Solicitor advocate is a hybrid status which allows a
solicitor
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and ...
in the United Kingdom and Hong Kong to represent clients in higher courts in proceedings that were traditionally reserved for
barristers
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
. The status does not exist in most other common law jurisdictions where, for the most part, all solicitors have
rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client.
In English law, there is a fundamental distinction between barristers, who have rights of audience in the ...
in higher courts.
The title is also used in some jurisdictions to refer to solicitors who conduct advocacy in court (such as
Northern Ireland
Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
) or as a job title (Australia).
Origin
Historically in the United Kingdom, solicitors took conduct of
litigation
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
, and undertook advocacy in the
lower court
A lower court or inferior court is a court from which an appeal may be taken, usually referring to courts other than supreme court. In relation to an appeal from one court to another, the lower court is the court whose decision is being reviewed ...
s (
tribunal
A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title.
For example, an advocate who appears before a court with a single ...
s,
coroner's courts,
magistrates' court
A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings.
Courts
* Magistrates' court (England and Wales)
* Magistrate's Cour ...
s,
county court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions (subnational entities) within a country, not to be confused with the medieval system of ''county courts'' held by the high ...
s, and
sheriff courts). They were not able to represent their clients in court in the higher courts: the
Crown Court
The Crown Court is the court of first instance of England and Wales responsible for hearing all Indictable offence, indictable offences, some Hybrid offence, either way offences and appeals lied to it by the Magistrates' court, magistrates' court ...
, the
High Court, the
Court of Appeal
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
, the
Court of Session
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh ...
, the
Privy Council
A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
, and the Legal Committee of the
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
(today known as the
UK Supreme Court
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the Unite ...
). Instead, solicitors were required to instruct
barrister
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
s (in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
) or
advocate
An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a barrister or a solicitor. However, ...
s (in Scotland) to represent their clients in court.
Section 27 of the
Courts and Legal Services Act 1990
The Courts and Legal Services Act 1990 (c. 41) was an Act of the Parliament of the United Kingdom that reformed the legal profession and courts of England and Wales. The Act was the culmination of a series of reports and reforms that started with ...
, in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, and section 24 of the
Law Reform (Miscellaneous Provisions) (Scotland) Act 1990
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990c 40 is an Act of Parliament of the United Kingdom dealing with a variety of matters relating to Scottish law.
Overview
Amongst other things the legislation addresses:
* regulation of ...
, in
Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
, created a route for solicitors to qualify for a grant of
rights of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client.
In English law, there is a fundamental distinction between barristers, who have rights of audience in the ...
in the higher courts when they have sufficient training and experience, subject to passing additional exams. The complex rules and regulations were relaxed in England and Wales by the Higher Courts Qualification Regulations 2000 so as to establish four main routes to qualify for
higher rights of audience
Higher may refer to:
Music
* The Higher, a 2002–2012 American pop rock band
Albums
* ''Higher'' (Ala Boratyn album) or the title song, 2007
* ''Higher'' (Ezio album) or the title song, 2000
* ''Higher'' (Harem Scarem album) or the title song ...
: development (training, assessment, and a portfolio of cases); accreditation (experience and an advocacy assessment); exemption (sufficient experience); and former barrister (called to the bar before 31 July 2000). Higher rights of audience may be granted for the higher criminal courts, or the higher civil courts, or both.
Practice in the UK today
England and Wales
Solicitor higher court advocacy has developed significantly since its first authorisation by the Courts and Legal Services Act 1990. Although only a handful of solicitors acquired higher rights as the first batch of advocates in 1994, they included some of the most senior figures in the legal establishment of the time, such as
Sir David Napley
Sir David Napley (25 July 1915 – 24 September 1994) was an English solicitor.
Background
David Napley was born in London of Jewish ancestry. He began his articles (the equivalent of a modern-day training contract) in 1935 at age 16. He pass ...
, founding partner of Kingsley Napley. Approximately 4,000 advocates have since been authorised for crime, civil, or both. They represent a wide spectrum of experience.
Whilst there has been a steady growth of numbers in recent years, the bulk of the serious advocacy is still undertaken by solicitor advocates with many years of advocacy practice behind them. Some solicitor advocates have been working exclusively in higher courts for fifteen years (or longer if former
barristers
A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...
) and have developed particular specialisms, for example in regulatory and disciplinary work such as
Andrew Hopper
Andrew Christopher Graham Hopper (1 October 1948 – 25 July 2018) was a British solicitor who practised on his own account in a niche practice concerned with professional regulation and discipline, principally in relation to solicitors.
He f ...
KC; in family work, such as
June Venters
June is the sixth month of the year in the Julian and Gregorian calendars and is the second of four months to have a length of 30 days, and the third of five months to have a length of less than 31 days. June contains the summer solstice in ...
KC; in
extradition
Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdict ...
cases, such as
Michael Caplan
Michael G Caplan KC (born
1953 in Wandsworth, London) is an English solicitor.
Biography
Caplan read law at King's College London (LLB, AKC), before undertaking study at The College of Law in London. Articled at Lickfolds Wiley & Powles, he q ...
