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Solicitor Advocates in Scotland: The Impact on the Legal Profession - Research Findings

DescriptionExamines the introduction of solicitor advocates and the impact on the legal profession.
ISBN
Official Print Publication Date
Website Publication DateNovember 23, 2000
Legal Studies Research Findings No. 34Solicitor Advocates in Scotland: The Impact on the Legal Profession

Karen Kerner

This Research Findings reports the results of one of 3 separate studies in a programme of research examining the impact of the introduction of solicitor advocates in Scotland. The study examined the impact on the legal profession, and included surveys of solicitor advocates, solicitors, advocates and judges.

Main Findings

  • Only a small minority of solicitors in Scotland had gained extended rights of audience (approximately 0.5% in 1996), and interviewees from all branches of the legal profession expected this to remain the case.
  • Four types of representation by solicitor advocates were identified: sole representation, mixed representation, in-house counsel representation, and specialist advocate representation.
  • Amongst solicitor advocates, the majority of criminal practitioners were happy to instruct each other, but civil practitioners did not feel that this would be appropriate.
  • Solicitor advocates in private practice could be characterised in a number of ways: as status holders; occasional users; in-house counsel; specialist consultants; and agency advocates.
  • With just one exception, solicitor advocates reported that they always offered clients the choice of an advocate or a solicitor advocate. In contrast, solicitors indicated that they generally made the choice on behalf of clients.
  • Most solicitor advocates thought that the reform genuinely enhanced client choice. Advocates and judges, however, were concerned that this might be so in theory but not in practice.
  • A relaxation of the ban on "mixed doubles" (i.e. advocates and solicitor advocates appearing together at the same hearing) was seen as a change that could make a significant impact on the advocacy market.
  • The emergence of a "mini Bar" in Glasgow was identified as an important and unintended consequence of the reform.
  • The Bar continued to be used and valued by respondents and fusion of the legal profession was not seen as likely in the near future.

Introduction

Under Section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Scottish solicitors are now permitted to acquire rights of audience in the Supreme Courts, including the Court of Session, the High Court of Justiciary, the House of Lords and the Judicial Committee of the Privy Council. The policy was designed to permit greater freedom to the general public to choose practitioners to represent them in the higher courts, and was one of a range of measures designed to further the then Government's policies of increasing competition in the provision of legal services and enhancing client choice. Designed to end the traditional monopoly of the Faculty of Advocates in the Supreme Courts, these policies aimed at allowing clients to obtain the best possible legal representation relative to the circumstances of their case and to permit the broadest and most effective use of the advocacy skills existing in the Scottish solicitor profession.

Research was commissioned to assess the impact of the introduction of solicitor advocates and evaluate the extent to which the reform had given the consumer of legal services the widest possible choice of representative from amongst legal advisers, consistent with the efficient administration of justice.

The research consisted of 3 separate studies which were carried out on a collaborative basis. One study aimed to investigate the characteristics of solicitor advocates, the cases in which they were involved, and their impact on court business. Of the other 2 studies, one was designed to investigate the impact that the introduction of solicitor advocates had had on the clients of legal services, the other (reported in this Research Findings) assessed the impact on the legal profession. This latter study, involving approximately 400 research respondents, consisted of surveys of different groups within the legal profession (solicitor advocates, solicitors, advocates and judges) and aimed to consider the experiences of those professionally affected by the introduction of solicitor advocates, the emerging roles for solicitor advocates and their impact on the future shape of the legal profession. However, to understand fully the activities of, and impact made by, solicitor advocates, it is necessary to view these findings alongside those of the other 2 studies in the research programme. Thus, a research overview draws together the findings of the 3 individual studies and provides an overall assessment of the impact of the introduction of solicitor advocates in Scotland and the extent to which the policy objectives - increasing client choice while maintaining quality of service - had been met.

Who are the solicitor advocates?

At the time of the research just 0.5% of the solicitor profession had gained extended rights of audience. As at August 1996 there were 87 solicitor advocates in Scotland, 32 civil, 53 criminal and 2 dually qualified. Almost 90% were male and of those working in private practice all but 2 were partners (14 criminal solicitor advocates worked in the Crown Office and Procurator Fiscal Service). Civil solicitor advocates were concentrated in Edinburgh, while criminal solicitor advocates were concentrated in Glasgow. The majority of civil solicitor advocates were in firms of over 5 partners while their criminal counterparts were in smaller firms of 2 to 4 partners.

