Editors Blog
The price of extended rights
23 Feb 09
Solicitor advocates right to support call for review
It took many years of campaigning for solicitors to be allowed to qualify for extended rights of audience in Scotland's higher courts, and much resistance in high places had to be overcome. If there is evidence now that the system does not operate to the same standards as when counsel are instructed in the traditional manner, it is both right and sensible to accept that it is time for review.
Hence it is not too surprising that the Society of Solicitor Advocates has associated itself with the call last week by the Lord Justice Clerk in the Woodside appeal, for a review into the operation of the solicitor advocate system, in the wake of the court's comments that the case displayed a number of shortcomings in the conduct of a trial. It is unfortunate - apparently due to a convoluted appeal process - that the trial in question took place over 10 years ago, but Lord Gill appeared to believe that his concerns were as relevant to current practice.
It is certainly the case that only last year, the solicitor advocates persuaded the AGM of the Law Society of Scotland that it was unnecessary to maintain the practice rule requiring clients to be advised on the pros and cons of instructing counsel as an alternative to a solicitor advocate - a rule which Lord Gill clearly thought served a purpose in reducing the risk of self-serving advice. A complaint at the time was that advocates were under no equivalent obligation; but the court in Woodside regarded the differences between the solicitors' and advocates' professional codes as important, and not to be too readily glossed over as may have been the temptation in some quarters.
Despite the court's concerns, it should be possible to make the system work. If it does not, it would not bode well for the much wider interdisciplinary practices taking shape under the Scottish Government's legal services reforms, officially supported by the profession. However the case is a timely reminder of the need for care at every step, as much in the practice of individuals under any new regime as in the drafting of who owes what duties and to whom.