Bar blasts solicitors for ‘dumbing down’ Crown Court advocacy — and calls for legal execs to be barred

Knife fight looms between three branches of the profession following release of inflammatory Bar Council report that borders on calling for the clock to be turned back

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A glut of solicitor-advocates is “dumbing down” Crown Court advocacy standards and legal executives should be barred from appearing in the higher courts, according to a report from leading barristers.

In what many will view as a desperate bid to turn back the clock to an earlier era of protectionism, the report calls for an outright ban on legal executives advocating at higher levels.

“We do not believe that legal executives should have rights of audience in the Crown Court,” says the report bluntly.

The bombshell was launched by the Bar Council’s criminal justice reform group, chaired by the former circuit judge Geoffrey Rivlin QC. It takes aim at a system that has been in place for the best part of two decades, since the Courts and Legal Services Act 1990 smashed the bar’s monopoly on higher court advocacy rights.

The bar’s recent report went on to pour opprobrium on legal executives:

“If this right continues, in all cases where a legal executive intends to appear as an advocate in the court, the client should be advised of their right to use a solicitor or barrister to represent them, together with clear notification of the contrasting qualifications for the work.”

But the Rivlin report did not stop at casting doubts over the quality of legal executive higher court advocates — it also fired a couple of barrels in the direction of a much greater threat, solicitor-advocates.

The report lambasted “in-house advocates” — its coded language mainly used to denote solicitors or, less frequently, barristers working at law firms — as being of inferior quality and appearing in court because of the financial imperatives of their bosses.

Said the report:

“We believe that the experience of the courts is clear: that some advocates, usually (but not invariably) in-house advocates, are not sufficiently competent to handle the cases in which they appear. Indeed, we have heard a number of accounts of them frankly admitting this to be so, in some cases explaining to their colleagues in the case that they were ordered to do the case for the financial reasons of their firms.

“The appearance of any advocate who is unable to cope with the demands of the case is liable seriously to disadvantage the client and create enormous difficulties for the court.”

The report backed earlier Bar Council lobbying of the Ministry of Justice “to provide and enforce a requirement that solicitors should always advise their clients in writing of (amongst other things) the reasons for recommending an in-house advocate and their right to instruct advocates independent of their firm”.

Meanwhile, the rise of a creature known as the “plea-only” advocate intensely riled Rivlin. The report described the phenomenon as a move “towards dumbing down within the profession”.

According to the report, “some qualified lawyers may not be competent to deal with criminal trials, but might nevertheless appear in court to deal with those who plead guilty”.

Allowing the practice, said the report: “betrays a serious misunderstanding of the role of the advocate, and carries with it a significant risk to the administration of justice. Pleas of guilty can be just as important and onerous as trials.” It goes on:

“There are cases where the demands on the advocate when a defendant pleads guilty can be even greater than the demands of a trial … Very often, particularly in the Crown Court, when people plead guilty to indictable offences, (or are sent there for sentence by magistrates) their liberty is at stake, and they may be at risk of years of imprisonment.”

Despite taking a comprehensive whipping from the Bar Council’s report, the Law Society — the organisation that represents the nearly 160,000 solicitors in England and Wales — seemed reluctant to go in to bat for high court solicitor-advocates. A spokesman said simply:

“This is an interesting report, but the bulk of the recommendations are more relevant for the Bar Council and Bar Standards Board to look into.”

On the other hand, the Chartered Institute of Legal Executives (CILEx) geared up for a scrap with the bar. “It is unfortunate CILEx was not consulted in the drafting of this report,” a spokesman told Legal Cheek, maintaining the Rivlin paper contained crucial “inaccuracies” regarding legal executives.

Cilex struck back by calling for a generally level playing field in Crown Court advocacy work:

“We have no objection to our advocates’ clients being advised of their rights to use a solicitor or barrister, as long as the same rule applies to all, and chartered legal executive advocates are offered as an alternative to solicitor advocates and barristers,” the spokesman said, adding:

“We believe both clients and the criminal justice system benefit equally from having practitioners who are appropriately qualified and have been assessed as to their competence to undertake the work they do.