Solicitor advocates in private practice were either members of a court department in a firm or of a specialist litigation practice. Civil solicitor advocates tended to specialise in particular areas of civil law (e.g. personal injury or commercial law) while criminal solicitor advocates dealt with all types of criminal law.

Becoming a solicitor advocate

Civil and criminal practitioners gave slightly different reasons for becoming a solicitor advocate. Civil solicitor advocates stated that they had gained the qualification in order to expand the services available to their clients as well as for their own personal satisfaction. Criminal solicitor advocates had sought extended rights of audience in order to enhance their own careers and to do something different and more interesting. The majority thought that obtaining extended rights of audience would influence their careers and, along with managing partners, they believed that having a solicitor advocate would influence the development of firms.

All groups interviewed agreed that becoming a solicitor advocate would remain a rare occurrence, mainly because the majority of solicitors did not deal with Supreme Court cases on a regular basis or because the pressure of other business would prevent solicitors from pursuing the qualification.

Qualification and training

In Scotland, any solicitor who wishes to acquire extended rights of audience must first satisfy the Law Society Council about his/her professional conduct and reputation and his/her competency in the practice and procedure of the Supreme Courts. They must then attend a course, civil and/or criminal, and pass an examination.

The pass rates for solicitors seeking extended rights of audience were 84% for civil candidates and 95% for criminal candidates. With the exception of preparing for and taking the written examinations and presentation of pleadings, none of the solicitor advocates reported any major difficulty in qualifying (the high pass rate would tend to support this). There were, though, a number of criticisms of the requirements of the course: the utility of the 'sitting in' requirement was questioned, particularly by civil practitioners, and a common suggestion was for more advocacy training to be included in the course. Advocates and judges expressed some concerns about solicitor advocate training; advocates in particular thought the training was inadequate and wished to see more attention paid to advocacy, protocol and discipline.

The work of solicitor advocates

All the solicitor advocates indicated some change in their work since gaining extended rights of audience, although this was most marked for criminal solicitor advocates. Civil solicitor advocates were more likely to report an increase in drafting work while criminal solicitor advocates were more likely to report an increase in appearance work. In particular, 4 criminal solicitor advocates were working as full-time High Court advocates in Glasgow. However, for the majority of both civil and criminal practitioners, the use of extended rights was an occasional occurrence and most continued to work in much the same way as they had before obtaining these rights.

The research identified 4 patterns in the use of extended rights of audience:

  • the same lawyer worked all the way through a case from preparation to hearing (sole representation);
  • the solicitor advocate worked as a solicitor in preparing the case and shared part of the Supreme Court work with one or more advocates (mixed representation);
  • the solicitor advocate appeared solely as an advocate for Court appearances for solicitors within the same firm (in-house counsel).
  • Criminal defence solicitor advocates were more likely than civil solicitor advocates to employ a fourth pattern, namely
  • the solicitor advocate appeared solely as an advocate for court work for other external firms' clients (specialist advocacy representation).

The majority of solicitor advocates wanted to work with counsel, appearing together at hearings. They thought this would provide the best team for clients, comprising a specialist pleader and a case specialist, as well as allowing them to learn from more experienced advocates. However, the Faculty of Advocates has banned such teams (known as "mixed doubles"). Whilst not all were opposed to the idea of mixed doubles, advocates and judges nevertheless felt that the different disciplinary rules made the arrangement unworkable. The prohibition of mixed doubles maintained by the Faculty of Advocates had apparently fostered the emergence of specialist consultants who had formed what one advocate termed "an alternative Bar" in Glasgow. A relaxation on this ban was seen as a change which could make a significant impact on the advocacy market as it would allow solicitor advocates to gain experience and establish a reputation, while also representing an attractive and cost effective legal team for clients.

Not all solicitor advocates had appeared at court and the majority of those who had, had only appeared a small number of times. Those that had appeared reported being treated well by advocates and the judiciary. Advocates and judges had mixed views on the solicitor advocates who had appeared, stating that there was a wide variability in solicitor advocate skills (it was acknowledged by some that this was also the case with advocates), although it was generally thought that none of the solicitor advocates were as effective as advocates of equal length of experience in the legal profession. Although only a small number of specific problems were cited, the appearance of solicitor advocates had given rise to some concern about issues of discipline and protocol. The different Codes of Conduct for advocates and solicitor advocates were seen as problematic, particularly in relation to the different procedures for dealing with disciplinary matters.

