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Annex C: Extracts from former Scottish Office research on solicitor advocates
(a) Solicitor Advocates in Scotland : A Research Overview (Report and Legal Studies Research Findings No. 35)
1. This research made a number of observations relevant to the rule :
1.1 The research found that the short-term impact (of the introduction of solicitor advocates on the shape of the legal profession) had been limited, largely because of the relatively small numbers of solicitors who had gained extended rights of audience (at that time), but also because of the views and practices of instructing solicitors and clients of legal services and the existing ban on "mixed doubles". One impact of potential significance, however, was the effect that solicitor advocates were having on the Junior Bar. It was noted that some junior advocates had lost business to solicitor advocates and that a continuation of this trend could lead to a diminution of the Junior Bar, and in the long term, the Senior Bar. However, none of the groups in the research wished to see the Bar diminished and the fusion of the profession was not seen as likely. A more diverse and fluid legal profession was, however seen as a possibility. Overall the research suggested that there was potential for further change in the future. This, however, would depend on a number of factors such as the views of solicitors and solicitor advocates and their clients, and the prospects for "mixed doubles" in the future. (Summary, paragraph 12)
1.2 Most solicitor advocates interviewed noted a desire to work with counsel as an opportunity to learn from the best and to form the best courtroom teams (paragraph 2.15).
1.3 The ban on mixed doubles attracted a significant amount of comment from organisational clients…there was a general consensus that mixed doubles would lead to cost savings as it would remove the necessity to instruct both senior and junior counsel in a case…corporate clients were attracted to the idea of mixed doubles, seeing such a combination as the ideal courtroom team (paragraph 5.25)…the majority of solicitor advocates thought that the mixed doubles team - comprising a specialist pleader and a case speciality - would represent the best team for the client (paragraph 6.28).
1.4 The ban on mixed doubles was introduced by the Faculty of Advocates, ostensibly because of the different Codes of Conduct which govern the two branches of the legal profession. All the judges interviewed for the research were of the view that the issues of discipline and ethics and the different ways these were dealt with by the two branches of the profession remained obstacles to the introduction of mixed doubles…though several suggested that if these issues could be resolved mixed doubles might not only be possible but also effective (paragraph 6.29).
1.5 Advocates…were not all wholeheartedly in favour of the ban. Kerner reported that various members of the Faculty suggested that the ban could be rescinded if rules for such team work could be properly established and understood. And while the majority of solicitor advocates were interested in working with advocates, several advocates also expressed a willingness to work with solicitor advocates under the right conditions (paragraph 6.30).
1.6 Advocates were of the view that experienced members of the Bar had been unaffected by the introduction of solicitor advocates and that most impact had been felt by the Junior Bar…There was some concern about the long term effect of this on the Bar amongst advocates and some organisational clients. However, none of the groups included in the research wished to see the Bar diminished and advocates continued to be used and valued because of their perceived objectivity, court room skills and legal expertise (paragraph 7.10).
1.7 A lifting of the ban on mixed doubles is likely to facilitate the development of solicitor advocacy…If top advocates were invited to join law firms as solicitor advocates working as in-house counsel, talent would be further concentrated in such firms (paragraph 7.42).
1.8 It would be most unfortunate if a policy aimed at enhancing client choice ultimately resulted in its restriction…it would also be unfortunate if the potential for enhanced client choice was being hindered by obstacles which could be removed through further policy intervention (for example the removal of the ban on mixed doubles)…(paragraph 7.43).
(b) Hanlon and Jackson's study Solicitor Advocates in Scotland: The Impact on Clients (Report and Legal Studies Research Findings No. 33)
2. This research noted some specific advantages mentioned by organisational clients which include the constant availability of solicitor advocates, avoiding any last minute change of advocate, greater control over the court process and a potential cost advantage if solicitor advocates were permitted to work alongside advocates in so-called "mixed doubles" (Summary, paragraph 7).