“Client choice in advocacy should be encouraged in a well-managed and regulated way. Restricting advocacy rights to a small group of professionals will not guarantee quality, trust or confidence.”

Read the Criminal Justice Reform Group’s report in full below:

Rivlin Report Final March 2015

30 Comments

DC

This is legal cheek comment section gold. Let the bloodbath begin.

(42)(0)
Anonymous

what a bunch of self-interested tossers.

when the bar needs the help of solicitors they are the first to fly the flag of reconciliation and claim that they think that the various wings of the profession need to work together. Now that there is an actual element of competition for business, theres a huge worry.
It’s a wonder that solicitors don’t start on the issue of direct access – Perhaps solicitors are simply more used to , and able to deal with (thrive off of), competition for far longer than the Bar which is now struggling to deal with the loss of a monopoly?

The most frustrating thing about all of this is that whilst the legal profession in-fights the only people who gain are the moJ. The race to the bottom in terms of fees paid is only fuelled and supported when the legal professional fails to have a genuine regard for itself and one another.

There is, no doubt, some truth that in some cases you will want an individual who has had a huge amount of direct in-court experience and that is their day-to-day job. However, that is not necessarily a barrister. A solicitor-advocate or even a Legal Exec. , if they have got that experience, will do the job. The magic of “Counsel” just doesn’t cut it. As this site has so often highlighted, the training afforded to barristers can be very poor indeed –so why the drastic need for barristers only at crown level?

If the report wants there to be a balanced explanation of the relevant experiences and qualifications and pros and cons we will need to send to clients the CV of all the advocates involved, not just their professional qualification. I wonder what clients will prefer: (1) the solicitor advocate with 20 yrs practice vs (2) the young barrister who can afford to remain at the criminal bar by virtue of the trust fund but has no real experience.

(15)(18)
37th Earl of Dublin

My CV would withstand any scrutiny.

If you want to level the playing field, just wear your medals.

(32)(0)
14th Duke of Cork

37th Earl of Dublin… I challenge you to a duel on the aforementioned playing field… may the Knights of St. John stand ready to sweep up the loser in their ambocarriage

(15)(3)
37th Earl of Dublin

14th Duke of Cork … you are an ignorant cretin.

You don’t have any medals. You haven’t been decorated for service. And as a respected members of St. John’s I would have to offer you assistance after I defeated you in the duel which I would not be prepared to do as you are just plankton.

And you are a fake Duke. Your boba fides have not been verified, unlike mine which are beyond question.

(15)(0)
Lima

So significant was Lord Harley’s impact upon legal journalism that his absence in an article is as striking as his presence.

(36)(0)
Anonymous

Almost any of us could find ourselves in the crown court facing a charge such a causing death by careless driving. If that happened who would you rather represented you:

A barrister only used to civil cases. OR

A solicitor advocate who since qualifying has focused on drugs, assault with a weapon and rape cases cases. OR

A legal exec who has focused on road traffic law, their whole career and who only appears in the crown court on exactly this type of case
case?

(3)(12)
Chegal Leek

Eloquent barrister every time!

Let me swap it, you’re a legal exec dealing with a traffic case. Who would you rather be up against, a leading civil barrister or an experienced exec?

(20)(1)
Anonymous

Honestly, and if I had to do it without further info, probably the solicitor.

(5)(2)
37th Earl of Dublin

It would have to be the advocate with medals and the hereditary title.

(9)(0)
Researcher

Especially the title that (whatever he says to a judge in the Crown Court) either doesn’t exist or he is not entitled to.

(6)(0)
Anonymous

I remember reading reports not so long ago of the legal profession standing united against the incredibly destabilising cuts implemented by the Tory government…. Right before the Bar received the protection they wanted and then left everyone else out to dry. Same old same old?

(7)(10)
Rise of the Exec

With all due respect to them, the Reform Group may not realise the large proportion of legal execs who have been Called but follow the legal exec route as the majority of pupillage’s simply aren’t economically viable to undertake.

