Solicitors silent in court

Only a handful have taken up their rights of audience in the higher courts. Why? Robert Verkaik reports on the hidden obstacles

Solicitors have fought a long and difficult campaign to gain their higher court rights of audience, but few are actually taking them up. Two years after the Lord Chancellor gave the final go-ahead, only 330 (50 of whom are former barristers) have been granted solicitor advocate status.

Paul Hampton, chairman of the Solicitors Association of Higher Court Advocates, believes that a number of factors have created a "powerful disincentive" to solicitors wishing to qualify as higher court advocates. The training course, for instance, costs a solicitor pounds 2,000 plus lost fees in time spent out of the office. He believes the new advocacy exam's failure rate of 50 per cent is evidence of the "terrible burden" felt by solicitors who last sat an exam when they first entered the profession. "I think it's going to take some while before solicitors in larger numbers are going to apply for the qualification, especially when the long-term reward is not always obvious," he says.

Officially, the Bar is in favour of a free-market provision of advocacy, but there have been one or two unsavoury incidents which indicate that solicitor advocates are not always welcomed with open arms. Last year a circuit judge was forced to apologise in open court after suggesting that a defendant needn't "stoop so low" as to seek representation by a solicitor advocate. There have been rumours of barristers behaving discourteously to their new advocate colleagues.

However, Mr Hampton, an assistant recorder, does not believe that such incidents are commonplace. Neither does he think that solicitor advocate recruitment figures are affected by the attitude of the Bar. "Barristers are not necessarily helpful, they don't particularly want us to grow in numbers, but I don't regard them as a problem. It's exactly the same as if two people were running corner shops next door to each other in the high street."

A spokesman for the Bar described as "totally unacceptable" any barrister "behaving discourteously" towards solicitor advocates, but added: "The suggestion that leading solicitors from the City are cowering in the robing rooms under the icy stare of intimidatory barristers is hilarious."

But the Law Society admits to being disappointed by the low number of solicitors coming through to challenge the Bar in the higher courts.

Russel Wallman, head of professional policy at the Law Society, is responsible for overall policy on rights of audience for solicitors. He suggests that the main reason for the low numbers is the tough qualification criteria. "These are arguably too high for solicitors starting off in the higher courts," he says.

Solicitors who wish to take the exams and training courses to appear in crown courts and the High Court have to clock up sufficient "flying hours" to gain a certificate of eligibility. Under the qualification rules, this amounts to participation in 50 contested hearings over two years.

Mr Wallman says: "Our proposals had to be considered by the Lord Chancellor's advisory committee on legal education, which felt that the requirements should be at these very high levels." He expects the Law Society to approach the committee with modified proposals.

Several City firms that have been keen to meet the original 1989 Legal Services Green Paper objective of creating wider choices in the provision of legal services feel frustrated by the regulations. Herbert Smith was one of the first to set up an initiative to help to train home-grown solicitor advocates, to provide City clients with a one-stop service that cut out the Bar. Julian Wilson, a partner, who was one of the first solicitors to be awarded higher court rights, believes that his firm's efforts have been stymied by the "back to front" criteria which require solicitors to have substantial advocacy experience before they become solicitor advocates. "We could have at least doubled the number of people we have got through the course from six to 12 if the criteria were fairer. It isn't a level playing field with the Bar because pupil barristers certainly won't have had 50 appearances."

A survey soon to be published by the City of London Law Society will show that City solicitors feel particularly hard done by because they find it more difficult to clock up "flying hours" than their regional counterparts. John Abramson, convenor of the working party undertaking the survey, says the major problem is that City lawyers don't have the opportunity to work in county courts, where they could build up "flying hours".

Clifford Chance's nine-strong advocacy unit, set up last year to foster advocacy skills throughout the firm, is headed by David Mayhew, a partner who gained much of his advocacy experience in New Zealand's fused profession. He supports Mr Abramson's view. "Because of the split profession here," he says, "any contested interlocutory hearing in chambers has tended to be done by the Bar and not solicitors."

Mr Wallman accepts that most high-street practitioners will have the necessary minimum advocacy experience while City lawyers might not. But he says this affects only a "relatively small number" of City firms.

Another frustration for the profession was the Lord Chancellor's recent decision to refuse to allow solicitors to wear wigs. Mr Hampton contends that this plainly signals to the jury the artificial distinction between barristers and solicitor advocates in the courtroom.

Many solicitors believe that this is just another painful chapter in a long and depressing saga which began with the 1989 Green Paper and has so far produced just 330 solicitor advocates out of a total of 70,000 solicitors.