RESPONSE OF THE LONDON SOLICITORS LITIGATION ASSOCIATION
TO THE SOLICITORS REGULATION AUTHORITY
CONSULTATION PAPER DATED 21 JANUARY 2009 ON:
SOLICITOR HIGHER COURT ADVOCATES –
PROPOSAL FOR MANDATORY RE-ACCREDITATION

Introduction to the LSLA

The London Solicitors Litigation Association (“LSLA”) was formed in 1952 and represents the interests of a wide range of civil litigators in London.  It has some 1,000 members throughout London among all the major litigation practices, ranging from sole practitioners to major international firms.

Members of the LSLA Committee sit or have recently sat on the Civil Justice Council, the Civil Procedure Rules Committee, the Law Society Council, the Law Society Civil Litigation Committee, the Commercial Court Users Committee, the Commercial Court Long Trials Working Party, the TCC Users Committee, the Chancery Users Committee and the Supreme Court Costs Group, to name but a few.  Representatives from the City of London Law Society and the City of Westminster and Holborn Law Society also sit on the LSLA Committee.  As a consequence, the LSLA has become the first port of call for consultation on issues affecting civil and commercial litigation in London, and it has on many occasions been at the forefront of the process of change.

Executive Summary

Whilst we accept that there needs to be formal accreditation for all advocates, whether Barristers or Solicitor-Advocates, we do not see the need for the re-accreditation of any advocates, and certainly not for Solicitor-Advocates alone.

The SRA Consultation Paper appears to be based on a misconception.  In paragraph 13(b) of the Consultation Paper, it states that: “Historically, there has been a perception that the quality of advocacy undertaken by Solicitor Higher Court Advocates is not as good as that of their Barrister counterparts although there is no empirical evidence to support this”.  This point is repeated in paragraph 15(a).

We do not agree with this perception.  The Consultation Paper does not state who holds this perception, or how strongly, or the reasons why they have this perception.  But in any event, such a perception cannot be a sound basis for introducing a re-accreditation scheme for Solicitor-Advocates when it is admitted that there is no empirical evidence to support this perception.  If it were possible to obtain empirical evidence as to the quality of advocacy by Solicitor-Advocates and by Barristers, this would be useful in assessing whether there is any need for re-accreditation across the board.

Since the whole point of having the Solicitor-Advocate qualification is to enable Solicitors to undertake the same advocacy role in court as Barristers are qualified to do, we consider it to be of fundamental importance that the same accreditation standards apply to both Solicitor-Advocates and Barristers.  There is no basis in our view for introducing a re-accreditation scheme for Solicitor-Advocates when none exists for Barristers.  Introducing additional hurdles for Solicitors rather than Barristers is inconsistent with ensuring that the regulatory requirements are fair and proportionate, and there are adverse equality and diversity implications.

Question 1

Do you think that clients who are represented by an accredited advocate would reasonably expect the Regulator to asses their skills on a periodic basis?

Answer 1

No.  We believe that the public would reasonably expect the Regulator to ensure that Solicitor-Advocates have been assessed before they become Solicitors-Advocates.  We do not believe that the public expects the Regulator to assess their skills on a periodic basis.  For the Solicitors profession as a whole, there is a lengthy and detailed assessment of competence before a Solicitor can qualify; thereafter, there is the requirement for continuing professional education and training.  There is no re-accreditation of Solicitors’ skills as a whole, and we do not consider that it is necessary or proportionate to introduce further examinations or assessments every few years throughout a Solicitor’s career.  In our view this would introduce a whole additional layer of time consuming and expensive regulation without any commensurate gain in the quality of legal advice and representation.  As far as we are aware, other professions, such as Barristers, Accountants and Surveyors, have similar initial accreditations (such as requiring the passing of academic examinations and a period of “on the job” training before qualification), and thereafter continuing education and development, but without formally reassessing skills already acquired.

