The status does not exist in most other common law jurisdictions where, for the most part, all solicitors have rights of audience in higher courts.
Instead, solicitors were required to instruct barristers (in England and Wales) or advocates (in Scotland) to represent their clients in court.
Section 27 of the Courts and Legal Services Act 1990, in England and Wales, and section 24 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, in Scotland, created a route for solicitors to qualify for a grant of rights of audience in the higher courts when they have sufficient training and experience, subject to passing additional exams.
The complex rules and regulations were relaxed in England and Wales by the Higher Courts Qualification Regulations 2000 so as to establish four main routes to qualify for higher rights of audience: development (training, assessment, and a portfolio of cases); accreditation (experience and an advocacy assessment); exemption (sufficient experience); and former barrister (called to the bar before 31 July 2000).
Solicitor advocates are regularly appointed to the ranks of King's Counsel, albeit the numbers of applicants are relatively low.
The Baron Collins of Mapesbury, a former Herbert Smith partner, was the first appointee as a solicitor KC in 1997 before being appointed to the High Court bench.
But, in recent years the bar has found its work being reduced, partly as a result of Legal Aid cuts principally directed at solicitors' firms, and this has generally soured its opinion of the changes.
Practice choices such as these worked to the benefit of solicitor advocates, who had the advantage of appreciating the consequences of such behaviour and of knowing the client.
In the Scottish case of Woodside v HMA [2009] HCJAC 19,[3] the High Court in Scotland was critical of some aspects of practice by solicitor advocates.
But, the appeal in question failed on a ground related to the allegedly "defective" representation of the solicitor advocates instructed at trial.
[4] At a SGM of the Society of Solicitor Advocates on 22 April 2009, they passed a resolution in respect of consideration of the Woodside case.
The Society also notes that it is desirable that common principles should apply in relation to the exercising of rights of audience by all practitioners appearing before the Court of Session and the High Court of Justiciary – section 25A(8) of the Solicitors (Scotland) Act 1980 – as are reflected in the Rules of Conduct for Solicitor Advocates and the Guide to Professional Conduct of Advocates.
[6] The Law Society is required to make regulations with regard to the education, training and experience which a solicitor must possess before authorisation can be granted.