The use of extended rights of audience

The research found that solicitor advocates could be characterised in a number of ways depending on the use they made of their extended rights of audience. About 15% of the solicitors holding extended rights qualifications in this sample had not, at the time of research, exercised their extended rights of audience. For these status holders, holding the qualification was apparently significant in itself. The great majority of solicitor advocates were occasional users of their extended rights of audience. Four specialist civil firms (3 corporate practices and one personal injury practice) had reorganised their litigation practices so they had full-time in-house counsel. The partners who served as their firms' in-house counsel were instructed by other solicitors within the firm for Supreme Court business. In some cases solicitor advocates were used as specialist consultants, as well as serving as in-house counsel for their own firms. They were regularly instructed instead of counsel for High Court work by solicitors outwith their own firms. They were all criminal defence practitioners in Glasgow and were very experienced lawyers. Another criminal solicitor advocate had become established as an agency advocate in the High Court, operating a referrals and opinion practice.

At the time of the research one Procurator Fiscal solicitor advocate had been appointed as an Advocate Depute (High Court prosecutor). This was the first Advocate Depute to be drawn from the ranks of solicitor advocates.

In addition to the above, the research also identified a small number of "cross-over" lawyers, i.e. solicitor advocates who had left the solicitor profession to join the Bar and advocates who had left the Bar to join firms as in-house counsel.

Patterns of instruction

Solicitor advocates said that it was the client who dictated the choice of representative, but surveys of instructing solicitors suggested that it was the instructing solicitor, acting alone or in conjunction with another solicitor, who customarily made the decision as to who would be instructed for Supreme Court representation. Relatively few instructing solicitors had ever instructed a solicitor advocate, and most preferred to rely on traditional patterns of instruction.

Managing partners and instructing solicitors all rated reputation, a previous relationship and availability as the most important factors in the choice of Supreme Court representatives. The importance of reputation and familiarity as factors in this decision tended to favour established advocates. Both instructing solicitors in private practice and instructing employed solicitors, but not managing partners, thought that cost-effectiveness was an important reason to instruct a solicitor advocate, despite the fact that they had had only very limited experience in doing so.

Solicitors in the west of Scotland were much more likely than solicitors elsewhere to instruct a solicitor advocate. Amongst solicitor advocates themselves, the majority of criminal practitioners were happy to instruct each other (on a regular basis in the case of a group of Glasgow practitioners), while civil practitioners could not imagine doing this. Because of these patterns of instruction, a number of research respondents spoke of the development of a "mini Bar" in Glasgow, carrying out work traditionally undertaken by members of the Faculty of Advocates. However, amongst both civil and criminal solicitor advocates, the majority of solicitor advocates still regularly instructed counsel.

Client choice

Most solicitor advocates generally agreed that the choice made available to clients had increased, but advocates said that, although in theory client choice has been enhanced because of the increased number of Supreme Court representatives, in practice the choice made available to clients had, in some circumstances, actually been lessened. This lessening of choice was seen as a consequence of either encouraging a client to accept an "in-house" advocate as a matter of course, or by making a practice of instructing only a limited number of solicitor advocates for High Court appearance work, rather than employing any of a large number of different counsel, as had become common in the west of Scotland. Even amongst solicitor advocates themselves there was some recognition that the extended choice could be more apparent than real, depending on how informed the client was, the extent to which the instructing solicitor presented clients with a choice (whether or not they were solicitor advocates), and the extent to which solicitor advocates wished to use their new rights of audience.

A qualified choice

The question underlying this research programme has been whether or not the policy of extending rights of audience in the Supreme Courts to qualified solicitors has increased consumer choice in purchasing advocacy services. The answer, from the perspective of the solicitor advocates, the instructing solicitors and the managing partners of private practice firms, was a qualified yes. From the perspective of most of the judges and nearly all the advocates, the answer was a qualified no.

The impact of extending rights of audience

The research reported that the impact on the legal profession of the introduction of solicitor advocates had been less extensive than most of the respondents had anticipated. The number of solicitor advocates was too limited to have made a major difference, although the emergence of specialist solicitor advocates in the west of Scotland, the emergence of a mini Bar in Glasgow and the decision to appoint the first Procurator Fiscal Advocate Depute 1 had been important ramifications of the policy. The policy had been most important to those solicitors who had chosen to seek extended rights of audience.

