The rise of the solicitor advocate

26 Apr 2016
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It has been 21 years since solicitors first acquired rights of audience in the higher courts but it has only been in the last decade or so that they began to seriously consider the advantages of keeping advocacy in-house.

Many firms have created their own advocacy units consisting of solicitor advocates and barristers, the latter realising that they had a better source of work as an in-house advocate within a firm of solicitors rather than awaiting ever reducing numbers of instructions coming into chambers. In the face of the significant legal aid cuts and further changes afoot, duty solicitor contracts for solicitors to cover police stations and magistrates’ courts to be reduced, with Magistrates Court work diminishing in terms of both volume and income, solicitors realise that the future lies in conducting Crown Court work themselves instead of instructing external counsel. The introduction of a fixed fee to cover all defence costs, including advocacy made this stance more attractive to solicitors. There are now more than 6,500 solicitor-advocates.  More and more trainee solicitors are being encouraged to attend Higher Rights course as an elective to their PSC. Firms have become more focussed on how their future advocacy services will be delivered and by whom.

From the point of view of the clients, there had for many years, before 1994, been the plea to their tried and trusted solicitor of “You have always represented me in the Magistrates Court, why can’t you represent me in the Crown Court?” Now clients can have the continuity they desire.

In his 2014 report on criminal advocacy, Sir Bill Jeffrey, noted there has been ‘a marked shift’ in the distribution of advocacy work in the Crown court away from the bar, with ‘many more solicitor-advocates than there were in the years following the liberalisation of the rights of audience’. Between 2005/06 and 2012/13, the percentage of publicly funded cases in which the defence was conducted by a solicitor-advocate rose from 4% to 24% of contested trials, and from 6% to 40% of guilty pleas. Both statistics are ‘on a rising trend’.

That trend faces a potential barrier that may curtail its’ ‘rise’. The latest, albeit delayed, threat to clients having the continuity they wish, with the advocate of their choice, is the so called Quality Assurance Scheme for Advocates (QASA), developed by the BSB, the Solicitors Regulation Authority and ILEX Professional Standards

On 24 June 2015, the Supreme Court handed down its judgement in the litigation challenging the introduction of QASA. The Supreme Court dismissed the claimants' appeal and upheld QASA as lawful and proportionate. It appears registration for the scheme by advocates remains suspended while the judgement is considered and a new plan for implementation is devised. The SRA website reads -

If you do not intend to undertake trials at Level 2, please register at Level 2a. Please note you will be required to attend an approved assessment centre to be assessed against all of the standards in order to be fully accredited and re-accredited.

If you intend to undertake trials at Level 2, please register at Level 2b. Please note you must obtain a minimum of two and a maximum of three criminal advocacy evaluation forms (CAEFs) in consecutive effective trial in order to be fully accredited and re accredited. Please see the Scheme Handbook for further information.

This highlights one of the misconceptions among solicitors considering acquiring higher rights. If, and perhaps since the recent Supreme Court decision, when, QASA comes into effect, there appears to be a belief that it will not be necessary to obtain further training or accreditation to undertake Crown Court trials. As the scheme currently stands, solicitors will need to be judicially evaluated whilst conducting trials. This has been one of the most contentious aspects of the controversial scheme.

The issue for busy solicitors in criminal practice is how to acquire the additional training necessary to equip them for this evaluation whilst conducting their early trials in the Crown Court. That issue is resolved by attendance upon the Higher Rights of Advocacy(Criminal) Course conducted by Kaplan Altior.

 “Being introduced to the Trial Strategy Plan has revolutionised the way I conduct all my trials.” This training provides the in-depth assessment a Crown Court case requires and prepares the advocate for all stages of the process up to and including trial.

“Despite 20 years’ experience in the Magistrates court, the cross-examination techniques taught were like re-learning from day one.” The tips and techniques about the conduct of cross-examination eases the worries some have  of the what for many advocates is the most satisfying aspect of criminal advocacy, namely a well prepared and successfully executed cross-examination of a witness.

These are just two quotes from delegates who have attended the HRA course conducted by Kaplan Altior.

There have been criticisms of the level and nature of continuing advocacy training undertaken by solicitors. For many years solicitors have had to complete 16 hours of CPD each year. However, the Solicitors Regulation Authority has recently reviewed the CPD requirement. Whilst some think this will lead to solicitors undertaking less CPD, for those wishing to acquire and maintain Higher Rights, the opportunity is there to undertake CPD courses specific to the rigours and requirements of advocacy in the Crown court and the judicial evaluation that is likely to be faced.

“Once we had started to use our Higher Rights, we wanted some more specific training for the types of cases we were conducting in the Crown Courts.” A request from former delegates who acquired their Higher Rights through the assessment process and then enjoyed the additional special training from the CPD courses Kaplan Altior offered such as dealing with expert witnesses in the Crown Court.” I found the subtitle of that course “How to win your case without going into court” borne out by the tips and techniques taught on the course for instructing the right expert.”