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

Avatar photo

By Judge John Hack on

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


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