Up there with the best

Twenty years ago, the first solicitors were granted extended rights of audience in the High Court of Justiciary and the Court of Session. The occasion was marked recently with a reception co-hosted by the Law Society of Scotland and the Society of Solicitor Advocates in the Signet Library.

Anniversaries are occasions to look back and to look forward. Solicitor advocates in Scotland had a difficult birth. Mrs Thatcher’s Conservative Government came up with the idea in the late 1980s as part of wider changes to the legal profession in England & Wales, on the premise that this would extend choice and introduce competition into the legal marketplace.

Not for the first time (or the last), concepts developed for the situation south of the border came north. There was no obvious demand at the time for more advocates, and no widespread enthusiasm among the solicitor profession. The legislation to amend the Solicitors (Scotland) Act 1980 was tagged on to a Law Reform (Miscellaneous Provisions) (Scotland) Bill. The clauses dealing with solicitor advocates received a hostile reception in the House of Lords from Court of Session judges, concerned about disciplinary matters and the danger of lowering standards of pleading in the superior courts. The bill, with amendments, became the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. The Society and the Lord President of the day, Lord Hope, then set about drawing up the scheme of rules and codes of conduct which were to govern the qualification of solicitors and their activities in practice.

The difficulties of the gestation period proved not to be a deterrent. They may even have acted as a spur. Once the legislation was enacted, leading solicitors were among the very first to come forward to qualify. The chance for experienced solicitors to pit their wits against the best of the bar, plus the extended business opportunities presented, drew quality candidates. Among the criminal practitioners were such well known names as Joe Beltrami, Murray Macara and Maurice Smyth, while the civil group included highly respected solicitors such as David Williamson, Peter Anderson and Frank Maguire.

Unfounded fears

Relations with the Faculty of Advocates got off to a difficult start. Unlike the situation in England, where the first solicitor advocate appeared as junior to a leading QC, the Dean of Faculty of the day imposed a ban on so-called mixed doubles, which was to last until 2008. However, while there may have been institutional friction, at an individual level solicitor advocates found they were generally accepted by bench and bar alike. Lord Hope led the way, as indeed have all his successors as Lord President.

Acceptance was easier because standards were high. From the start, the Society involved judges and senior members of Faculty in the training and assessment programmes. These relationships have continued through the years. Candidates are left in no doubt about the standards they are expected to achieve and maintain in practice.

Other concerns have also melted away. Rather than push the Faculty of Advocates into decline, numbers of advocates have increased alongside the growing number of solicitor advocates.

Solicitor advocate numbers have grown steadily rather than spectacularly. There are roughly similar numbers of civil and criminal practitioners. At certain times more criminal solicitors have come forward; at others, more civil practitioners. There are still only a very few solicitors with rights to appear in both the High Court and the Court of Session, reflecting the increasing specialisation in the profession as a whole.

Track record

Undoubtedly, solicitor advocates have been very successful in certain fields. They have been particularly successful in developing a market in the High Court in Glasgow and in the Criminal Appeal Court. On the civil side, a number of firms have recognised the benefit of being able to offer a full client service, including representation in the highest courts. Firms such as Brodies, bto, HBM Sayers, Simpson & Marwick and Thompsons now have substantial stables. Solicitor advocates have appeared in the Privy Council and the Supreme Court. Craig Connal QC, now dual qualified in England, was recently named as solicitor advocate of the year by the Law Society of England & Wales.

“Rather than push the Faculty of Advocates into decline, numbers of advocates have increased alongside the growing number of solicitor advocates”

It has not all been plain sailing. The low point, without doubt, was the Woodside v HM Advocate case in early 2009. The appellant challenged his conviction for murder in a trial which had taken place in 1998. Some of his grounds of appeal related to the handling of his defence by the solicitor advocates who had represented him during the trial – a so-called Anderson appeal. Despite rejecting the appeal on all grounds, the appeal judges criticised the solicitor advocates by name (not normally done even in successful Anderson appeals) and went on to express wider concerns about representation by solicitor advocates.

