Friday, 15 May 2009

Worth a read

Perusing the blawgosphere, I came across a post by the learned Charon QC regarding the setting up of a working group by the Bar Council "to tackle what it calls unfair competition from solicitor-advocates for Crown Court work".

The original article in the Law Society Gazette can be found here, and is certainly worth a scan for anyone intending to tread the dangerous path of criminal law.

My (highly unqualified) Two Cents:

I think it's fair to say we certainly live in interesting times; at least as far as the criminal Bar is concerned.Much of what I will say will tread well-worn ground, and is merely a stream of consciousness rather than deeply considered (*gross caveat to cover the many holes*)

It makes me question what exactly the Bar can do to fight back. On a mini-pupillage, one of the barristers I shadowed was telling me he was soon to be on a CPD course that was about barristers going straight to clients, or some such. I think either the criminal bar will have to entirely reconstruct itself from the ground up to offer this kind of service (so that it can offer everything from first point of contact), or somehow the advocacy rights of solicitors will need to be curtailed. The former is tantamount to amalgamation of the profession; personally I feel this is likely to be what will happen, but being done by slow creep from solicitors rather than action by the Bar. Unless they keep up, there is a serious danger that those at the bottom (or rather, we at the bottom) will be left out in the cold. Perhaps sooner than is anticipated.

Unless this committee comes back with some seriously telling results about solicitor-advocacy competency, I doubt it will change much. That said, there are doubtless as many poor barristers as their are good solicitor advocates.

Some kind of radical reformation is on the horizon. I can only hope that it is one that does not leave us in the wilderness. The difficulty in securing work, as well as the low pay almost smacks of the devaluing of the work. The profession requires a high level of skill, dedication and training (not to mention personal expenditure) even to get a foot through the door, and the reward is slim pickings.

Perhaps my biggest gripe is the disparity in training required to perform the same work. As an aspiring barrister, one must complete the LLB or GDL, BVC and 6 months of pupillage merely to begin practice. I am ignorant of exactly at what point such similar advocacy can be performed by solicitors (and am grateful for any enlightenment anyone can offer), but it strikes me that unless there is an exactly comparable quantity of specialised training, the quality of service provided is likely to be lower. This is worrying for two reasons. Firstly there is no benefit to the specialised training that is the route of the barrister-to-be as not only can one gain higher rights of audience (subject to completing various criteria of the Courts and Legal Services act 1990 I gather), but can reach the same basic level (I.E. the lower level work which is the bread and butter of pupillage) with considerable less time dedicated to practice. Secondly, if a very junior solicitor and barrister can perform the same work regarding low level deviance, does this not indicate that the work is so trivial as to fail to warrant the highly specific advocacy training for the Bar? If one follows this to the extreme, then no low-level case for which a solicitor can hold equal right of audience (without further training/minimum experience) is worthy of the extra time and training. I wonder how a client would feel about that? Such low level work may be merely that on which a green pupil earns his meagre subsistence, but that is not to say such work is any less important.

The words of the court in Woodside v HMA [2007] HCJAC 19 also highlight some of the issues in solicitor advocate work. "It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel, or a solicitor advocate from outside his firm, in circumstances where either of those options might be in the client’s best interests…". One must consider that if the barrister is to try to circumvent the solicitor in order to scrounge this work, will they not be in the same position? An amalgamated profession by any route is subject to this same weakness.

We may really struggle to find work to cut our teeth on.


  1. There is also the QQA or QAQ scheme currently run by Cardiff Law School that its looking into the quality of advocacy being performed, Inner London Crown Court is on that list...

    I find it hard to believe that all solicitors are playing fair, when there are such adverts as "maximise your profits learn to do advocacy"

    As shown on a particular site

    Then again some solicitor advocates are quite good, its an increasing problem which the Bar really needs to sort out in a dignified way, otherwise it will be biting the hand that feeds..

  2. Hey Odysseus, thanks for the link.

    From talking to LPC students, they did pretty much the same advocacy exersices as us on the BVC! That particularly applies to civil advocacy, which is why the junior end of the Personal Injury Bar is also under threat.

    There's a blog written by a trainee solicitor (, who mentioned that they have to undertake advocacy training during their training contracts...

  3. Bah Humbug, who wants to committ a purge on Solicitor inadequates?

  4. My own - and therefore highly subjective- experience of solicitor-advocacy in the lower courts has led me to the unfortunate conclusion that they are, unfortunately, a bit rubbish On the other hand, this is not to say that there are not some truly FINE and PROPER Sol-Adv's out there who put those who call themselves barristers to shame, so its a question of swings and roundabouts.
    However, I am reminded of the fable of the Fox and the Crow; if the Bar doesn't do something about clawing back those qualities for which it is reknowned, those of us who consider ourselves aspirants shall all find ourselves transported to Tescos where we will be put to work as Claims Handlers.