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Solicitor Advocate
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Solicitor advocate is the title used by a solicitor who is qualified to represent clients as an advocate in the higher courts in England and Wales or in Scotland.
orically, solicitors took conduct of litigation, and undertook advocacy in the lower courts (tribunals, Coroner's Courts, Magistrates' Courts, County Courts, Sheriff Courts), but were not able to represent their clients in court in the higher courts (Crown Court, High Court, Court of Appeal, Court of Session, Privy Council, and House of Lords).
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Encyclopedia
Solicitor advocate is the title used by a solicitor who is qualified to represent clients as an advocate in the higher courts in England and Wales or in Scotland.
Origin
Historically, solicitors took conduct of litigation, and undertook advocacy in the lower courts (tribunals, Coroner's Courts, Magistrates' Courts, County Courts, Sheriff Courts), but were not able to represent their clients in court in the higher courts (Crown Court, High Court, Court of Appeal, Court of Session, Privy Council, and House of Lords). Instead, solicitors were required to instruct barristers (in England and Wales) or advocates (in Scotland) to represent their clients in court.
Section 27 of the Courts and Legal Services Act 1990, in England and Wales, and section 24 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, in Scotland, created a route for solicitors to qualify for a grant of rights of audience in the higher courts where they have sufficient training and experience. The complex rules and regulations were relaxed in England and Wales by the Higher Courts Qualification Regulations 2000 so as to establish four main routes to qualify for higher rights of audience: development (training, assessment, and a portfolio of cases); accreditation (experience and an advocacy assessment); exemption (sufficient experience); and former barrister (called to the bar before 31 July 2000). Higher rights of audience may be granted for the higher criminal courts, or the higher civil courts, or both. In England and Wales, solicitor advocates can wear the same garb as a barrister - wig and gown and bands in court , but in Scotland they wear, as do other solicitors, a gown over a suit or equivalent but no wig.
The Practice Today
Solicitor advocates are becoming more prevalent as firms seek to keep work in-house without the need to instruct outside counsel.
The previous monopoly of counsel has clearly led to some complacency on their part as it has been fairly common for late withdrawal from serious cases of the counsel of choice. Occasionally this was accompanied by an attempt to foist upon both solicitor and client a new counsel with no previous involvement in the case. This unreliability has worked to the benefit of solicitor advocates who have the advantage of appreciating the consequences of such unprofessional behaviour and knowing the client.
It is fair to say that in Scotland in particular there has been a significant growth in the instruction of solicitor advocates as a result.
There has been some criticism from the bar and judiciary of their practices, (particularly as solicitor advocates are regulated by the Solicitors Regulation Authority or Law Society of Scotland rather than the Faculty of Advocates or Bar Standards Board) and recently in the case of [2007] HCJAC 19 the High Court was highly critical of many aspects of practice by solicitor advocates, saying "It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel, or a solicitor advocate from outside his firm, in circumstances where either of those options might be in the client’s best interests…". There has also been , with particular criticism of the "present arrangements in which two solicitor advocates may appear in one case, with one acting as senior and the same solicitor advocates may appear in another case, with the other acting as senior, [which] seem to me unsatisfactory and to undermine the confidence which a senior should be able to command", in the words of Lord Osborne in Woodside. In 2006, a Scottish Executive working paper said “The present situation is open to manipulation. The Board may be persuaded by a sanction application that a case is so serious it requires senior counsel. Once granted a solicitor advocate then acts as senior counsel or appoints another solicitor-advocate who has little experience to act as senior counsel. If the case is serious enough then the Board grants sanction, but in return expects a suitably qualified person to act as counsel. However at the moment there is a gap open to abuse…"
On the other hand the appeal in question failed on a ground related to the allegedly "defective" representation of the solicitor advocates instructed at trial. It is also worth observing that the case dealt with the conduct of a trial over 10 years earlier.
In any event the decision was welcomed by the Society of Solicitor Advocates who have suggested that it would be appropriate to have a review of all issues relating to rights of audience, including those involving the Faculty of Advocates.
The increasing workload and recognition of solicitor advocates has led to a refocusing of the legal profession as some law students elect to train as solicitor advocates rather than barristers. The Law Society Gazette has noted that a number of solicitors decide to qualify as solicitor advocates very early in their careers.
External links
- for Scottish Solicitor Advocates
- in England and Wales
- from theLaw Society
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