3. The study includes some analysis relevant to the mixed doubles rule and notes that there are at least two important differences between the rules as they affect advocates and solicitor advocates :
3.1 [firstly] solicitor advocates are not bound by the so-called "cab-rank" rule according to which the advocate "is not at liberty to decline, except in very special circumstances, to act for any litigant."…the absence of a cab rank rule for solicitor advocates could have important implications for client choice should solicitor advocates develop a disproportionate share of advocacy services at the expense of the Faculty of Advocates. The Government's intention in extending rights of audience was to widen client choice…however if the Bar were considerably weakened and the best solicitor advocates working for prestigious firms only accepted instructions from wealthy clients, less wealthy clients could be disadvantaged. (paragraph 1.5)
3.2 [secondly]…whereas advocates are generally not permitted to interview or discuss a case with (or in the presence of) a potential witness, solicitor advocates are under no such prohibition, except that a solicitor advocate must not communicate with any witness once the witness has begun to give evidence. The result of this is that it is open to solicitor advocates to become more involved in the preparation of cases than advocates and the traditional demarcation between the solicitor and advocate as one of preparation of the case by the solicitor and presentation of the case by the advocate may become blurred (paragraph 1.6).
3.3 Many corporate clients liked the idea of using "mixed doubles" where a solicitor advocate works alongside an advocate, either as the junior or senior partner…A number of clients considered the present rule against using "mixed doubles" was a restrictive practice designed to protect the Bar and commented that clients were effectively paying for the training of junior counsel (paragraph 6.16).
3.4 If "mixed doubles" were allowed…it is conceivable, possibly even likely, that solicitor advocates in the large firms would start to work as the junior partner in a case involving senior counsel. This would enable solicitor advocates to gain significant courtroom experience whilst also saving on costs to clients due to the fact that the solicitor would perform the role of both solicitor and junior advocate, thus saving on junior counsel's fees. However, in the long term such practices would undermine the Bar because many of the next generation of senior courtroom lawyers would potentially be solicitor advocates who had worked as juniors to many of today's most experienced counsel (paragraph 6.18).
3.5 Whether the "mixed doubles" rule is justified would seem to depend on whether it is believed that the Bar has a distinctive role to play (paragraph 6.19).
3.6 It would seem to the authors that if the ruling on "mixed doubles" were relaxed and the large corporate clients decided to use solicitor advocates as junior members in a solicitor advocate and counsel team, or if solicitors' firms were to reorganise so that they could accommodate large trial cases in-house, then the Junior Bar may well be undermined and the future of the Bar put in jeopardy. This in itself may not necessarily be a bad thing because professional jurisdictions are constantly under pressure and subject to change (Abbott, 1988). However, if the Bar is to weaken or even to demise in the long term, it is important that in the area of civil justice steps are taken to ensure that the next generation of experienced courtroom lawyers are not disproportionately based in the large law firms. …Access to justice and the creation of a representative judiciary require a situation wherein courtroom lawyers are not…solely tied to firms and to corporate clients because...law firms themselves are not impartial in whom they represent. Powerful clients may demand some control over who else the firm represents in a way that does not appear to exist with the Bar and this may have implications for access to justice (paragraph 6.29).
3.7 If solicitor advocates are to progress to become senior experienced courtroom lawyers they need to gain more higher court work. For this to happen it seems likely that they will need the ban on "mixed doubles" to be dropped so that they can work alongside the leading senior counsel and learn from them in the same way as junior advocates do. Such action may well damage the Junior Bar. Given that knowledgeable clients feel the present system means that they pay a high price for the Junior Bar to develop courtroom skills, however, it is hard to defend the current system on the grounds of service provision. But if the Junior Bar is damaged, then the next generation may not be as skilled as those working today. In itself this need not necessarily be a disadvantage if solicitor advocates enhance overall service provision. However, for this to occur a number of safeguards are needed. If all the successful and experienced solicitor advocates are to be found in the largest firms, because it is only those firms that are able to reorganise to allow the solicitor advocates to spend long periods in court, then choice may be limited. (paragraph 12.25).
3.8 …in the short term choice may be widened as advocates and solicitor advocates fight it out in the market place, but if solicitor advocates are successful at the expense of the Bar (and the Junior Bar in particular) then in the long term choice may actually be limited, both for powerful organisations but also, and perhaps more severely, for individual clients in the civil area who may be left with an inadequate Junior Bar and/or small firm inexperienced solicitor advocates… (paragraph 12.27).
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