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Advocacy group asked to rewrite new quality assurance scheme rules

1 June 2011

The SRA board has asked the group of experts set up to design a quality advocacy assurance scheme for all criminal advocates to reconsider some of the rules amid concerns that judges carrying out advocate assessment could be biased against solicitors.

Chaired by Lord Justice Thomas, the Joint Advocacy Group (JAG) was appointed in January and tasked with producing a set of unified standards applicable to barristers, solicitors and legal executives appearing as advocates in the criminal courts.

The group, made up of representatives of the three professions, reported back last month recommending that advocates could be assessed alternatively through an independent assessment centre or by judges.

Speaking at this morning’s board meeting SRA chair Charles Plant recommended the board endorsed the JAG report subject to clarification of the rules so that solicitor-advocates would not be disadvantaged.

The board’s conditional endorsement acknowledged concerns voiced by several board members but Plant said the report was “a good way forward”.

The principle that advocate performance should be evaluated by judges raised a serious problem, according to board member Mark Humphries, former head of advocacy at Linklaters who now runs his own firm.

There was inevitable tension between a judge and an advocate defending the interests of his client, he said, “which may require a degree of contradiction with a judge and standing up to him, which could put the judge in a bad mood in relation to this particular advocate”.

“Inherent in the scheme is the danger that it won’t work because of the possible apparent bias on the part of the judge,” he added.

Cindy Leslie, former dispute resolution partner at Denton Wilde Sapte, picked up on the point, saying the rules should provide a clear set of criteria to identify potential conflict between an advocate and a judge.

Humphries was also concerned that the scheme as currently designed was too elaborate compared with the mischief it sought to address and placed too much of a burden on judges already coping with a heavy caseload.

Having a report on an advocate’s performance could end up being worse than having no report at all, he said, warning that the judge-run assessment could lead to discrimination against solicitors in favour of members of the Bar, of the type last seen in the 1990s after solicitors were first allowed to acquire higher rights of audience.

There were also concerns that the new scheme could be an ongoing issue for tier one solicitors – who are allowed to appear in the magistrates’ courts on qualification – with board member Ian Menzies-Conacher asking for the CPD requirements to clearly refer to advocacy specifically.

Charles Plant agreed to revert to Lord Justice Thomas asking for further details about how the judicial assessment would operate, although he said he did not have any objections to the scheme per se.

He added that it was right that judges should be allowed to relay them to the JAG and that he didn’t see judicial assessment of solicitor-advocates as “a fundamental problem”. He did accept, however, that there were issues with some of the proposed rules. One such concern related to the so-called ‘green plating’ of advocate applying to move to a higher advocacy level (there are four). After being allowed to move to the higher level on a temporary basis, a ‘green plated’ advocate would then be automatically assessed on the basis of his next two cases. Plant agreed this could be unfair on an advocate having a bad day and who would have no experience yet of this level of advocacy.

The proposed rules will be further consulted on, with pilots in Durham and Canterbury starting this month, with a view to being incorporated into the SRA’s policy document due for final consideration at the next board meeting on 13 July.

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