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September 26, 2019

How can we assess the competence of solicitor advocates?

The truth is often difficult to pin down and the truth about advocacy is indeed elusive. The Jeffrey Review (2014) was commissioned by the government to assess and make recommendations about the quality of defence advocacy in England and Wales. Bill Jeffrey, a former senior civil servant, was not able to commission any primary research, but interviewed stakeholders and consulted. He pointed out that an increasing number of cases were being conducted by solicitor-advocates rather than barristers (in 2006 6% of Crown Court guilty plea cases conducted by solicitor advocates, in 2013 40%) and recommended that the training for solicitor advocates should be increased and that the two professions should consider aligning advocacy training altogether. He also reflected concerns among some barristers that solicitors’ firms held on to advocacy work for financial reasons and consequently exposed solicitor advocates who were under qualified to do the trials concerned.

Bill Jeffrey also called for more research. And the SRA (Solicitors’ Regulation Authority) has obliged. Unfortunately many of their findings contradict Jeffrey’s so the fog has not lifted.

The SRA asked criminal defence firms about how they approach advocacy, looked at case files and interviewed staff in firms. Solicitors’ firms deny that cost saving ever affects the use of an in-house advocate in Crown Court trials (or in any other circumstance) and said that solicitor advocates were in general very experienced.

The SRA research does however point to gaps in the way competency is assessed and developed.

  • Most firms (of 40 surveyed) either formally or informally observed their staff advocating in court. But 1/3 didn’t.
  • Several firms relied simply on PQE (the number of years someone had been working as a qualified solicitor) to assess competency
  • Delivery and monitoring of training was patchy. 16 firms never provided internal training and 3 firms never provided external training on advocacy.
  • Firms generally supervised and monitored criminal advocates through doing file reviews and analysing client feedback.

The reliance on client feedback is perhaps too great: “firms said that the client might not always be in a position to know whether they have received a good service, as their satisfaction might be based on the outcome of the case. Some firms also told us that clients rarely returned feedback forms”.

When we did research into the quality of defence advice and advocacy we were convinced that client feedback was valuable and that some clients were good at assessing service regardless of outcome. But client feedback is not gathered in a systematic and technologically savvy way. And many inexperienced or vulnerable clients may have little idea as to how to judge the service they received.

The shadow of Keres & Co hangs over this whole issue. In Stories of the law and how it’s broken, the Secret Barrister is asked to defend a vulnerable young man by a crooked (“fictional”) solicitors’ firm Keres & Co. Keres & Co undoubtedly send their staff to advocate in the magistrates’ court and give their clients a lousy service. Keres & co undoubtedly gets fine feedback from the few clients who respond to their feedback forms. Keres & co managers won’t observe their advocates in court or give them training. They are an outlier, but they exist.

The SRA research is great as far as it goes. But it doesn’t ask judges, barristers, judges and defendants about the quality of solicitors’ advocacy and it doesn’t suggest how to close down the Keres & Cos of this world. Our own report in the summer called for whole scale and holistic reform of the funding and quality control of defence lawyers. Let hope the MoJ has the time, resources and courage to do it.

NB the SRA are consulting on some changes to training and accreditation of solicitors with rights to advocate in the Crown Court and are keen for responses