How about an advocate blind test: Guess the qualification
(interactive voting on the red button – who’s getting evicted from the Crown Court today? Or the jury could vote on a come dine with me method at each stage of the trial)

(7)(4)
JJ

some of the comments demonstrate a lack of understanding of how the bar works these days. No civil practitioner would do a crown court hearing these days. There are always going to be some people who are better than others and some barristers who let the quality down – but these days criminal practitioners work very hard for low pay and even lower appreciation or acknowledgement. Of course there are some excellent quality HCAs out there who also deserve recognition but to blindly ignore the reality of POAs and straw juniors belittles those HCAs who do a good job and those at the bar struggling to get the work kept in house for financial benefit even at the expense of the client. How many murder trials these days are conducted by silk leading a terrified in house advocate who would pass out if asked to take over.

(14)(2)
DC

Right… Must say I don’t remember loads of guys at bar school saying “I’ve been offered pupillage, but I’m going to turn it down and go down the exec route because the pupillage isn’t economically viable.”

(7)(4)
AccBurgerKingFranchise

What is Rivlin’s position if the advocate in question is a legal exec, a solicitor-advocate and “of counsel”?

(7)(0)
Lord Harley of Davidson

Thankfully we have the hybrid that we all aspire to in Lord Harley of Counsel LLB LLM DPhil RVSP IOU RAC RSPCA . In him we have all the self-proclaimed expertise of a solicitor, all the self-expertise of a barrister without any of the professional veneer to get in the way of things.

(11)(0)
Not-Guilty Nigel

There are good and bad in every profession, but I have to say the occurrence of bad barristers in court is much lower than bad solicitor advocates.

When prosecuting I regularly have to lead solicitors by the hand through the process. There’s nothing more likely to make me lose my appetite for my close of play chocolate digestive than a solicitor advocate stumbling through an incoherent speech throwing in evidence that wasn’t adduced at the end of trial.

I pity the client who is stuck with an in house advocate who is basically there to save costs rather than get a job properly done.

(10)(7)
AccBurgerKingFranchise

Yeah, but what if the solicitor is “senior counsel”? How does the digestive slide down then?

(9)(1)
Lord Cockcheese QC LLB LLM SOS MBA DAFUQ ROFL

Fuuuaaark, did anyone notice how huge Arnold looked in Commando? Gains for days…

(10)(0)
mdg

Maybe there should be a handicap like in sport? Burdens changing etc to make it fair.

Barrister – Beyond Reasonable Doubt
Solicitor-Advocate : Balance of probabilities
Legal Exec: Meh… might be.

(12)(2)
37th Earl of Dublin

I am always handicapped by my medals.

I have so many of them that I am weighed down. When you have been decorated for service, you will be able to comment.

But being Senior Counsel means my undoubted talent and ability shines through.

You are only jealous cockwombles.

(9)(0)
Anonymous

because a lowly solicitor like I couldnt cope with the big boy barristers?

please.

(1)(4)
AccBurgerKingFranchise

It’s not that a lowly solicitor like you can’t cope, it’s that the judges willl listen more intently to barristers (even if they are not as good as you). The Rivlin report amply demonstrates the continuing prejudice.

I’m not saying that Rivlin’s criticisms are all wrong, but there is a distinct lack of empirical evidence in the report to back up those criticisms: it’s all very anecdotal. It’s the kind of stuff to which a judge would attach minimal weight if he/she were hearing a case about the relative competence of different types of lawyer.

(6)(1)
Anonymous

absolutely agree.

although, have to say, have found tht judges tend to listen to the person talking the most sense. in the lines of work i do, tht tends to involve knowing the facts more than the law. thts where a solicitor who have lived the case for months (or years) will have the advantage and that is why its far more worthwhile sticking with your solicitor to do the advocacy as long as (1) they know what they are doing (2) they have been in court a few times before; and (3) they feel comfortable doing so

the myth of counsel is just that im afraid – there’s no magic in talking in a concise and clear way.

(5)(1)
AccBurgerKingFranchise

Yes, but for so long as judges (especially at the higher levels) are drawn mainly from the Bar, there will be an inevitable prejudice in favour of barristers.

(1)(3)

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