The best of both worlds
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4 August 2014
Matthew Newick gets a "real buzz" out of advocacy. "I like being the person who stands up in court and get results," he says. "But I wouldn't like to give up the close relationship I have with clients, nor would I like to give up the day-to-day need to think strategically about the case. I also enjoy the challenge of arguing a case in court. And I get to do it all," he concludes happily.
Newick is a solicitor-advocate, one of a fast-emerging breed of hybrid lawyers who embody sets of skills drawn together from both sides of the legal profession.
Thanks to a new set of powers, which finally cranked into action in autumn 2000, it is now easier than ever for solicitors to get up on their hind legs in the higher courts.
As the partner responsible for the advocacy programme at Clifford Chance, Newick has seen the number of solicitor-advocates at his firm increase to 21 since the training regime was relaxed, and he says a "whole raft" of others are on the brink of qualification.
"[Advocacy training] makes us all better lawyers. And our clients do seem to like it. There's a degree of comfort in having the solicitor closer to them," he says.
Clifford Chance is not the only City firm that is ramping up its in-house advocacy provision. Lovells has 19 practising solicitor-advocates with around 40 others in training, while Linklaters is on target to have 65 qualified solicitor-advocates by the end of the year and Norton Rose plans to put every fee-earner in its contentious departments through advocacy training courses.
Philip Reed, a barrister turned solicitor-advocate and a partner at Norton Rose, agrees that his firm's advocacy policy will be expensive to implement, but thinks there is "no doubt" that they will "recoup the benefits". He adds: "We'll get better litigators out of it, and even if they don't stand up in court, they'll be better off because they understand how the process works."
While all this training activity is evidence of a shift that could have serious consequences for the size of the junior bar, in-house advocates seem to agree that senior counsel will always have a place in the courtrooms of the future.
|"Advocacy training makes us all better lawyers. And our clients do seem to like it. There's a degree of comfort in having the solicitor closer to them"|
Matthew Newick, Clifford Chance
Newick says that some cases will always call for the skills of a top-flight barrister. "The issue then is that our people need to work much more closely with QCs in order to give them the quality of support they'd get from the junior bar," he says. "But the silks we work with have seen that we can perform at that level, which has taken some of them by surprise."
Rules surrounding solicitor-advocacy were relaxed by the Higher Rights Qualifications Regulations in 2000, which replaced the complicated regime that had been in place since the mid-1990s.
Law Society records show that the majority of solicitor-advocates to date have followed the exemption route, which is aimed at those with three years of legal practice under their belts as well as some experience of High Court advocacy.
Lawyers of three years' standing with some experience of litigation can follow the slightly more involved accreditation route, which calls on them to prove they have a "sound understanding of the procedure, evidence and ethics applicable in those proceedings for which they seek to exercise rights of audience".
Any solicitor who was a barrister before 31 July 2000 now has to prove they had higher rights of audience before they left the bar, and so long as they have also had some recent advocacy experience, they can qualify as a solicitor-advocate with relatively little discomfort.
But by the time 2005 arrives, the only remaining pathway will be the development route, designed for lawyers with little or no advocacy experience. It is, as a result, the most time-consuming and expensive method of all. Candidates must sit advocacy and academic tests and, under the experienced eye of a mentor, must compile a portfolio of cases completed during a 12-month period.
Aside from the expense of the training courses themselves, hidden costs can stack up quickly. Lawyers are expected to spend time gaining advocacy experience when they would normally be earning fees. Senior partners can also be asked to take time out to act as mentors to the trainee advocates, resulting in more lost billing hours.
Yet advocacy is also a good carrot to dangle in front of prospective trainees in order to lure them away from a career at the bar, according to Newick. "They see it as the real end of being a litigator rather than the traditional role of being tucked in behind a barrister," he says. "We can genuinely offer them the best of both worlds."
But on the flipside - and there had to be one - conflicts can arise when both worlds begin to make demands at the same time.
Andrew Henshaw joined the bar after spending 14 years as a litigation partner at Linklaters, during which time he qualified as a solicitor-advocate. "I wanted to focus on the advocacy and court work aspect of the job," recalls Henshaw, now a tenant at Brick Court Chambers. "As a law firm partner you have a team which you have to look after. You have to get work in and delegate and supervise and you can't spend your full time on advocacy. So if you want to do it all of the time, you need to work in chambers."
|"As a law firm partner you have a team to look after. You can't spend your full time on advocacy. So if you want to do it all of the time, you need to work in chambers"|
Andrew Henshaw, Brick Court Chambers
Another prickly issue is the fact that solicitor-advocates are not allowed to wear wigs in court and have dowdier robes than their barrister equivalents, a factor that some fear could work against them in court.
Brian Kennedy, a criminal solicitor-advocate at London firm Kaim Todner, has issued a challenge to the Lord Chancellor under the terms of the 1998 Human Rights Act, because he believes that juries are more likely to be impressed by a bewigged barrister than by a bare-headed solicitor, giving the bar an unfair advantage.
Perhaps the biggest issue of all is the impact that solicitor-advocacy could have on the growth of the bar. If junior barristers are to be sharply elbowed out of the way in favour of in-house trained advocates, where will those who will one day grow up into 'indispensable' senior counsel go to cut their teeth?
With around 1,500 solicitor-advocates already qualified, an army of others in training and an expanding array of powerful supporters, including the Solicitor General, it is clear that these lawyers have the potential to really make themselves heard in court.
Reed at Norton Rose, who spent 13 years at the bar before switching to solicitor-advocacy, is convinced that his practice is now more efficient as a result and he does not see the issue as a battle between the two sides of the legal world.
"I really think the message is about motivation and about driving up skills rather than rivalries between solicitors and the bar," he says. "I genuinely don't think that is how the big City firms look at [solicitor-advocacy]. They just want to do a good job for their clients and for themselves."
Alverstone Chambers is a set with a difference. Founded in 1996 by a trio of likeminded solicitor-advocates, the set has no permanent postal address or clerk. Instead, Alverstone members, who are all self-employed, operate out of a shared diary and use mobile telephones to stay in touch.