Law Reform, LCCSA News, Practice and Procedure

The Rise of Solicitor advocacy – it's not about revenge it's about necessity and capability

PUBLISHED May 12, 2014

Shortly after I first received a piece of paper entitling me to call myself a solicitor advocate (HCA is a title applicable to Advocates of both professions) , I began making regular appearances before Southwark, Blackfriars, Wood Green and Snaresbrook CC. So scarce were we then that we would meet other wigless advocates like fellow countrymen from a far off land. In those days there was simply the experience route and the exemption route for former members of the bar. In 2006, the exemption route was broadened to make the route to qualification simpler for solicitors. A few more took up the opportunity, but I still recall around that time being the sole solicitor advocate acting in a nine handed two counsel case at Croydon, amongst 18 wigs, I sat alone and my leader at the time decided to use my wigless status in a beneficial way to remind the jury of a vital point that I elicited from a witness in cross examination. When I was rushed to hospital as a result of an overhead door hinge collapsing and landing on my crown, His Honour joked that I would have been protected had I worn a wig.
In 2008 solicitors were dealt as severe blow to their income as the CBA negotiated a deal with then The Lord Chancellor Charlie Faulkner to provide a favourable structure to the AGFS scheme at the expense of the litigator fee scheme. Solicitors had already been required to request certification to send a clerk to support the advocate at trial, now that service was rolled into the new fixed fee scheme. Until this moment solicitors had been paid for all reasonable work carried out. This had all gone.
If a solicitor has rights of audience, a client with whom he has a good relationship and can be paid for attending court to represent him, why wouldn't that be an attractive model? After all the solicitor had considered the evidence, attended client in prison on more than one occasion provided support for the client and family members and advised on the evidence; there was no compelling reason for a competent solicitor not to do this work. Those who negotiated the AGFS at that time hadn't considered the attraction of this fee structure for all advocates.
The subsequent rise of solicitor advocacy was and still is a necessity for firms seeking to maintain a publicly funded criminal practice. It was no longer sustainable to run a practice based simply upon conducting litigation. The growth of solicitor Advocacy was such that not only did solicitors conduct guilty pleas but also trials. Before long the spotlight was shone upon the competence of those conducting solicitor advocacies. HHJ Gledhill's notorious public pronouncement in 2009 at the conclusion of a trial in which a number of solicitor advocates appeared, opened up the debate just as the LSB and the joint advocacy group opened the consultation on a quality assurance scheme for advocates, a scheme which was very much the brain child members of the Bar Standards Board and welcomed by solicitor groups who were not averse to ensuring that Advocates appearing before the court were subject to regulation so as to avoid the criticisms which were coming from hostile corners of judiciary and the bar.
QASA was an attempt by opponents of solicitor advocacy to stem the perceived tide of us into the court. It was The Bar's "rivers of blood" moment. Whilst the solicitors' organisations, many of whom thought there was no need to go beyond SRA sanctions, welcomed aspects of the proposals, The CBA leadership eventually became concerned that judicial assessment would impact upon the fairness of proceedings. Many became exercised about the concession for “plea only advocates”, enabling solicitor advocates and some counsel who didn't want or have time to conduct jury trials to continue to represent their clients in the Crown Court. It was argued by opponents of POA that if you don't conduct trials you ought not to advice on pleas. This was a naive and irrational position to take, ignoring the notion that this is the work that solicitors have conducted for decades. It is forgotten that all of those affray and wounding trials don't just appear in the crown court in some sort of pink ribbon wrapped vacuum without a plea decisions and advice being provided in a lower court elsewhere. Perhaps, should this logic be followed, solicitors ought not to advise in any either way cases at any stage of proceedings.
The CBA deal with The Lord Chancellor has immense implications for the shape of the profession. With cuts once again balanced in favour of The Bar, of course the growth of solicitor advocacy will continue, especially as firms unsuccessful in winning a contract will look to fund their practice through advocacy as the only way to ensure staff wages are paid. Many members of the bar are understandably concerned about this; the loss of their instructing solicitors to larger contractors along with the inevitable advance of solicitor advocates as a result of the deal would impact upon their practices. It appears that The Bar leadership now seem to be working hard to placate those with such concerns by seeing whatever protection that they can against the rise of solicitor advocacy.
When the deal was agreed on March 26th, part of the triumphant announcement included a reference to the Jeffrey, Rivlin and Leveson reviews; whether or not the bar leadership had seen the potential consequences and concerns of the "deal" at the time, two out of three of these reviews are now focused on ensuring that the junior bar is protected in a way that QASA initially set out to do, long before it became the judicially reviewable monster that it was.
Days before being granted to leave to appeal the JR against QASA, The Bar council issued the post Jeffrey review statement, endorsed by The CBA leadership, proposing that the judiciary ought to be entitled to access the advice given to the client with regards to the advocate instructed. This judicial intervention is seeking to achieve precisely what was sought through QASA, but in a little less subtle manner. Why bother with the JR if this is the direction of travel sought? Why not go the whole hog and turn Judges into contract case managers, determining the grade of fee earner that ought to litigate a case? It might also be appropriate with the assistance of a tariff, for the judiciary to determine the fee payable per case rather than using the page count length of trial proxy. Where on earth would that end? And how is this consistent with the arguments advanced before The High Court Judicial Review.
The LCCSA and CLSA have always acknowledged that there is a need to ensure that advocates are of sufficient quality, both organisations said as much in the responses to the consultation. We have no desire to see our members, with their backs turned continue to be subject to robing room snide remarks about Solicitor Advocates. We see this being achieved through enhanced training and development, no member of the criminal bar or judiciary can argue against representation by a properly regulated and trained solicitor advocate.
As recently as the one bar one voice meeting this spring, Paul Harris told the assembly that solicitors want to see a future for the independent bar, but deals such as that agreed some weeks later does nothing to bolster those sentiments.
- Jonathan Black, Vice President LCCSA, Partner BSB Solicitors