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Solicitor Advocates in Scotland: A Research Overview - Research Findings

DescriptionAn overview of earlier research concerning solicitor advocates and their work.
ISBN
Official Print Publication Date
Website Publication DateNovember 23, 2000
Legal Studies Research Findings No. 35Solicitor Advocates in Scotland: A Research Overview

Alison Platts

This Research Findings provides an overview of a programme of 3 research projects examining the impact of the introduction of solicitor advocates in Scotland. The overview draws together the findings of these studies to provide an overall assessment of the impact of the introduction of solicitor advocates and the extent to which the policy objectives of extending consumer choice in the market for legal services have been met. The research on which this overview is based was carried out by Gerard Hanlon, Debbie Headrick, John Jackson and Karen Kerner. Further details are included on the back page of this document.

Main Findings

  • A number of factors were identified as affecting the way solicitor advocates work: the attitudes of instructing solicitors; the pressure of other fee-paying business; the structure of legal practice work; the nature of civil and criminal litigation; the views of clients.
  • The role of instructing solicitors was crucial to the use of solicitor advocates as they effectively made the choice of court-room representative for both individual and organisational clients.
  • The development of a "mini Bar" in Glasgow was seen as an important outcome of the reform, with implications for client choice.
  • None of the groups in the research wished to see the Bar diminished and fusion of the profession was not seen as likely, although a more diverse and fluid profession - incorporating different models of solicitor advocacy - was seen as a possibility.
  • The impact on client choice had been limited and was often affected by the instructing patterns of solicitors (including solicitor advocates) and the working practices and locations of solicitor advocates, as well as client awareness. Individuals, in particular, were not well placed to exercise effectively the choice available to them.
  • The short-term impact on the shape of the legal profession had been limited, largely because of the small number of solicitor advocates.
  • Allowing "mixed doubles" was seen as an important change which would promote solicitor advocacy.
  • Client views suggested there was scope for solicitor advocacy to expand.
  • The research identified the potential for further change in the legal services market (and thus greater impact on client choice) if more solicitors gained extended rights of audience.

Introduction

Under Section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, suitably qualified solicitors (solicitor advocates) were granted rights of audience in the Supreme Courts in Scotland as well as the House of Lords and the Judicial Committee of the Privy Council. Prior to this, solicitors involved in actions in those courts had been obliged to instruct an advocate to appear on behalf of their clients at hearings. By extending rights of audience to solicitors the then Government aimed to increase choice for consumers of legal services while at the same time maintaining quality of service.

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 programme consisted of 3 separate studies carried out on a collaborative basis. One study investigated the characteristics of solicitor advocates, the cases in which they were involved, and their impact on court business. Of the other 2 studies, one assessed the impact of the introduction of solicitor advocates on the legal profession; the other assessed the impact on the clients of legal services.

The Research Overview, which is summarised in this Research Findings, draws together the findings from the 3 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.

Uptake of extended rights of audience

The first solicitor advocates (i.e. solicitors with extended rights of audience) were admitted in May 1993 and as at August 1996 (representing those solicitor advocates included in this study) there were 87 solicitor advocates in Scotland, 32 with extended rights of audience in the Court of Session, 53 with extended rights of audience in the High Court and 2 with extended rights in both courts. This represented approximately one per cent of solicitors with a practising certificate at that time. The research found that after the early intakes there had been something of a downward trend in the numbers obtaining extended rights of audience, although this trend had been less marked on the civil side.

With the exception of those working in the Crown Office and Procurator Fiscal Service, all solicitor advocates worked in private practice, all but 2 were partners, and the majority were male and aged between 41 and 50; the proportion of female solicitor advocates was just a little lower than the proportion of female partners in the profession as a whole. The research concluded that this pattern was largely a result of the experience required to qualify to be a solicitor advocate and the type of work in which they were likely to be involved to find the qualification useful. The research also noted the geographical spread of solicitor advocates, with criminal solicitor advocates concentrated in Glasgow and civil solicitor advocates in Edinburgh. This was seen to be explained by the concentration of relevant work in these areas and the location of the various courts.

There were few complaints about the qualification requirements for solicitor advocates and none reported having difficulty qualifying. Advocacy was one area, however, where those interviewed for the research would have found more training useful.

The work of solicitor advocates

In the majority of cases solicitor advocates in private practice who took part in the research had experienced some change in their work since obtaining extended rights of audience 1. Criminal solicitor advocates, however, had experienced more change than their civil colleagues. On a general level, the majority of solicitor advocates reported that they had increased the amount of time they spent on Supreme Court cases. However, criminal solicitor advocates had increased their advocacy work while civil solicitor advocates had tended to increase their drafting work. While criminal solicitor advocates were more likely to report a significant change in the nature of their business, civil solicitor advocates were more likely to report occasional use of their new rights, within the context of a largely unchanged case load.

The research identified 5 models of private practice solicitor advocacy: the status holder, the occasional user, the in-house counsel, the specialist consultant and the agency advocate - the latter 3 being concerned mainly or only with Supreme Court advocacy work. Thus, a number of solicitor advocates had begun to develop new ways of working within the legal services market.

Various factors affected the way solicitor advocates worked. Important factors identified by the research were the willingness of other solicitors to instruct solicitor advocates to carry out appearance work, the pressure of other fee-paying business, the structure of legal practice work, the nature of civil and criminal litigation, and the views of clients, particularly corporate clients.

