlier this month, Herbert Smith competition associate Ronit Kreisberger announced that she was leaving the firm to join Monckton Chambers. Kreisberger believes that she can best focus on advocacy work at the bar, despite being a qualified solicitor-advocate.
She is not alone in realising that the qualification of ‘higher rights of audience’ first bestowed on solicitors in 1992 does not necessarily mean hours spent on foot arguing fascinating points of law before a judge. Advocacy has generally dropped off since higher rights were given to solicitors, and many solicitor-advocates never get to use their qualification.
Yet this does not stop them from qualifying. Research carried out by The Lawyer shows that the UK’s 10 largest firms now have a total of 276 qualified advocates. Lovells and Herbert Smith lead the way, with 64 and 52 solicitor-advocates respectively. Freshfields Bruckhaus Deringer brings up the rear, with just 9 qualified solicitor-advocates. Litigators across the City argue passionately in favour of the higher rights that solicitors fought so keenly for.
“It’s essential,” says Simon Davis, a litigation partner at Clifford Chance and president of the London Solicitors Litigation Association. “You, as a solicitor, must think as though the case is going to be on trial. You can only do that if you’ve gone through the training as though you’re going to be in court yourself.”
Indeed, although advocacy itself has dropped off, on occasion solicitors do get to their feet in court. Last year Simmons & Simmons partner Philip Vaughan acted as junior counsel for one of the former Equitable Life directors accused of negligence. Vaughan backed up lead counsel Peter Leaver QC and argued points in court on a number of occasions.
His appearance as advocate on such a long-running trial is unusual. Firms often cannot afford a fee-earner’s time on cases lasting weeks or even months. One senior solicitor-advocate in a magic circle firm said that the practice always runs at a loss. Vaughan and Leaver took on Equitable on a conditional fee arrangement basis, which did in fact pay off when the case settled, with Equitable paying Simmons’ costs.
“It provided a flexibility which was invaluable,” says Vaughan.
Some firms have attempted to bridge the gap between in-house and external advocates by bringing the advocacy function in-house. Herbert Smith is clearly the most high-profile of these, hiring QCs Murray Rosen and Ian Gatt for its advocacy unit launch last year.
The firm’s litigation head Sonya Leydecker said: “Part of the reason for the advocacy unit was to make advocacy part of the culture and make people feel that we were at the cutting edge of advocacy in solicitors’ firms.”
But a function of in-house advocacy units is that they tend to be staffed by barristers, or ex-barristers, rather than solicitors with advocacy qualifications. Despite dire warnings uttered when solicitors were given higher rights, they have not yet overtaken the bar – partly due to the fact that barristers are still cheaper than solicitors, and partly because a barrister’s advocacy experience is still greater than a solicitor’s, even in these Woolf-reformed days.
Indeed, supporters of the qualification believe that its main advantage is to give a solicitor a better feeling for what being a litigator is all about. Robert Hunter, head of Allen & Overy‘s trust, asset and fraud tracing group and a senior solicitor-advocate, says: “Experience of solicitor-advocacy helps you understand the litigation process from all perspectives.”
Firms encourage new litigators to take the qualification test and numbers will keep rising despite the continuously falling amount of oral work before the courts. But those wanting to spend their days arguing cases before judges would do best to follow Kreisberger’s lead, and head for the bar.