As a result of the outcry which followed, the Scottish Government appointed Ben Thomson to carry out a review. His report, which was published in early 2010, argued that difficulties were principally the result of the differences in the way solicitors and advocates qualify and the different disciplinary mechanisms which apply. He recommended that qualification and disciplinary procedures were unified. Subsequently, the Scottish Government has given a pretty clear indication that it does not intend to follow through with the recommendations.

One of the problems the review exposed was the lack of a channel of communication between the court and solicitor advocates collectively, unlike that which exists between the bench and the Faculty of Advocates. The judges have all practised at the bar and remain members of Faculty after taking their seats on the bench. There is a greater opportunity for problems to be resolved informally before they have to be aired in public. There remains a desire among many solicitor advocates to see some sort of system created which could defuse any future problems before they explode, as they did in Woodside.

Relatively few solicitor advocates have become Queen’s Counsel, and statistics from recent application rounds have shown that only a small number apply each year. There are therefore far fewer solicitor advocate QCs proportionally than Faculty QCs. Those solicitor advocates who have taken silk include, on the civil side, the late David Williamson, Craig Connal, George Moore and construction law specialist Lindy Patterson. On the criminal side we have Murray Macara, Pat Wheatley, John Scott, Jim Keegan, Alex Prentice and Lord Advocate Frank Mulholland. Frank Mulholland also has a very significant place in the history because he was the first solicitor advocate to be appointed as an advocate depute by the then Lord Advocate, Lord Mackay of Drumadoon. Indeed, it was in Crown Office that the mixed doubles rule began to disintegrate, with advocates and solicitor advocates working side by side in the prosecution of serious crimes.

Changing needs

Looking forward, the future for specialist advocacy, whether performed by solicitor advocates or members of the Faculty of Advocates, is uncertain. The Scottish Government’s proposals for court reform will, if implemented, see a large-scale reduction in the number of cases, both civil and criminal, in which lawyers with extended rights of audience have the exclusive right to appear. In practice, the requirements for specialist advocacy skills are changing.

“Both solicitor advocates and advocates are very concerned that the Scottish Government’s current proposals will see a dilution in the quality of decision making, if fewer and fewer cases are dealt with at the highest level and without the benefit of expert representation”

Twenty years ago, almost all advocacy was conducted orally, with judges laboriously writing down the submissions of the advocates and solicitor advocates appearing before them. Now there is far greater emphasis on written submissions, enabling the oral part of the argument to focus on the most important aspects. Oral advocacy remains a vital element, however, because it is only in the exchanges between judges and pleaders that the full complexion of the arguments presented can be properly explored. It is these exchanges which enable judges to test the essentials of the debate and arrive at their conclusions.

Both solicitor advocates and advocates are very concerned that the Scottish Government’s current proposals will see a dilution in the quality of decision making, if fewer and fewer cases are dealt with at the highest level and without the benefit of expert representation. There is also widespread concern that ordinary citizens will be deprived of the right to expert representation, especially in cases involving institutions and the state, both of which will continue to afford top-quality representation.

As part of its role to support solicitor advocates, the Society of Solicitor Advocates has made it easier than ever to instruct a solicitor advocate. By completing a simple form on the SSA website, www.solicitoradvocates.org, solicitors can alert all members of the SSA to the availability of instructions. The SSA also runs courses in advocacy in association with the National Institute of Trial Advocacy. The next one will be in September.

Change always raises problems and concerns. Whatever the future court landscape, there will be a continuing need for specialist advocacy and representation. Solicitor advocates will be a part of that landscape.

How do you become one?

There are currently 167 civil and 149 criminal solicitor advocates, including eight with extended rights of audience in both categories. Three of the civil and six of the criminal solicitor advocates have been appointed Queen’s Counsel.

Admission as a solicitor advocate involves completing a training course and passing the related exams, as well as satisfying the Council of the Law Society that the applicant has sufficient experience in appropriate proceedings in the sheriff court (five years is normally required). See rule C4 in the rules and guidance section of the Law Society’s website, which also has links to the application forms.

For further information, contact Coral Riddell, Director of Professional Practice at the Law Society.

Meanwhile, introductory courses for those considering becoming a solicitor advocate are held each year by the Society of Solicitor Advocates, usually in May.