KC; and elsewhere in various parts of the criminal field, such as in
terrorism
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
work and
fraud
In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compens ...
; e.g.,
Niall Quinn
Niall John Quinn (honorary MBE; born 6 October 1966) is an Irish former professional footballer, manager, businessman and sports television pundit.
As a player he was a striker who played top flight football for Arsenal, Manchester City and ...
KC.
Solicitor advocates are regularly appointed to the ranks of
King's Counsel
In the United Kingdom and in some Commonwealth countries, a King's Counsel ( post-nominal initials KC) during the reign of a king, or Queen's Counsel (post-nominal initials QC) during the reign of a queen, is a lawyer (usually a barrister or ...
, albeit the numbers of applicants are relatively low. Solicitor advocates have also been appointed to the
High Court bench
The high courts of India are the highest courts of appellate jurisdiction in each state and union territory of India. However, a high court exercises its original civil and criminal jurisdiction only if the subordinate courts are not authorize ...
.
The Baron Collins of Mapesbury, a former
Herbert Smith
Herbert Smith LLP was a multinational law firm headquartered in London, United Kingdom. The firm was founded in the City of London in 1882 by Norman Herbert Smith and merged with the Australian law firm Freehills on 1 October 2012, forming Herber ...
partner, was the first appointee as a solicitor KC in 1997 before being appointed to the High Court bench. In 2009 he was appointed to the UK Supreme Court.
The
bar
Bar or BAR may refer to:
Food and drink
* Bar (establishment), selling alcoholic beverages
* Candy bar
* Chocolate bar
Science and technology
* Bar (river morphology), a deposit of sediment
* Bar (tropical cyclone), a layer of cloud
* Bar (u ...
and judiciary have been generally supportive of the growth of solicitor advocacy, asserting that the bar would not be threatened by individuals acquiring new skills and practices; and that the ethnic, gender and class diversity that this wider pool of advocates would bring to the profession would be welcome. But, in recent years the bar has found its work being reduced, partly as a result of
Legal Aid
Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to co ...
cuts principally directed at solicitors' firms, and this has generally soured its opinion of the changes.
Instruction of solicitor advocates became more prevalent as firms saw the advantages of keeping work in-house without the need to instruct outside counsel. This pioneering approach is frequently seen across England and Wales, particularly in areas such as
Birmingham
Birmingham ( ) is a city and metropolitan borough in the metropolitan county of West Midlands in England. It is the second-largest city in the United Kingdom with a population of 1.145 million in the city proper, 2.92 million in the West ...
. The previous monopoly of counsel in higher court advocacy led to complacency by some; late withdrawal from serious cases of the counsel of choice remain relatively frequent due to other work commitments. Occasionally this was accompanied by an attempt to foist upon both solicitor and client a new counsel with no previous involvement in the case. Practice choices such as these worked to the benefit of solicitor advocates, who had the advantage of appreciating the consequences of such behaviour and of knowing the client. Equally, the independent bar met with some limited competition from chambers of solicitor advocates, independent practitioners with common clerking and conference facilities who operated in a similar way to barristers, but with less aggressive clerking arrangements so that late return of briefs was relatively unusual.
Competition has led to criticism from the
bar
Bar or BAR may refer to:
Food and drink
* Bar (establishment), selling alcoholic beverages
* Candy bar
* Chocolate bar
Science and technology
* Bar (river morphology), a deposit of sediment
* Bar (tropical cyclone), a layer of cloud
* Bar (u ...
and judiciary of the extent of solicitor advocacy practised in the higher courts, particularly as solicitor advocates are regulated by the
Solicitors Regulation Authority
The Solicitors Regulation Authority (SRA) is the regulatory body for solicitors in England and Wales.
It is responsible for regulating the professional conduct of more than 125,000 solicitors and other authorised individuals at more than 11,000 f ...
or
Law Society of Scotland
The Law Society of Scotland is the professional governing body for Scottish solicitors. It promotes excellence among solicitors through the support and regulation of its members. It also promotes the interests of the public in relation to the ...
rather than the
Faculty of Advocates
The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary. The Faculty of Advocates is a constitu ...
or
Bar Standards Board
The Bar Standards Board regulates barristers in England and Wales for the public interest.
It is responsible for:
* Setting standards of conduct for barristers and authorising barristers to practise;
* Monitoring the service provided by barrist ...
. Solicitor advocates have a code for advocacy which is almost identical to the Bar code of conduct. Criticism is levelled against solicitor advocates due to the possibility that defendants' interests may not be best protected by an advocate who also works for the solicitors employed by the defendant. The role of counsel is to act as an independent party and advise the defendant if the solicitor is not acting in the best interests of the client.
Scotland
Despite these arrangements, which have been in place since 1994, there have been attacks on the principle of solicitor advocacy from some quarters, both north and south of the border. In the Scottish case of ''Woodside v HMA''
009 009 may refer to:
* OO9, gauge model railways
* O09, FAA identifier for Round Valley Airport
* 0O9, FAA identifier for Ward Field, see List of airports in California
* British secret agent 009, see 00 Agent
* BA 009, see British Airways Flight 9
* ...
