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MORE RIGHTS TO HIGHER ADVOCACY

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A Law Society bulletin published in September sets out the rights of local authority and other employed solicitors ...
A Law Society bulletin published in September sets out the rights of local authority and other employed solicitors to appear in the High Court and the Crown Court.

Such rights of audience are only available to solicitors who have earned the society's higher court qualification and, in the case of employed solicitors, is subject to stringent conditions. The new rules follow an announcement made by the former lord chancellor on 26 February.

A new rule has been introduced into the Employed solicitors code 1990, which applies to all advocacy - including that in the magistrates' and county courts.

This states that where an employer delegates the choice of advocate to their solicitor, the employer should set out in writing the criteria on which the choice is made, and appropriate records should be kept as to how the choice is exercised.

Employed solicitors cannot exercise rights of advocacy in the Crown or High Court unless each of the following conditions are met:

-- Heads of departments who employ solicitors must themselves be practising lawyers and have practised for at least three years and have access to the highest level of decision making authority

-- The department must have a normal establishment of at least three lawyers and be composed either exclusively of lawyers, or include others with related qualifications, such as legal executives and appropriate support staff

-- The relationship between the department and those to whom the advocacy and litigation services are provided must be that of solicitor and client

-- In relation to actions which are the subject matter of the litigation, the advocate has no responsibility for making executive decisions

-- The local authority must have passed a resolution recognising that its solicitors are independent professionals who have responsibilities as officers of the court and adhere to ethical standards set by their professional body.

Solicitors must also have access to the highest levels of authority in cases where they have any reason to doubt the propriety of any action or proposed action, and must be able to seek clarification from the Law Society or a court on matters of conduct, which will bind the employer as well as the solicitor.

The resolution must state that the solicitor will have had no responsibility for making executive decisions in relation to actions which are the subject of litigation.

Solicitors holding higher advocacy qualifications who become employed solicitors for the first time, or take up a post with an employer who has not previously employed a higher court advocate, must certify to the Law Society that they can comply with the provisions of the code.

The rules also prevent local authority solicitors from appearing alone in licensing appeals to the Crown Court or in applications to the High Court under s288 of the Town and Country Planning Act 1990. Neither can local authority solicitors provide lead advocacy in the divisional court in appeals from the magistrates' court relating to s94 of the Children Act 1989, except where the hearing takes place in chambers.

The most difficult condition for local authority higher advocates to comply with is that which prevents them from making any executive decision in matters which form the subject of the litigation. What is an 'executive decision' for this purpose? Is it restricted to decisions which have been specifically delegated to the solicitor under s101 of the Local Government Act 1972, or does it relate to any strategic decision concerning the conduct of the case?

LGC is pressing for local authority solicitors to be given the same access to the High Court and Crown Court as any private practice solicitor holding a higher advocacy qualification. Such extended rights would encourage local authority legal departments to build up banks of expertise in areas such as judicial review and at the same time reduce litigation costs for their employing authority.

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