Question 2

In paragraph 2, we suggested that the SRA’s key objectives in the development of the Higher Courts qualification scheme are to:

·            provide the public and clients with confidence in the standard of Solicitor Higher Court Advocates,

·            provide assurances that appropriate standards are being met and maintained, and

·            ensure that any regulatory requirements are open, fair, transparent and proportionate.

(a)     Which of the options presented do you think most effectively meets all these objectives? “Option 1 – re-accreditation for all”, “Option 2 – targeted re-accreditation”, or “Option 3 – no re-accreditation”?

(b)     Do you think there are any equality and diversity implications with any or all of these options?  If you answer “yes”, please outline what you believe the quality and diversity implications to be.

Answer 2

(a)     We consider that Option 3 (no re-accreditation) most effectively meets these objectives.  In our view all 3 options effectively meet the first two objectives above.  However, we consider that Options 1 and 2 fail to meet the third objective: in particular, they are not in our view fair and proportionate for the reasons set out in the executive summary and answer 1 above.

(b)     In our view Options 1 and 2 have adverse equality and diversity implications.  They discriminate against Solicitors and are likely to make it more difficult for those from diverse backgrounds (or those trying to combine a career with parental duties and/or part-time working) to retain their advocacy qualification.

Question 3

If you believe that re-accreditation should be mandatory for all holders of the Higher Courts qualification, should passported members still be required to undertake an advocacy assessment within a specified period before they are due for re-accreditation?

Answer 3

For the reasons previously stated we do not believe that re-accreditation should be mandatory for all holders of the Higher Courts qualification.  However, if it were mandatory, we do not consider that passported members should be required to undertake an advocacy assessment.  This would add an extra regulatory burden for the relevant Solicitor-Advocates and the SRA, and no evidence is put forward in the consultation paper to justify why such an assessment should be necessary.

Question 4

(a)   If you believe that re-accreditation should be targeted, do you think that the SRA should require only those advocates who have not regularly practised and applied their skills to be re-accredited?

(b)   Should this approach be accompanied by a mandatory and targeted advocacy CPD requirement?

(c)   Do you have any suggestions for overcoming the practical difficulties with a targeted approach detailed in paragraph 14?

(d)   If a targeted approach to re-accreditation is adopted, should all passported members who have not previously undertaken an advocacy assessment be required to do so within a specified period?

Answer 4

(a)   As previously stated, we do not believe that re-accreditation should be mandatory for all.  However, if it were mandatory, we do not believe that the re-accreditation should be targeted in the way suggested.  In our view it would be much too difficult for this to be applied consistently and fairly in practice.  As paragraph 14(c) of the Consultation Paper points out, such an approach would introduce the challenge of keeping accurate and accessible records, and would require self-certification by those holding the qualification and the possible random checking of such self-certification.  In our view this would be extremely bureaucratic, with substantial extra expense for Solicitor-Advocates (and ultimately the public) and would be totally disproportionate – particularly in circumstances where the Consultation Paper admits that there is no empirical or academic evidence to support such targeting.

(b)   No evidence has been put forward to justify a mandatory and targeted advocacy CPD requirement and we are not, therefore, in favour of it.  However, such a requirement would be less unfair and less costly for practitioners to comply with than other re-accreditation requirements.

(c)   In our view, the practical difficulties with a targeted approach identified in paragraph 14 are good reasons for not introducing Option 2.

(d)   If a targeted approach to re-accreditation is adopted, we do not agree that all passported members who have not previously undertaken an advocacy assessment should be required to do so, for the reasons previously explained.

Question 5

If you do not believe that re-accreditation is necessary at all, should passported members who have not previously undertaken an advocacy assessment still be required to do so within a specified period?

Answer 5

No, for the reasons already stated.

London Solicitors Litigation Association
16^th April 2009

LSLA_response_to_Jackson_Costs_review.pdf

Controlling Costs in Defamation Proceedings- LSLA Response to Consultation CP4/09 May 2009

Solicitor Advocate Higher Court Rights- LSLA Response to SRA Consultation April 2009