Impact on the Bar

The advocates in this research sample seemed to be relatively unaffected by the appearance of solicitor advocates, although some junior counsel said they had lost some drafting work and it was pointed out that, at a localised level in the West, some routine work for junior counsel had been taken over by solicitor advocates. However, the introduction of solicitor advocates was reported to have had a more general impact on the Faculty of Advocates as a whole. A number of judges, advocates and solicitor advocates reported that the reforms had led to improvements in the recruitment and training of advocates, in the marketing of faculty services and in aspects of client care.

Impact on instructing solicitors

The impact on instructing solicitors appears to have been minimal with few having chosen to gain extended rights of audience and few having instructed a solicitor advocate.

Impact on legal firms

Most solicitor advocates reported that there had been some reallocation of work within their firm to allow them to exercise their new rights of audience. In a small number of firms there had been a more significant reorganisation of duties to make full use of their solicitor advocates. In a number of cases the solicitor advocate was operating as a full-time in-house counsel or as a specialist solicitor advocate consultant providing advocacy services to external firms as well as their own firm. Firms with and without solicitor advocates reported considering how to respond to the possibilities that the introduction of solicitor advocates had opened up. The role of firms in encouraging their members to seek qualifications as solicitor advocates, in accommodating those with the qualification, and in using solicitor advocates was seen as important to the future development of solicitor advocacy.

Impact on the future shape of the legal profession

The small number of solicitor advocates qualified to date have not had a great impact on the shape of the legal profession. Instructing solicitors still strongly supported the use of the Bar, and all the solicitor advocates continued to value the Bar. There had, though, been some diversification within the solicitor profession with different models of solicitor advocacy practices being established. This research picked up on current developments and it will be interesting to see how these proceed in the coming years. The roles of firms in encouraging, accommodating and using solicitor advocates will be crucial as will the role of instructing solicitors since they appear to act as gatekeepers to the advocacy market. Significantly, though, none of the respondent groups said they thought that the introduction of solicitor advocates would lead to the demise of the Bar or to fusion of the profession, at least not in the near future.

About this Study

The Legal Studies Research Group of The Scottish Office Home Department (now the Scottish Executive Justice Department) commissioned a research programme to investigate the impact of the introduction of solicitor advocates and, specifically, the extent to which the aims of the legislation were being met.

The research comprised 3 separate studies, with fieldwork carried out from mid 1995 to 1997:

  • A fact finding study focusing on the characteristics of solicitor advocates and the nature of their work. This involved the collection of data from court and SLAB records, focusing on 3468 Supreme Court cases concluded between September 1994 and August 1996, and a postal survey of solicitor advocates. The study was carried out by Debbie Headrick, formerly of the Scottish Office Central Research Unit.
  • A part qualitative, part quantitative study examining the views and experiences of over 200 clients of legal services, both individual and corporate, using postal surveys and personal and telephone interviews. This project was undertaken by Professor John Jackson, Queen's University of Belfast and Dr Gerard Hanlon, King's College, London (formerly of Sheffield University).
  • A part qualitative, part quantitative study (summarised in this Research Findings) investigating the views and experiences of various groups within the legal profession (advocates, solicitors, judges, and solicitor advocates) and involving personal and telephone interviews and postal surveys. A total of 401 respondents took part in this research (172 of whom were interviewed, the remainder took part in postal questionnaires). The research was carried out by Dr Karen Kerner, research consultant.

Findings from each study, plus a Research Overview, have been published by The Scottish Executive Central Research Unit (SECRU). The relevant publications are:

Hanlon, G. and Jackson, J. (2000) Solicitor Advocates in Scotland: The Impact on Clients (Report and Legal Studies Research Findings No. 33)

Headrick, D. (2000) Solicitor Advocates in Scotland: A Statistical Analysis (Report and Legal Studies Research Findings No. 32)

Kerner, K. (2000) Solicitor Advocates in Scotland: The Impact on the Legal Profession (Legal Studies Research Findings No. 34, based on an unpublished report to the Scottish Executive)

Platts, A. (2000) Solicitor Advocates in Scotland: A Research Overview (Report and Legal Studies Research Findings No. 35)

If you wish further copies of this Research Findings or have any enquiries about the work of CRU, please contact us at:

Scottish Executive Central Research Unit
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EDINBURGH EH11 3XA

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This document (and other CRU Research Findings and Reports) and information about the work of CRU may be viewed on the Internet at http://www.scotland.gov.uk/cru/

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Footnote
1 Advocate Deputes, who prosecute in the High Court, were previously chosen from the ranks of the Faculty of Advocates.