Solicitor Advocates on the role, and its effects

The first group of Solicitor Advocates, in 1993. Picture: TSPL

Murray Macara recalls the excitement among solicitors when the door was opened to admit a new legal creature to Scotland’s highest courts: “It was like a dam bursting.”

The portmanteau Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 was an extraordinary piece of legislation, ushering in a host of changes and inovations.

Among them was the provision that allowed solicitors with sufficient training and experience to acquire the right of audience in the highest courts. The solicitor advocate was born.

It is fair to say that when that door was opened there was a fair amount of jostling and use of the elbow to be first through it. Solicitors who had decades of experience in the sheriff courts saw the new status as public affirmation of their ability to perform at the highest level.

Macara says: “I wanted the challenge of acting as an advocate in the broadest sense. I’d been qualified for 20 years and felt I should be able to pit my wits and apply my experience in the higher courts and in more challenging cases.”

There were 21 criminal defence solicitors in the first group of solicitor advocates to be admitted 20 years ago this month. Macara was among them, as were fellow legends of the sheriff courts, Joe Beltrami, Maurice Smyth and Vincent Belmonte.

“What is more important,” says Macara, “is that after that first release of the pent-up pressure it settled down to a steady flow.”

Now there are more than 300 accredited solicitor advocates, though not all exercise their right of audience very often. Around half are active in criminal law and half in civil cases.

Tony Jones, admitted as civil solicitor advocate in 1999, says: “I was drawn to advocacy but I was also interested in running a business and dealing directly with clients. Members of the faculty are self employed and sole practitioners so they aren’t allowed to do that.”

Since the race to be first to sign the parchment admitting them to the higher courts, the solicitor advocate milestones have been successively more significant but less remarked: the first to run a proof; the first to present an appeal; the first advocate depute; the first QC; the first to speak in the UK Supreme Court.

Two of the most recent appointments as Senators of the College of Justice, Lord Boyd of Duncansby, and Lord Jones, were members of the Faculty of Advocates before becoming accredited solicitor advocates.

The last fragment of the glass ceiling to be shattered will be the appointment as Senator of a solicitor advocate who has never been a member of the Faculty of Advocates. In the way of these things, that may warrant a footnote rather than a headline when it happens.

The Law Society of Scotland held a reception in Edinburgh’s Signet Library on 10 May to mark the 20th anniversary. Tom Marshall, President of the Solicitor Advocates Society, says it was a chance to reflect on the progress that had been made in building up the presence of solicitor advocates and to look forward to the challenges ahead that are going to effect all lawyers.

“Difficulties in the past weren’t so much to do with individuals but that various institutions had to work out how to establish ways of working. The proposed court reforms that will drive business down to the sheriff courts isn’t particularly friendly to either specialist solicitor advocates or advocates.”

There have been some hiccups along the way. There was the great wig dilemma. Should solicitor advocates wear them for gravitas and to be like members of the Faculty of Advocates or should they “go modern” and distinguish themselves from the Faculty. The vote went for gowns but against wigs.

There was a fear that the judges, then by defintion members of the Faculty of Advocates, would give them a hard time. “That was a concern in advance,” says Vincent Belmonte. “But it never happened in the criminal courts.”

Nor in the civil courts. Civil solicitor advocate Tony Jones says: “Judges just want things to go well in court. They don’t distinguish between an advocate or a solicitor advocate in front of them but between a good job and a poor job.”

The Faculty of advocates imposed an immediate ban on “mixed doubles”, its members appearing in the same team as a solicitor advocate, but that too has withered away.

The most dramatic intervention came in February 2009 when Lord Gill, then Lord Justice Clerk, wrote to the Secretary for Justice, Kenny MacAskill, expressing in robust language his concern about some issues that had arisen in an appeal against conviction in the case of Woodside v HMA.

He was concerned, among other issues, about the possibilities of a conflict of interest when a solicitor advocate is instructed by a solicitor within the same firm, and the apparent lack of specific regulation of solicitor advocates.

Mr MacAskill appointed Ben Thomson to conduct an investigation into these and broader issues of the uneasy relationship between the solcitor advocates and members of the Faculty.

The Thomson Report in January 2010 made a series of specific recommendations aimed at creating a common exam, a common code of conduct, a common term for those pleading in the high courts, and common dress in court. Mr Thomson spoke of creating a “gold standard” that would apply to all those with rights of audience in the high courts.

Not much has been heard of the Thomson Report in the three-and-a-half years since its publication. A spokeswoman for the Scottish Government said last week: “We are engaged in a wide programme of reform of the justice system and are considering the Thomson report in that context.”

Tom Marshall regrets that the recommendations appear to be gathering dust.

“There is still the potential for the kind of issues in Woodside to arise elsewhere. The original criminal case was ten years earlier and in the infancy of solicitor advocates. No similar case has turned up since but my view is that Thomson did identify weaknesses in how problems can be resolved before they become headline matters.”

In the criminal courts it has been evident for some time that solicitor advocates have made major inroads into both defence and prosecution work.

Vincent Belmonte said last week: “I’m currently involved in a major trial in Edinburgh. Four of the six defence counsel are solicitor  advocates. The advocate depute for the crown is a solicitor advocate. The Lord Advocate, Frank Mulholland, is a solicitor advocate and so is the Solicitor general, Lesley Thomson.”

It is apparent that in the criminal courts the advance of the solicitor advocate has been at the expense of the junior bar.

Twenty years on solicitor advocates are part of the legal furniture.

Bill Spiers of BTO says his firm decided in 1999 to build a practice around solicitor advocates. “We have nine in the civil side and three former Crown Office advocate deputes.

“The clients like it because they can get closer to the case – they can pick up the phone rather than make an appointment with external counsel. Insurers want to drive down costs. The reality is that what happens in the future will be driven by the marketplace.”