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The Judge Rules: Why the Law Society won’t stick up for solicitor-advocates

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A Bar Council report flayed solicitor-advocates for being rubbish and Chancery Lane sat on its hands — all because it needs to keep barristers on side in the war to save criminal legal aid

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Any barrister claiming to have time and respect for high court solicitor-advocates is either as rare as the dodo, being disingenuously polite or outright lying.

Implementation of the Courts and Legal Services Act 1990 is still seen as perhaps the darkest day in the history of the bar in England and Wales. That legislation tore up the historic barrister monopoly on higher court rights of audience, allowing into the club the riff raff of any Tom, Dick or Harry solicitor who could pass an exam.

The wounds are still raw a generation later — which is why it is not surprising that the Bar Council’s recently published Rivlin Report into Crown Court advocacy contains such thinly veiled vitriol.

It is only slight exaggeration to summarise the general tenor of the Bar Council-backed report as follows: solicitor-advocates are bumbling idiots, who ramble before judges, introduce inappropriate evidence and generally get on the wicks of esteemed judges up and down the land. They are only marginally less atrocious than legal executives, who, by the way, should be barred from sullying the Crown Courts altogether.

More surprising is that the Law Society — the bloated bureaucracy putatively tasked with promoting, defending and lobbying on behalf of solicitors — is so reluctant to fight the corner of the thousands of high court advocates it counts among its membership.

Illustrating Chancery Lane’s head-down approach to the fusillade of abuse the Bar Council hurled at solicitor-advocates was this comment from a Law Society spokesman to Legal Cheek earlier in the week:

“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.”

Er, sorry? Now that the Law Society is no longer a regulator, isn’t it meant to be somewhat less diplomatic and more robust in defence of its members? Indeed, the Chancery Lane line fell in stark contrast with a highly charged retort launched by the Charted Institute of Legal Executives.

So is it true the Law Society for some reason doesn’t give a monkey’s about solicitor-advocates? No.

However, the Chancery Lane mandarins have been forced to play a political game, the result of which is that they are running scared of offending the Bar Council.

The root cause of society’s reluctance to come out spitting and punching in defence of high court solicitor-advocates lies in the last government’s assault on criminal legal aid.

Justice Secretary Chris Grayling was (and presumably will remain so if he continues in post following the forthcoming general election) hell-bent on streamlining the number of solicitors’ firms contracted to provide criminal legal aid services. It is understood that Ministry of Justice plans will slash the number of firms from a current level of around 1,600 down to about 560.

That wholesale contraction of authorised law firms will not be good for barristers (as The Judge pointed out recently). Streamlining will create mega criminal legal aid factories, which will find it more efficient and financially lucrative to use their in-house Crown Court advocates.

Therefore, criminal barristers are gearing up to go back on strike and re-instate their earlier successful “no returns” policy to briefs.

Under the current system, it is barristers that can bring the criminal courts to a grinding halt. Solicitors run scared of strike action for two reasons: first they fear the Legal Aid Agency will slap them with breach of contract actions; and second, they worry that the competition authorities will also act up.

Independent, self-employed barristers don’t have those concerns. Which means that criminal legal aid solicitors need the bar do be in the front line of this life-and-death battle with the Grayling and his slash-and-burn ministry.

As a result, the pen pushers at Chancery Lane are forced to bite their tongues, allowing the Bar Council open season to fire as many shotgun blasts as it likes at solicitor-advocates. It has doubtless been a cathartic experience for senior members of the bar.

And while the Law Society may have good reason for its diplomacy, solicitor-advocates on the ground might not understand or care about the political subtleties.

In common with all solicitors, they have no choice but to pay the Law Society a tax to keep Chancery Lane on its feet and in a constant supply of tea and biscuits. Solicitor-advocates may wish to get more bang for their buck and demand that Chancery Lane stops being so subservient to the bar.

Previously:

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