Sole Skadden success in latest QC round marks rare solicitor advocate appointment. Alex Newman reports

There were celebrations at the London offices of Skadden Arps Slate Meagher & Flom last week when arbitration and litigation partner Karyl Nairn (pictured) was included among the 84 successful applicants in the annual round of QC appointments.

Nairn's achievement is underlined by the fact that she is the only solicitor advocate to make silk this year and the first to merit this distinction since 2011. 

Since 2006, just 13 solicitors have been named as QCs in the annual appointment rounds. Applications by solicitors are equally low, with two being made in each of the past two years – the lowest rate since solicitors were first permitted to apply.

Ever since Lord Collins and Arthur Marriott QC – then partners at legacy firms Herbert Smith and Wilmer Cutler & Pickering respectively – became the first solicitors to join the rank of Queen's Counsel in 1997, advocates outside the Bar have hardly flocked to apply. 

Yet according to the Solicitors Regulation Authority (SRA), as of January, there were 6,253 practising solicitors with higher court rights of audience, the necessary qualification to appear in the higher courts on behalf of clients and therefore be considered for QC status.

One explanation for the dearth of solicitor advocate applications is the arduous nature of the application process. "I don't think it's unreasonable to say it represents about five days of billable time to complete the forms," says one senior clerk. 

The 64-page application document comes in addition to the interview process, which requires each selected candidate to meet with two members of the selection panel and be measured against a rigorous competency framework.

The total £6,000 bill for making an application will also be a deterrent to some solicitors. But while this may help explain the lack of applications from the hard-pressed criminal law sector, it is unlikely to put off successful commercial solicitors from applying.

According to Nairn, one of the biggest challenges for solicitor advocates is getting together enough judicial references for the application process (given the length of many cases) and the fact that the panel requires references from 12 judges covering the last two years of advocacy. Others agree meeting the requirement is a definite hurdle.

"In the criminal sphere, where most solicitor advocates will be practising, it can be very difficult to get the necessary profile," says Andrew Hopper QC, who became the fifth solicitor advocate to take silk in 2001. 

"As a solicitor, your chances of appearing in the Court of Appeal are relatively small, and on the circuits solicitors will almost invariably be appearing before recorders and circuit judges. I had the good fortune to appear on a regular basis before very senior judges. It helps."

According to Hopper, the ability and skills required to meet the selection criteria are "something outside the norm and above a merely satisfactory level of competence". This, he argues, is a particular challenge for solicitor advocates who often lack the opportunities to prove what they can do. "It helps to have a niche practice or to have been involved in high-profile matters so that you have the opportunity to stand out. Otherwise, you can seem to be just one of the crowd, even if you are an exceptional advocate."

The need to stand out is not something that will have held back Skadden's Nairn, given the role she played in last year's successful defence of Chelsea FC owner Roman Abramovich in his £3.8bn dispute with Russian oligarch Boris Berezovsky.

Tellingly, three barristers who appeared in the case – Andrew Henshaw and Roger Masefield of Brick Court Chambers, and Jonathan Adkin of Serle Court – have also been made QCs this year.

And alongside the Abramovich case, Nairn also has a high-profile international arbitration practice to draw on that features an impressive array of disputes. These disputes may not grab headlines, but they do allow practitioners to source the kind of quality judicial references that colleagues working in other fields will often struggle to obtain.

"A number [of solicitors], including [Royal Dutch Shell general counsel] Peter Rees QC, have done advocacy work in arbitration of an equal standard to anything in the courts," says Pinsent Masons partner Craig Connal QC, who, while English qualified, took silk in Scotland in what he describes as a much simpler process. "On the civil side, I suspect there is a lot of advocacy – and that includes written elements – being done outside of the courts and not visible to the public."

This outlook is at odds both with the current statistics and the predictions of many observers, including the current Law Society president Lucy Scott-Moncrieff.

"The emphasis on excellence in advocacy means that the overwhelming bulk of solicitors who are not specialist advocates or who have gained their rights of audience recently will not yet think it worth their while to apply for silk," she says.

Whether this scenario – and the downward trajectory of applications – will reverse is a moot point, but the changing face of advocacy leaves some room for optimism.

"I think the world will change," says Connal. "The Bar is already starting to do elements of work that were traditionally done by solicitors. That's being matched by solicitors doing work that was previously done by the Bar. My guess is that the two will continue to cross over, but how far it will go in a very traditional world is hard to say."

In the meantime, it will be left to specialist advocates such as Nairn to fly the flag for solicitor advocates. "My advice is not to give up if the purely 'quantitative' aspects of the form cannot be strictly met," she says. "Provided there are well-qualified referees who support your application, there is some flexibility and allowance made for applicants whose practices do not fit within the traditional English barrister model."

Solicitor advocate QC appointments since 2006

2006 June Venters (Venters, family/criminal); Niall Quinn (1 Gray's Inn Square, criminal); Christopher Style (One Essex Court, commercial); Mark Powell (Hugh James, family)

2007-08 Paul Mitchard (Skadden Arps Slate Meagher & Flom, commercial arbitration)

2008-09 Judith Gill (Allen & Overy, commercial arbitration); Peter Rees (Royal Dutch Shell, arbitration); Romano Subiotto (Cleary Gottlieb Steen & Hamilton, arbitration)

2009-10 Marcus Trinick (Eversheds, energy)

2010-11 Tim Taylor (SJ Berwin, litigation); David Price (David Price Solicitors & Advocates, media)

2012-13 Karyl Nairn (Skadden Arps Slate Meagher & Flom, arbitration)