Legal Studies Research Findings No. 33Solicitor Advocates in Scotland: The Impact on Clients
Gerard Hanlon and John Jackson
This Research Findings reports the results of one of 3 separate projects forming a study of the impact of the introduction of solicitor advocates in Scotland. The project was designed to examine the impact on clients of legal services, both organisational and individual, and involved a mixture of face-to-face interviews, telephone interviews and postal surveys.
- Solicitors act as gatekeepers to advocacy services. They strongly influence the choice of advocate/solicitor advocate in cases involving organisational clients, and appear to determine the choice in the majority of cases involving individual clients.
- Organisational clients felt that they could control their solicitors and therefore trusted the advice of their solicitors in the area of advocacy services.
- Corporate clients were generally positive towards the idea of using solicitor advocates, believing that it extended the range of choice of advocacy services.
- The advantages of solicitor advocates cited by some corporate clients included their constant availability, detailed knowledge of the case, greater control over the court process, and lower cost. Some, though, had reservations relating to issues of independence and objectivity.
- Trade unions and local authority interviewees had reservations about the introduction of solicitor advocates, the former fearing the diminution of the Junior Bar and the latter questioning how they could obtain the necessary experience.
- The majority of individual clients exercised little control over the cases in which they were involved.
- In approximately 80% of cases studied the solicitor effectively chose the courtroom lawyer.
- The majority of advocate clients and a third of solicitor advocate clients claimed that they were not offered the choice between an advocate and a solicitor advocate.
- Solicitors and solicitor advocates were generally viewed more positively than advocates. The positive attitude towards solicitor advocates may be based on the (possibly false) assumption that they would provide the client-care service that solicitors currently seem to provide.
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 in 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 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 assessed the impact of the introduction of solicitor advocates on the legal profession; the other (reported in this Research Findings) assessed the impact on the clients of legal services. The views of over 200 clients of legal services were gathered in this research, using personal and telephone interviews as well as postal surveys. In particular, the research aimed to examine the extent to which clients were offered a choice between the use of an advocate and a solicitor advocate, the factors which influenced that choice and their views on the 2 types of representation. To understand fully the activities of, and impact made by, solicitor advocates, it is necessary to view the findings from all 3 studies alongside one another. 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.
The study found that organisational clients - generally involved in civil disputes - were increasingly knowledgeable about the legal services market. They appeared to know what they wanted from their solicitors and to police this relationship quite closely.
However, their knowledge about the advocacy market, specifically, was less extensive as they tried to avoid the courts whenever possible because of the cost and uncertainty involved. Hence organisational clients were inclined to rely on their solicitors to choose an advocate or solicitor advocate. Thus, for organisational clients solicitors acted as gatekeepers to the advocacy market. However, organisational clients felt that their solicitors would ensure client interest was paramount in making this decision because of the need to secure client satisfaction to keep repeat business.
All the organisational clients in the research were aware of the option to use a solicitor advocate, although few reported that their solicitor had directly offered them the choice of using such a practitioner. However, in a number of cases clients had discussed the matter in principle with their solicitors.
Only a few organisational clients in the research had used a solicitor advocate. However, by and large, organisational clients were in favour of the reform and felt that it represented a genuine extension of choice. In particular, they argued that solicitor advocates could be as good as advocates if they gained the right experience and that using a solicitor advocate might give a client more control because the solicitor advocate, based in a legal firm, could be more readily available to clients.
Organisational clients felt that using a solicitor advocate (in particular one who was also acting in the capacity of a solicitor) could have a number of advantages: constant availability; more control over the court process because of this availability; detailed knowledge of a case. These clients also argued that there could be real savings in using a solicitor advocate if it reduced the need to use a senior and junior advocate in a case. They rejected the current antipathy to "mixed doubles" (where an advocate and a solicitor advocate appear together in court) as a restrictive practice. It was also suggested that, given the fact that advocates are sometimes unable to represent clients due to cases over-running and so on, a solicitor with a detailed knowledge of the case would be a good alternative as a court room representative, rather than a replacement advocate.
Needless to say, organisational clients also had some worries about the introduction of solicitor advocates. Some clients queried the independence of solicitor advocates. This was especially the case in the area of opinions. It was felt that external bodies may view a solicitor advocate based in the client's firm of solicitors as less independent than a self-employed advocate, thus opinions by solicitor advocates would be questioned more than the opinions of advocates. It was also suggested that solicitor advocates acting in the roles of both solicitor and advocate may be too involved in a case and lose some objectivity.
Trade union clients, in particular, voiced concerns that the introduction of solicitor advocates could lead to a diminution of the Junior Bar, which they currently used, seeing it as reliable and cost effective. Some clients, including local authority clients, also suggested that current ways of working in solicitors' firms would militate against solicitor advocates having the time to gain enough experience in the higher courts to challenge the top advocates.
Unlike organisational clients, individuals are generally "uninformed clients". They rarely shop around to find a solicitor; instead they choose a solicitor largely on the basis of recommendation. This reflects the specialised knowledge - which individuals do not have - entailed in assessing who is a good solicitor and who is not. Added to this is the unfamiliarity with the courts and legal system (an unfamiliarity that was particularly noticeable in the case of civil clients).
Most of the individual clients felt rather helpless in their dealings with their legal representatives. By and large, they somewhat uncritically accepted the advice they were given. This meant that in the great majority of cases, solicitors, once again, were the gatekeepers to the advocacy market, effectively choosing who would represent the client in court. Indeed, the research found that awareness of solicitor advocates and the option to use a solicitor advocate or an advocate was limited amongst individual clients. In particular, the majority of advocate clients and a third of solicitor advocate clients said that they had not been offered a choice between an advocate and a solicitor advocate. However, unlike organisational clients, individuals were shown to have very little control over solicitors and had even less control over the advocate or solicitor advocate. This meant that, potentially, solicitors could guide people to use solicitor advocates from their own firm, or that solicitor advocates could recommend themselves to clients and take cases for which they may not be the best person. The research suggests that individual clients would be vulnerable to such potential practices.
Generally, the views of individual clients were supportive of the introduction of solicitor advocates. However, this appears to reflect the fact they want to have more meetings with their legal representatives and wish for a better "bedside manner" from their lawyers. At present solicitors appear to provide this type of service more than advocates. But if solicitor advocates were to be successful they may end up working in a similar manner to advocates and hence meet clients less, miss cases due to others over-running, and so on, again resulting in uninformed clients being unhappy, vulnerable and dissatisfied. The introduction of solicitor advocates will do little to alleviate such a situation as individual clients have not got the tools to exercise effectively the choice that has been given to them. In short, they cannot use the market to ensure that professionals provide client satisfaction.
This study suggests that there is a potential market for solicitor advocates as the majority of both organisational and individual clients were positive about aspects of the service they provided. However, it was clear that the extent to which clients were informed about the legal process was an important factor in determining whether they were able to make effective use of the choices available to them in the advocacy market, or at least rely on effective choices being made on their behalf by solicitors. This generally meant that organisations were better placed to take advantage of any increased choice. For both groups, however, solicitors acted as gatekeepers to the advocacy market and, as such, solicitors were likely to play an important part in determining the use of solicitor advocates and the future of solicitor advocacy.
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 quantitative, part qualitative study (summarised in this Research Findings) 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 the research. 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) S olicitor Advocates in Scotland: A Research Overview (Report and Legal Studies Research Findings No. 35)
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