Solicitor advocates hit back at Gove's 'second class lawyers' attack

Solicitor advocates have responded angrily to former justice secretary Michael Gove’s comments that they failed to provide the same level of service as the criminal Bar and placed their own economic interests first when opting to keep advocacy work in-house.

‘Solicitor advocates have had to overcome considerable institutional prejudice to compete in one of the most challenging fields for any advocate, legal aid criminal work,’ said the Solicitors Association of Higher Court Advocates (SAHCA) chair, William Richmond-Coggan.

If solicitor advocates were now being instructed in ever greater numbers, Richmond-Coggan continued, this was ‘a reflection of their ability to offer an end-to-end service unmatched by the criminal Bar’s guns for hire, who are frequently parachuted in at the end of the case to collect a disproportionate share of the available fee’.

In his Prison Reform Trust’s Longford lecture on 16 November, Gove castigated solicitor advocates, accusing firms of employing lower-grade criminal advocates to keep costs down. ‘Some solicitors’ firms have built up in-house advocacy teams, often recruiting those who have not made it into barristers’ chambers. For these firms it often makes economic sense to pocket both the fees due to solicitors and payable to advocates rather than instruct independent barristers.’

The former Lord Chancellor added: ‘I think we should investigate how we can better regulate those solicitor firms who refer clients to in-house advocates or those with whom they have any sort of other commercial relationship’

But Richmond-Coggan retorted that the rise in the number of solicitor advocates was precisely because of the quality of their work, and that they had ‘nothing to fear from attempts to raise the standards of criminal advocacy, provided that it is done in a uniform and consistent way across the professions’.

The Pitmans partner went further. In a direct attack on the criminal Bar’s response to market challenges, he pointed to barristers’ failure to follow the example set by the civil Bar, which, he said, has embraced direct access and was competing with law firms on a level playing field. By contrast, the criminal Bar had retrenched behind its historic monopoly.

Instead of letting market forces dictate who wins the most business, Richmond-Coggan said, the criminal Bar decided to ‘resort to protectionist tactics of trying to crowd out the newcomers with unsubstantiated whispering campaigns and appeals to their powerful friends in government.’ The SAHCA chair went on: ‘The fruits of those campaigns can be seen in Mr Gove’s words, as he denigrates solicitor advocates as second class, and seeks to suggest that only barristers should be entitled to represent defendants in Crown Court, or serious magistrates' court, cases.’

In his lecture, entitled ‘What’s criminal in our justice system?’, Gove conceded that there were ‘of course, some very fine solicitor advocates’ before adding ‘but there is also no doubt that, individual for individual, barristers provide a better service.’ Later on, he also commented that ‘high-quality existing solicitor advocates could, of course, become barristers in appropriate circumstances’.

But Richmond-Cogan shot back that such comments sought to ‘harken back to an age where upstart solicitors knew their place, and existed purely to ferry a steady stream of golden guineas into the hands of the barristers’ clerks (barristers’ hands being too rarefied to be sullied with anything so vulgar as money).’

He continued: ‘But just as the established status quo has had to give way in fields as diverse as taxi driving and B&B accommodation, so too the Bar need to recognise that times change even for them. Solicitor advocates have considerable experience of standing firm in the face of discrimination and prejudice, and they are here to stay, whether the Bar likes it or not.’

It is estimated that solicitor advocates now undertake 43 per cent of criminal work, compared with 6 per cent in 2005/6.

The government started a consultation in October 2015 with a view to implementing the findings of the 2014 Jeffrey report on criminal advocacy services. The review was launched to address growing disquiet among judges – ill-founded according to many solicitor advocates – over the quality of criminal advocacy. The consultation closed in November 2015. One year on the government is still analysing responses.

Jean-Yves Gilg is editor-in-chief of Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg