In the Media

Zero tolerance of ?solicitor bashing? of any kind

PUBLISHED May 15, 2009

In recent weeks the standard of solicitor advocacy has been the subject of self-doubt by the profession and high-profile criticism by a circuit judge.

On 16 April 2009, the Solicitors Regulation Authority closed its consultation process about solicitor advocacy. This indicated that the SRA thought that solicitor-advocates should undertake mandatory re-accreditation every five years. This was worrying for three reasons: first, because the SRA had not assessed the equality and diversity implications, whether formally or informally; second, it openly admitted that it had no evidence to support the proposition that solicitor advocacy might be weaker than barrister advocacy; and third, it appears to have misdirected itself on the fundamental principle of accreditation.

It appears that the SRA may have partially climbed down on its enthusiasm, it seems, to assist the bar. However, the self-doubt expressed in the consultation paper is worrying.

Equally worrying is the misunderstanding of the qualification process. Solicitors are admitted and are entitled to practise so long as they have a practising certificate. If they achieve the requisite standard under the ?entry-level scheme? they are entitled to the Higher Courts Qualification. Thus solicitors and solicitor-advocates gain their qualifications and any issue of accreditation or re-accreditation simply does not arise; any policy seeking, retrospectively, to undermine ?entry-level qualifications? must be both unlawful and misconceived. It is surprising that the SRA, when publishing its consultation paper, does not appear to have understood the fundamental differences between qualification and accreditation. Unless it addresses this, future considerations of this issue will be erroneous and flawed.

The judicial criticism (see [2009] Gazette, 23 April, 1) will undoubtedly be the subject of much discussion and debate. I cannot comment on the substance of the judge?s complaint. However, I quarrel with the way he did it.

It seems to me that there are three ways in which judges should deal with advocates of either profession. If the error is trifling or not serious, that can be rectified with the advocate there and then (normally in the absence of the jury). If the errors are more serious, the judge can contact the head of chambers/senior partner. If the errors are very serious, then a complaint to the regulator can be made. This is the good practice for judges to follow when concerned about the competence of advocates (whether solicitors or barristers) appearing in their courts. The judge did not invoke any of these procedures. He criticised the advocates without giving them a right of reply. By announcing that his
quasi-determination should be widely published, he sought, in the views of many, to undermine the profession of solicitor advocacy. Despite all of this, he certified a fair trial.

The Solicitors Association of Higher Court Advocates (SAHCA), which has in the region of 1,200 members, seeks to promote high standards of solicitor advocacy and to assist solicitor-advocates with the conduct of their advocacy practices. We have a developed system of advocacy training, organised by a training officer who is a qualified solicitor. We have a support system for our members through our administrator, who can respond to emails at regular intervals. We are considering including ethics training as part of our programme. In addition, we seek to protect the interests of solicitor-advocates by responding to consultation papers and by making representations where appropriate to the Law Society and to the SRA.

We submitted a detailed response to the SRA?s consultation paper on re-accreditation and at one stage even considered the possibility of judicial review, such was the strength of feeling and the consideration that the process was subject to fundamental flaws.

We exist to support every solicitor-advocate whether he or she is a member of SAHCA or not, and we have zero tolerance of any ?solicitor bashing? of any kind, whether in court or otherwise.

Tim Lawson-Cruttenden is chairman of the Solicitors Association of Higher Court Advocates