‘Solicitor Advocates Are Destroying The Junior Bar’

If advocacy is your calling, don’t try to force the creation of a single, merged profession – join the Bar, urges anonymous barrister The Law Horse

It is easy to be magnanimous when you are winning. Two weeks ago, Julian Young fired a calculated broadside in The Guardian at the Bar’s attitude towards solicitor advocates, while calling for a cessation to hostilities. With solicitors’ invasion of the courtroom all but secured, only one side of this legal battle stands to gain from the outbreak of peace.

Solicitor advocates, by their very nature, deprive barristers of work to which they alone were traditionally entitled, and are better trained and qualified to deal with. Instead of passing briefs up to barristers, solicitor advocates now retain some for themselves. This means less work for the Bar, especially junior barristers. Less available work – there is no sign of a correlated drop in general courtroom work – forces a reduction in pupillages and a long term decline in the number of practicing barristers. Where once our QCs were sought after the world over, a generation from now will see a dearth of talent at the top of the profession and the death of reliably excellent advocacy. It is a situation about which the entire legal profession, and not just the Bar, should be deeply concerned.

Solicitor advocates descend on a stricken law horse

As I would not blame a vulture for dining on my carcass, I do not blame the Law Society for embracing and encouraging solicitor-advocates.

But there are real concerns as to the value provided by solicitor advocates, which are only exacerbated when SAHCA (the solicitor advocates’ professional body) regards it necessary to produce idiots’ guides to courtroom advocacy for its members, including the helpful instruction:

“Don’t shake hands with a barrister when you’re appearing as advocate – apparently they are above mutual shows of honesty.”

Solicitor advocates were supposed to open the courtroom doors to the forces of the market-place, reinvigorating a profession stuck in the early twentieth century with competition and consumer choice. In my field of the criminal law, solicitors continue to have virtually uncontested access to individuals who have been arrested and detained at the police station. With the advent of solicitor advocates, a client can journey through the system from arrest and charge to trial, conviction and sentence without a barrister ever being made aware of the existence of their case. This is not competition, it is a cartel.

Solicitor advocates are destroying the junior Bar. The tragedy is that direct access – the much touted saviour of the bar – has the same destructive potential for senior solicitors. Direct access, which allows barristers to bypass solicitors and offer their services directly to the public, will not work in every sector. But in commercial (civil and criminal) litigation, some notably high-powered London chambers are already stealing a march on their solicitor counterparts, offering their considerable experience and expertise without need of middlemen. If this trend continues, some extremely competent solicitors could find their practice on the wane.

To be successful, direct access will involve a drastic change in the working practices of the Bar. From accounting and general administration to pre and post-trial client care, barristers will struggle to provide a credible service. Mr Young points out, seemingly without irony, that these are matters “with which solicitors have dealt for many years and about which solicitors are experienced”, before going on to ask whether such responsibilities are what the Bar wants. I believe my position to be uncontroversial when I answer, emphatically, no. Having worked with criminal solicitors for a number of years prior to joining the Bar, it is not an area of legal practice I wish to revisit. But many see direct access as the last hope of reclaiming work that has been taken by solicitor advocates.

Mr Young suggests a solution: a single, merged profession. I can think of little (the passing of Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) aside) more damaging to the administration of justice. The Bar is an outstanding legal asset, a dynamic library of knowledge and excellence that will fall by the wayside should professionals be forced into jack-of-all-trade roles. Would you be impressed if your paramedic, ward nurse, consultant and surgeon were all the same person, or would you prefer the doctor slicing you open to have a specialist skill?

I have participated in American legal practice, where “advocates” work a case from cradle to grave. It is no accident that their courtrooms are as polarised as their politics, that the standard of advocacy and case preparation ranges from the sublime to the punishingly absurd. American advocates have been known to sleep through capital trials.

