Law: Welcoming audience participation: The first group of solicitors have begun to appear as advocates in the higher courts, reports Sharon Wallach

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The Independent Online
History was made this month by a small group of solicitors who exercised their newly acquired rights to appear as advocates in the higher courts. This was the culmination of the process started four years ago when the Lord Chancellor published his Green Paper on the future work and organisation of the legal profession.

To qualify for grant of rights of audience, solicitors must satisfy three requirements: experience of advocacy and familiarity with the relevant higher court, a test of evidence and procedure in that court, and completion of an advocacy training course. Exemption from these requirements can be sanctioned in certain cases, for example where solicitors formerly practised as barristers, or have experience in a judicial capacity in the higher courts.

The Law Society has now granted exemption to 32 solicitors: 13 won rights of audience for all proceedings, 16 for criminal proceedings only and three for civil work only.

Most of these are former barristers or have judicial experience. One person not in that category is Charles Morrison, a partner and commercial litigator with the London firm Bishop & Sewell. He has won rights of audience in the civil court, alongside two recorders. '50 per cent of my work is construction-based,' he says. Over the past few years he has conducted many cases himself.

'The clever thing about government legislation - the Civil Justice Review - is that the removal of the pounds 5,000 threshold has, in effect, transferred a lot of work from the High Court to the county court (where solicitors already have rights of audience). This means that the county court is now trying cases that could concern millions of pounds. Over the past two or three years we have been seeing many cases for damages of pounds 70,000 or pounds 80,000 where a negligent surveyor has been sued by a householder, for not spotting dry rot, for instance.'

Mr Morrison says that the high level of county court work has - for him - almost precluded the need for a change in the rules. 'But it is a good thing it has come. One area in which it will be particularly helpful is the companies court in the Chancery division, where a lot of insolvency proceedings are heard. It will be very much cheaper for me to appear there than counsel.' His first case - concerning pounds 1.5m - before a higher court is likely to begin in April. 'Counsel will be involved - I am a great believer in the Bar - and I may well act as junior counsel.'

Why not dispense with barristers altogether in this instance? 'It's a very complicated case, probably the most complicated I have ever dealt with,' Mr Morrison says. 'It will help to work with someone else. And I am only 31; I recognise that I don't have all the necessary experience. It is part of my job as a solicitor to ensure that the client gets the very best representation. 'In certain cases I will do the work myself, but really it's a case of horses for courses.'

Cost is the most noticeable factor of the new regulations, he says. 'In the April case, for instance, instead of a silk, a junior, me as a partner and a trainee, it seems possible that there will be a leader, me as junior and a trainee writing down the evidence. Immediately, one person is out of the equation.'

The first into court as a solicitor advocate was Richard Slowe, a former barrister and a partner at S J Berwin. On the same day he received notification of the grant of his rights of audience, he donned his gown and switched role from QC's instructing solicitor to junior counsel.

One matter so far undecided is the dress requirement for solicitor advocates. Traditionally, solicitors have gone wigless in court and the Lord Chancellor's Department (LCD) has to rule on whether this should change. The Law Society has also asked the LCD to ensure that there will be no discrimination against solicitor advocates.

Another solicitor quickly into court was Jo Cooper, a freelance advocate, who was granted rights of audience for criminal proceedings. This week, he was appearing as 'junior junior' in a jury trial at Knightsbridge Crown Court. The case is likely to last some weeks and Mr Cooper will be 'sitting and learning'. 'Including me in the list means that the Law Society has recognised that there is a future for independent specialist advocates,' Mr Cooper says. 'What is likely is that there will be a fundamental shift in the way legal services are organised and delivered.'

The exempt group also included the Law Society's vice-president, Charles Elly. He was granted rights of audience for criminal proceedings on the basis of his experience as an assistant recorder. The society expects a steady stream of solicitors to qualify in the months ahead. Qualification entails a package of tests and training, including a written exam and two three-day courses.

A man with experience of a jurisdiction allowing rights of audience for all is John Trotter, the litigation managing-partner at the City firm Lovell White Durrant, who spent two years working in New York.

'In the US, there is no split profession, so all lawyers have rights of audience in the state in which they qualified,' he explains. 'The large US firms tend to have very senior trial attorneys - maybe only a handful - who may come into a case only late in the day, when it is clear the case will come to trial.

Mr Trotter says: 'One of the advantages to the client in the development of rights of audience in this country is to meet the common complaint of 'why bring in another lawyer when you are the one who knows about my case?' ' An allied complaint is that, in the Crown Court particularly, the client only meets the barrister at the last moment.

The main issue for the large firms like Lovell White Durrant is whether to run a litigation department, or to operate a system where anyone is in a position to do their own advocacy.

'If it is to be the former, the same criticisms will apply as to the use of barristers,' Mr Trotter points out. 'At the same time, advocacy is a skill, and some do it better than others. What is important is to win the case for the client, at the cheapest price.

'We are all of us looking at a 10- year plan; it will take some time to evolve. The important thing will be to examine how the Law Society applies the regulations, and whether or not this will mean that firms will have to make radical changes to their practices to gain the necessary accreditation.'

(Photograph omitted)

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