Impact on the Court

The research found that the impact of solicitor advocates on the Supreme Courts has been limited in terms of the number of appearances made, although the number of appearances had been much greater in the High Court and, in particular, the High Court in Glasgow, than in the Court of Session. During the research period, as many as 10 per cent of first instance cases in the High Court had involved a solicitor advocate, compared with less than 2 per cent of cases in either the Petition or General Departments in the Court of Session. The exception to this was in the Commercial Court where appearances by solicitor advocates accounted for a third of all their cases in the Court of Session.

The research also found that a small number of solicitor advocates accounted for a significant proportion of appearances in both the High Court and the Court of Session.

Solicitor advocates, however, were not found to have had an impact on the characteristics and conduct of cases. Although there was some concern voiced by some advocates and judges about the quality of advocacy undertaken by solicitor advocates, others acknowledged that the quality varied as it did amongst advocates.

Most solicitor advocates were keen to work with counsel, but were prevented from doing so by the ban on "mixed doubles" (ie, advocates and solicitor advocates appearing together in the same court-room team) imposed by the Faculty of Advocates. This would have allowed solicitor advocates to learn their trade and build their reputations in the same way as junior counsel. In addition, such mixed teams were found to be very appealing to organisational clients who felt they would be cost effective and represent the best mix of legal skills.

Impact on the clients

Organisational clients were aware of their option to use a solicitor advocate - although few had done so. In contrast, private individuals displayed very limited knowledge of the options available and were unable to exercise effectively the new choice available to them in terms of court-room representation. The role of instructing solicitor was crucial for both individual and organisational clients. In both cases the instructing solicitor effectively made the choice as to court-room representation, although in the case of organisational clients, the clients were aware of what was being done on their behalf and had often been involved in some broad discussions about the use of solicitor advocates.

The research found that clients - both organisational and individual - were generally receptive to the idea of using solicitor advocates, and particularly where this was their own solicitor, although some organisational clients expressed some concerns about objectivity and independence. Nevertheless, the views of instructing solicitors as the main decision makers were often more important in determining their actual use. Instructing solicitors cited a number of factors which they took into account in selecting a court-room representative; perhaps most significant was the importance of reputation. Reputation was also important to organisational clients who were cautious about using "untested" court-room representatives.

Not surprisingly, the research found that solicitors with extended rights of audience or with colleagues with extended rights of audience were more inclined to recommend the use of a solicitor advocate. Indeed, there was some concern that the instructing practices of some solicitor advocates (representing their own clients, using in-house counsel, or another solicitor advocate selected from a restricted group of firms) actually meant that client choice may have been limited rather than extended as a result of the reform, or that choices made on their behalf were not always in the client's best interests. In this respect, the development of a "mini Bar" in Glasgow (a group of solicitor advocates who regularly instructed each other rather than counsel) was seen as a significant outcome of the reform.

Impact on the shape of the legal profession

The research found that the short-term impact on the shape of the legal profession had been limited, largely because of the relatively small number of solicitors who had gained extended rights of audience, but also because of the views and practices of instructing solicitors and clients of legal services and the existing ban on mixed doubles.

One impact of potential significance was the effect that solicitor advocates were having on the Junior Bar. It was noted that some junior advocates had lost business to solicitor advocates and that a continuation of this trend could lead to a diminution of the Junior Bar and, in the long term, the Senior Bar. The research highlighted the possible danger of an erosion of the Bar leading to a situation where advocacy skills were concentrated in law firms. Law firms traditionally have strong links with clients as opposed to the Bar which operates a "cab rank" rule (whereby advocates are obliged, with some exceptions, to take any instructions offered to them, meaning that all advocates, in theory, are available to all clients). Such a development was seen as potentially damaging as clients would not have access to all solicitor advocates and client choice would thus be limited. However, none of the groups in the research wished to see the Bar - which continued to be valued for its expertise and independence - diminished, and fusion of the profession was not seen as likely. A more diverse and fluid legal profession encompassing a range of different models for providing advocacy services was, however, seen as a possibility.

Overall, the research suggested that there was the potential for further change in the future if more solicitor advocates obtained extended rights of audience and developed practices with an emphasis on Supreme Court advocacy work. This, however, would depend on a number of factors such as the views of solicitors, solicitor advocates and their clients, as well as the future of the ban on mixed doubles.

Overall impact and achievement of policy aims

At the time of the research, the overall impact of the introduction of solicitor advocates has been limited, although this has been greater on the criminal side than the civil side. There is, though, the potential for further change, particularly given the views of clients suggesting that they are open to the idea of using solicitor advocates. Although there are greater numbers of practitioners available to carry out Supreme Court representation work, factors such as client awareness (in the case of individuals), the role of instructing solicitors, and the working practices and locations of solicitor advocates all mean that the reality of extended client choice may be more restricted than it might appear. It is also possible client choice could become more restricted as a result of the reform; for example, if solicitor advocates further develop the practice of instructing each other rather than members of the Faculty of Advocates, or if advocacy - particularly civil advocacy - skills become concentrated in large law firms which are free to pick and choose their clients.

Overall the research concludes that, although the impact of the reform had been limited to date, there had been several developments which, if they continued, could lead to solicitor advocates having a significant impact on the market for legal services, and thus on client choice and the legal profession.

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 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 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. More than 400 respondents took part in this research. The research was carried out by Dr Karen Kerner, research consultant.

Findings from each study, plus a Research Overview (summarised in this Research Findings), 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)

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Footnote
1 With the exception of one who had been appointed an Advocate Depute, those solicitor advocates working in the Crown Office and Procurator Fiscal Service were unable to exercise their new rights of audience and thus, in examining the activities of solicitor advocates, the research concentrates on those in private practice.