Many features are to blame for the poverty of the American system, not least the lack of funding and over-reliance on pro-bono representation. But if advocates were not expected to be lawyers, secretaries and investigators, as well as courtroom litigators, they might have the time to perform something more than a slipshod service. A fresh, independent pair of eyes at the courtroom door can highlight the errors, and bring out the best in any case.

Independence is a word I use uneasily to describe the Bar. There is an innate tension in a profession which is beholden to others for instruction, but which is expected to challenge them when the wrong call is made. But by and large barristers bridge this gap well, and solicitors appreciate frank advice. These are two professions, rich in heritage, with two distinct duties. Barristers and solicitors work best when they work in partnership.

The Bar Standards Board’s (BSB) description of solicitors as “superfluous intermediaries”, borne out of understandable frustration, was neither helpful nor accurate. Solicitors are very necessary intermediaries and I hold the profession in great esteem. They carry out work that I could not nor would not wish to take on. I could not effectively perform my job whilst at the same time attending police stations at 2am to represent a client. I do not have time to interview witnesses and organise exhibits, and still prepare a meticulous and effective courtroom strategy. Advocacy is greater than the words you say, and quality advocacy requires time and dedication. With the pressures of two jobs, I could not look a client in the eye and assure them that I had performed to my best.

There are many eminently qualified solicitor advocates. But if advocacy is your calling, join the Bar and you will excel. Many solicitors have crossed the divide and many barristers have taken the reverse leap. Do not conflate your personal desire to have your cake and eat it with the virtues of access to justice: those who ultimately pay the price will be your clients.

The Law Horse is an anonymous barrister at the criminal Bar of England and Wales. The Law Horse tweets at @thelawhorse.

15 Responses to “‘Solicitor Advocates Are Destroying The Junior Bar’”

  1. Disillusioned

    Many solicitors are extremely skilled and effective advocates – why shouldn’t they have the right to stand up in a courtroom and present their cases?

    Where is the evidence that the results solicitor-advocates achieve for their clients would be better if they’d had a barrister in court rather than a barrister? Surely the most important thing is producing the best result possible for the client and developing the legal profession to ensure that it continues to meet clients needs in the most effective way possible. Harking on in a self-serving way about taking work away from the bar isn’t particularly productive. The legal profession is evolving and quite rightly, get over it.

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  2. Sean

    Is it imperative on Solicitor Advocates to keep the junior bar up and running?

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  3. Kris

    Lol. You must think you’re the Honey Badger complaining about SAs dining on “your” kill.

    I’m also intrigued by your assertion we “deprive” you of work to which you are “entitled”.

    You are “entitled” to nothing. And your blurt reminds me of Mr Occupy the Inns moan that the world owes him a pupillage.

    I don’t know if any SA is better or worse than any Barrister. I find it difficult to believe you are in a position to objectively judge. Please do not confuse your sour grapes with a dispassionate analysis of a lay client’s “best value”.

    As it happens, I disagree with Julian in that I don’t think the profession should be fused. Conducting litigation is a skill and at the heart of (many) solicitors’ practice. Advocacy is a separate skill. Julian dismisses the former as “form filling”. Not in my world.

    I’ve made my application for the switch. For me, most solicitors practices are simply not set up for in house dedicated advocacy. And advocacy needs to be honed regularly, IMHO.

    I’ll cross the divide as and when. When I do, I hope it will be with commercially minded barristers who find new ways of making their services invaluable – rather than complaining about others “stealing” work to which they feel “entitled”.

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  4. Kris

    Oh, and PS.

    The “access to the client cartel” thing? Seriously? You tender away! Get yourself Duty Solicitor qualified and experience the joy of the call out, waiting and LSC form filling – because that’s where the action is!

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  5. Gary

    Been a solicitor advocate for years doing high end work. never experience any hostility from the senior bar. in fact have made some friends for life. only ever hostility comes from chippy little pupils or babys with no practice. get real you are not ENTITLED to anything. I have 22 years under my belt and have worked hard to advance through the ranks.

