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Dispute Resolution LW_0804_26 5/4/04 11:21 AM Page 28 26 LegalWeek 8 April 2004 DISPUTE RESOLUTION With more than 2,000 practising in the UK, solicitor-advocates are no longer a curiosity, but nor has their presence caused a revolution in the courts. Does this mean the prophets of doom at the Bar have been proved wrong? Richard East looks at the development of the profession so far and at the future of advocacy in the UK An advocate of change In the light of Sir David Clementi’s funda- The anecdotal evidence obtained from my What we are seeing today is the evolution of mental review of the legal regulatory framework involvement in SAHCA, and indeed my own a growing ‘advocacy culture’ within the solici- and the Government’s unceasing reforming courtroom experience, suggests that the profes- tors’ profession. It will take considerable time zeal, it is easy to forget that solicitor-advocates sion is slowly beginning to make its presence for this culture to be fully accepted by the are continuing to fight the current restrictions felt. I hear more and more that solicitor-advo- senior end of the solicitors’ profession. Over imposed on their practice, both by existing reg- cates are appearing in the High Court (indeed time this will inevitably affect the Bar’s rev- ulations and attitudes within the profession. my criminal brethren would say that they have enues at the junior (and ultimately) at the Perhaps worrying about court dress does been there for some time). middle end, as firms rely more heavily on their seem rather unimportant in the context of the In my own experience, since obtaining my in-house specialists. current debates regarding the benchmarking advocacy certificate nine months ago, I have I do not herald the end of the Bar. Undoubt- and regulation of the profession and the cre- appeared on my own account in interlocutory edly, for the foreseeable future, the role of bar- ation of a Supreme Court. However, solicitor- matters in the Commercial Court twice and as a risters’ chambers and the Bar will remain and advocates should not be forgotten, particularly junior on a further two occasions. In May this the vaunted few will continue to command given that, in many ways, solicitor-advocacy has year I hope to lead my first trial. These may extremely large brief fees for their services. been at the very heart of the current discussions seem like small steps, but they all help in However, what we may well also see in the very regarding the structure of the legal profession. building experience, confidence and tech- near future is the creation of the first in- Solicitor-advocates, both individually and in nique. In any event, I am sure it is a similar house advocacy unit, which seeks to mix Solicitor-advocates should not be forgotten, the form of the Solicitors’ Association of Higher experience to the first year of practice fol- both solicitor-advocates and very senior Court Advocates (SAHCA), have long been lowing a barrister’s pupillage and I am also particularly given that, in many ways, solicitor- members of the barristers’ profession. The pushing for changes in the structure of the pro- sure that my experience is shared by that of advocacy has been at the very heart of the economics of the Bar and some of the fession, while the Government, and indeed other advocates within other law firms. current discussions regarding the structure of larger firms will, in my view, eventually everyone else within the profession, was seem- But how are we being received by the the legal profession meet. As a consequence, we may also see a ingly happy to maintain the status quo. Bar, the Bench and the clients? Again, my slight shift in the route to becoming a So where are we now and what have we experience and that of my colleagues at SAHCA solicitor-advocate and senior counsel team senior advocate. It may well be that the senior achieved? Well, in respect of numbers, there are is that both judges and barristers have been works very well. advocates of tomorrow will not have come currently over 2,000 solicitor-advocates and this largely encouraging, courteous and patient. So what of the future? It is extremely diffi- through the traditional route to being an advo- figure is growing rapidly. More significantly, a Indeed, the barristers I have instructed over the cult, in light of the Clementi review, to deter- cate (i.e. pupillage). larger proportion of the new solicitor-advocates last nine months, on being told that I will be mine where the ‘advocacy’ professions will go. Advocacy is a nerve-wracking experience and are now becoming advocates via the ‘develop- appearing as their junior and preparing a first However, it seems to me that there are a even the most senior barristers will get nervous ment’ route. In other words, these new advocates draft of the skeleton argument, have been most number of factors which cannot be ignored in before a trial or a difficult piece of advocacy. are coming into the profession as a consequence helpful in their approach. My clients, who are any review of the advocacy professions. This point is always overlooked, but is, at least in of the Law Society’s required training, rather largely from the US, do not bat an eyelid when Firstly, there is a growing body of young than being barristers or foreign advocates who told that I will be part of the advocacy team, solicitor-advocates (and commercial firms) have simply converted to solicitor-advocates. No and indeed, in respect of clients, the ultimate who consider that advocacy is part and parcel of The economics of the Bar and some doubt this growth has largely been inspired by barometer of solicitor-advocacy (or indeed any being a good commercial or criminal litigator. the commitment by some of the larger law firms type of advocacy) will always be success in Secondly, as these advocates generate more of the larger firms will, in my view, to solicitor-advocacy. However, it still bodes well court and the avoidance of duplication and experience, they will become more confident eventually meet. As a consequence, for the profession as a whole. needless cost. In this regard, I think that the and will be prepared to take on larger advocacy assignments, including eventually entire trials. we may also see a slight shift in the Thirdly, the financial drivers behind advo- cacy (which are often cited as the primary lim- route to becoming a senior advocate. iting factor to solicitor-advocacy) must be seen as a function of the evolution in the division in It may well be that the senior the legal profession and not the inverse. It advocates of tomorrow will not have seems to me that if there is both a continued push to create equality between advocates and a come through the traditional route further weakening in the revenue stream to the Bar, whether this is because of the increasing to being an advocate reliance by firms on their in-house solicitor- advocates or because of the reduction in court my view, the major reason for the slow growth of litigation and an increasing emphasis on solicitor-advocacy. Very often it is all too easy, mediation and arbitration, then the existence even in circumstances where the court work lies of advocacy units within the larger commercial within the field of the skills of the advocate, in firms will become increasingly attractive to an environment where partners and contempo- high quality commercial barristers. raries are generally ambivalent about solicitor Fourthly (and finally), in my view there is advocacy or extremely risk adverse, for the bud- nothing inevitable about trial lawyers organ- ding solicitor advocate to take the easy way out ising themselves within chambers and instruct a junior barrister. or other self-employed models, I would urge those who feel this way to So what of the future? It is extremely difficult, in rather than firms, and I would remember that, in being nervous, you are no light of the work of Sir David Clementi (above), encourage any proponent of this different from any other advocate — and to determine where the ‘advocacy’ professions view to take a quick look at the US nerves themselves are no reason to shy away will go. However, it seems that there are a model of trial lawyering, where from acting as the advocate. number of factors which cannot be ignored in quite often firms are instructed Richard East is a solicitor-advocate at any review of the advocacy professions specifically because of their trial Kirkland & Ellis International and a com- advocates. mittee member of the SAHCA..
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