HCJAC 19,
the
High Court in Scotland was critical of some aspects of practice by solicitor advocates. But, the appeal in question failed on a ground related to the allegedly "defective" representation of the solicitor advocates instructed at trial. The case dealt with the conduct of a trial over 10 years earlier. In any event the decision was welcomed by the Society of Solicitor Advocates, who suggested that it would be appropriate to have a review of all issues relating to rights of audience, including those involving the Faculty of Advocates.
At a
SGM SGM, or sgm, may refer to:
Science
* Second Generation Multiplex DNA profiling system - also see SGM+
* Scanning gate microscopy
* Spherical Grating Monochromator beamline of Canadian Light Source
* Semi-global matching algorithm in stereo ima ...
of the Society of Solicitor Advocates on 22 April 2009, they passed a resolution in respect of consideration of the Woodside case. The resolution stated:
The motion was withdrawn at the Law Society's AGM, due to the announcement that there would be a review of rights of audience generally, as requested by the Society of Solicitor Advocates.
The increasing workload and recognition of solicitor advocates has led to changes in the law profession. Some law students elect to train as solicitor advocates rather than barristers. The ''
Law Society Gazette
''The Law Society Gazette'' (also known as the ''Gazette'' or the ''Law Gazette'') is a British weekly legal magazine for solicitors in England and Wales published by the Law Society of England and Wales.
While it is available to buy and on su ...
'' has noted that a number of
solicitors
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and ...
decide very early in their careers to qualify as solicitor advocates.
Northern Ireland
Part 8 of the Justice Act (Northern Ireland) 2011 (the 2011 Act) provides for the authorisation by the Law Society of Northern Ireland of solicitors who have completed certain training to have rights of audience in the higher courts. The Law Society is required to make regulations with regard to the education, training and experience which a solicitor must possess before authorisation can be granted. These regulations are subject to the concurrence of the Lord Chief Justice and the Department of Justice which must consult with the Attorney General. Regulations have not been issued and the system has yet to come into effect.
The draft Code of Conduct for Solicitor Advocates issued by the Law Society of Northern Ireland defines "advocates” as any solicitors exercising their right of audience in any court. The term "solicitor advocate", therefore has a broader meaning in Northern Ireland than in England & Wales and Scotland.
Hong Kong
Hong Kong has since the 1860s followed the English tradition of only allowing barristers a general right to appear in open court in the higher courts. The only general exception has been that government counsel (called legal officers), whether admitted as a barrister or solicitor have had higher rights of audience for many years in matters in which the Hong Kong government has an interest. Solicitors have been allowed to appear in chambers in the Court of First Instance and Court of Appeal on interlocutory matters and in open court in the Court of First Instance on non-contested matters or in an emergency.
In 2010, amendments were passed to the Legal Practitioners Ordinance allowing solicitors to apply to become solicitor advocates. This was the result of proposals made originally in 1995 and moved before the Legislative Council in 1996. The amendments did not proceed at that time because the President of LegCo ruled that the amendments exceeded the scope of the Bill and could not be proposed. In 2007, the Chief Justice convened a working party on Higher Rights of Audience which recommended a system be introduced to allow for solicitors to become solicitor advocates.
The new system established a Higher Rights Assessment Board to which solicitors can apply to represent clients in the higher courts in criminal and/or civil proceedings. Applicants may apply either by way of exemption (due to their having significant advocacy experience) or by assessment.
The first applications were received in 2013 and it was reported in the ''
South China Morning Post
The ''South China Morning Post'' (''SCMP''), with its Sunday edition, the ''Sunday Morning Post'', is a Hong Kong-based English-language newspaper owned by Alibaba Group. Founded in 1903 by Tse Tsan-tai and Alfred Cunningham, it has remained ...
'', a Hong Kong newspaper, that "
2013, only 15 out of 90 solicitors who applied to represent their clients in the higher courts were granted the status of solicitor advocates".
As at January 2022, 90 Hong Kong solicitors had been granted higher rights of audience. 6 solicitors have obtained higher rights of audience in criminal cases and 84 in civil cases.
Court dress
In England and Wales, solicitor advocates wear a gown, winged collar and bands, and may also wear a wig in circumstances where they are worn by barristers.
In Scotland they wear a gown over business dress, but no wig, in line with other Scottish solicitors.
In Hong Kong, in hearings where advocates are required to be robed, solicitor advocates wear a solicitor's gown, winged collar and bands. They are not permitted to wear a wig.
Top Hong Kong judge refuses to let solicitors wear wigs in higher courts
/ref>
References
External links
Society of Solicitor Advocates
for Scottish Solicitor Advocates
Solicitors' Association of Higher Court Advocates
in England and Wales
Higher Rights of Audience
from the Solicitors Regulation Authority
The Solicitors Regulation Authority (SRA) is the regulatory body for solicitors in England and Wales.
It is responsible for regulating the professional conduct of more than 125,000 solicitors and other authorised individuals at more than 11,000 f ...
Hong Kong Higher Rights of Audience Assessment Board website
{{DEFAULTSORT:Solicitor Advocate
Region-specific legal occupations
1990 establishments in the United Kingdom
Law of Hong Kong