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  6. Baby barrister

    Apologies to the solicitor-advocates commenting who feel this article is sour grapes. It’s not. As a junior member of the criminal Bar, I agree with this article. Undoubtedly there are some skilled solicitor-advocates; similarly there are undoubtedly some members of the bar who aren’t up to scratch. But different professions mean different training, different skills. Barristers are advocates; solicitors, on the whole, are not. And solicitors taking the case at every level is short sighted; what will happen X number of years when a solicitor-advocate can’t find a leader because those, once junior members of the Bar, have been prevented from gaining the relevant experience?

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  7. kris

    your hypothetical solicitor advocate would probably be the leader.

    I should think one of them will come from Perrin Buildings – if they don’t already.

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  8. Mortons

    What you are already seeing is that a merged profession is the only way forward.
    The good barristers & solicitor advocates will thrive. The bad will fall. Its survival of the fittest surely.

    Barristers are already having to do more preparatory work for cases and this will surely increase with the diminishing no.s of solicitors crown court clerks.

    Regardless of the BAR and SRA positions. With the LSC downward spiralling of fees, economic pressures will surely force closer ties between the professions.

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  9. Solicitor Advocates are the future, the Bar has had its day.

    Well, the privileged classes lamenting the loss of their position, which historically has been held by patronage and monopoly to the higher courts. This elitism is decadent, decrepit, anachronistic and not fit for the 21st century. Solicitor Advocates are the future of advocacy, it is time for the Bar to recognise this and modernise to compete effectively with individuals who are just as clever, just as competent, and provide better value for money for their clients. True their blood might not be blue, and they don’t claim to be from the planet vulcan, but Solicitor Advocates are damn good in the court room.

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  10. Nitram

    These things have evolved,and attempts to stop evolution are misguided. I don’t think trying to restrict solicitor advocacy will achieve anything. Being a solicitor advocate is difficult, as people still expect you to be a solicitor. I think (I’m quite old) that the bar would have been a lot easier, but was never a viable financial option.
    Some things I do better than a lot of barristers, but long trials are not an option.
    My advice to young barristers: Don’t whinge. If you are good, solicitors will instruct you. If you are not good, give up or join the CPS.

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  11. Legally Brunette

    When it comes down to it, the good advocates, whether barrister or solicitor-advocate, only the good advocates will survive and that is the best way forward for all concerned. Competition from SAs means that barristers will not be in a position to become complacent, believe they are ‘entitled’ to work or have an elitist approach to their place in the legal profession. SAs will equally have to ensure they provide the appropriate standard of advocacy required for the higher courts and doing so will be beneficial to other areas of their practice, including advocacy in the Mags’ Courts. Therefore, I believe the most important party in all of this, the client, will receive the best service either way through the accessibility of higher court advocacy to SAs.

    When this article talks of junior barristers having received more ‘training’, it disregards the fact that solicitors break into advocacy in the Mags and County Courts and Tribunals, even if they never go on to get their Higher Rights. Not all solicitors undertake advocacy work but the ones that do quickly build up their skills.

    I’m an SA about to enter criminal defence work in the Crown Court having worked in the Mags so far. I wouldn’t even think of stepping into the CC if I felt I wasn’t up to it. I will make sure that I am on the same footing as the prosecuting barrister at every hearing, no exceptions.

    I hope that the increase in SAs will rid the Bar of some of the ugly attitudes reflected in this article. This derisory point of view led the BVC students at the same establishment where I was doing my LPC to openly refer to us as their “support staff”. They had the gall to say this even though they were only weeks into the course – however, they had already been conditioned to perceive themselves as a cut above. I’m afraid, my learned friends, that good SAs are no less learned than you.

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  12. Barry Cheeseman

    How unprofessional!
    Those of us solicitor advocates who have been conducting crown court trials since the infancy of higher court advocates no doubt have many tales to tell of conduct unbefitting of the bar. Maybe one day we will.

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