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Solicitor advocates: the future (part 2)

14 September 09

Reply to letter in July issue, arguing that the current review will cover the points raised and that the profession can have confidence in solicitor advocates

by John Scott

As a solicitor advocate I read the letter “Solicitor advocates: the future” (Journal, July, 6) with particular interest. I was surprised to see that “the future of the solicitor advocate branch” is “among the thorny questions affecting our profession”. I worried that I had missed something, but it appears that it is your earlier correspondent who has overlooked the detail of some recent developments.

Angus Logan’s summary of the aftermath of the English case R v Yeu does not do full justice to the huge fallout caused by Judge Gledhill QC’s intemperate comments. For car-crash entertainment it is worth looking at these, and the response from one of the firms involved (www.solicitoradvocates.org/library). Subsequently Lady Justice Smith, the President of the Council of the Inns of Court, withdrew a letter to resident and presiding judges seeking evidence about the quality of work done by solicitor Higher Court Advocates (HCAs) and employed barristers. She also agreed to destroy any responses received. The change of tack followed a complaint to the Lord Chief Justice by the English Law Society. It was suggested that the letter “appeared to demonstrate a bias against solicitor advocates and employed lawyers, and to support the campaign against these advocates by the self-employed criminal bar”.

Even with the strong comments in the Woodside judgment I think we have a more mature relationship here between the bench and solicitor advocates. Indeed we continue to have significant judicial support in our training and assessment. We hope that this will extend shortly to CPD, organised by the Society of Solicitor Advocates (SSA), which is specific to rights of audience. There will also be a welcome judicial presence at an SSA dinner at the Scottish Parliament on 14 September.

I regret to say that Mr Logan has also failed to spot the full terms of the forthcoming review of rights of audience –it will cover not only solicitor advocates but advocates as well, and will consider issues arising from the differing relationships which solicitor advocates and advocates may have to the court, clients and instructing solicitors, and whether any changes to the framework of legislation and rules are desirable to ensure the interests of justice and the public are protected. The SSA was the first to suggest such a review, although the Law Society of Scotland supported our request.

Importantly the review will operate within the broad principles which have informed the approach to the Legal Profession Bill – in other words it will be assumed that both advocates and solicitor advocates will retain rights of audience;

advocates and solicitor advocates should in general have an equality of standing before the court, and operate under similar standards of conduct;

there should be fair competition between solicitor advocates and advocates;

the proper administration of justice should be a paramount consideration.

Mr Logan explains that he does not instruct solicitor advocates because there are none in his firm. With due respect to his choice, many other firms will seek out the best man or woman for the job, regardless of headgear. This is certainly so on the criminal side where I, and many colleagues, do most of our work in the High Court for other firms. Those firms are equally happy with “the expertise, independence and service” we provide.

I agree with Mr Logan’s desire to retain an independent referral bar. I accept that some (although far from all) of our finest lawyers are at the bar. Having worked very closely for some time now with some of these, it is impossible not to be impressed with their work.

Mr Logan poses a few questions about possible conflicts and other professional practice issues. The answers are clear from our rules. These and other professional rules should be sufficient protection against improper conduct, and have proved to be so thus far.

He speaks of “independence” as if it involved a mythical aspect which is available only at the bar. I wonder whether he considers that he can offer independent advice to a client of his firm. I have never doubted my own ability to do so, even when the advice would not be in the best financial interests of my firm. If I wanted to make money regardless of rules I would not be a solicitor, never mind a solicitor advocate.

Mr Logan shouldn’t worry too much about a flood of solicitor advocate QCs – there are only five at the moment. Indeed there is a good case for saying that the QC system has failed to adapt to solicitor advocacy. I can think of at least one very able and well respected solicitor advocate who has done more jury trials than any other lawyer in the country, and yet his application for silk was rejected.

In relation to the question of senior counsel I would suggest to Mr Logan that he should have a look at the Law Society of Scotland’s website for details of the proposed scheme for accreditation of solicitor advocates for criminal legal aid purposes. I can assure him that this scheme will merely allow fair payment to those who are already doing some of the most serious and difficult criminal trials and appeals. Sheriff Principal Bowen’s accreditation committee is expected to issue its recommendations shortly. Unlike QC status, this accreditation will require to be renewed.

There has certainly been some sound and fury in the recent past. What, if anything, it signifies should become clear within the next year. In the meantime the SSA has never had more members, with solicitor advocacy continuing to grow. The future looks good.

John Scott, Vice President (Crime), Society of Solicitor Advocates

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