Improving solicitor advocacy: is it necessary?

Changes to higher rights of audience (HRA) assessments for solicitors now look certain but there are concerns around the plan to encourage reporting of poor standards.

Last year, the SRA conducted a public consultation on assuring advocacy standards and has decided to change how HRA assessments will operate. In July it announced it will start to roll out new measures from early 2021 to “maintain and ensure high levels of advocacy among solicitors” - including requiring HRA assessments to be taken post admission.

It also made clear its view that as a higher qualification the HRA assessment should only be attempted by qualified solicitors. Paul Philip, SRA chief executive, says that the planned measures will enhance confidence but others are not convinced.

So what’s the detail? A revised criminal and civil HRA standards will be launched from early 2021 and there will be a single HRA assessment provider – though not before summer 2022. Among other things, a suite of online resources for solicitors will also be developed.

Proposed revisions to the standards included, for instance, a greater focus on skills required for modern practice; and using clearer language and introducing more detail so that solicitors and assessment organisations better understand the required standard.

The SRA said many consultation responses agreed with the proposed changes as they provide clarity for solicitors in helping understand their ongoing competence requirements; and better reflect the legislative and procedural challenges of modern practice. But the changes are not universally welcomed. The Dispute Resolution Committee for the Birmingham Law Society, for example, described it as a “sledgehammer to crack a walnut” approach saying: “We do not consider that any changes should be made to the assessment of civil practitioners which are… adequate.”

Sophie Khan, solicitor advocate and past secretary of the SAHCA says she was unaware of any concerns expressed about civil advocacy. She points out that the SRA wants to change the current HRA assessment process when it has not even "established robust evidence that accurately identifies how widespread the problem is" with solicitor advocacy.

She says the commentary by judges in the QASA legal challenge and in the recent reviews into criminal advocacy were about barristers. “There is no justification to bring about change to the assessment process for HRA and bring in unnecessary restrictions to when solicitors can take the assessment”, adds Khan.

She believes without "robust evidence" to justify a change to the assessment process, the SRA should instead be focusing on promoting solicitor-advocacy as a cost-effective alternative to the Bar.

Reporting

The SRA also announced measures to encourage others to report concerns about advocacy standards and to publish summaries of such reports summer 2021. But at the same time, it acknowledged that it is difficult to establish whether or not poor advocacy is a widespread problem.

A number of consultation respondents expressed concern that a culture of reporting concerns over advocacy could have a chilling effect on younger solicitor advocates who are making the transition to advocacy in the higher courts.

The Junior Lawyers’ Division said such reporting could “have very serious consequences for solicitors, and in particular junior solicitors”. It said it is “extremely important” for the SRA to provide detailed information on its proposals.

An initial proposal, requiring solicitors advocating serious cases in the youth court to have a higher rights qualification, has been dropped.

Khan points out that judges are tasked with making findings in the cases before them not to assess the advocacy. If a client is unhappy with the service provided, they can complain but it would, she says, be inappropriate for a judge to be tasked with "assessing" the advocacy, as this could lead to a potential accusation of bias against the judge - which may call into question the fairness of the hearing."

The proposals are subject to final confirmation by the Legal Service Board.

Written by Nicola Laver, a non-practicing solicitor and a qualified journalist. She is also editor of Solicitors Journal.