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Solicitor advocates push for change

14 April 08

Solicitor advocates are seeking revocation of the Supreme Courts Practice Rules 2003, and parity of fee treatment with advocates in sheriff court proceedings

Solicitor advocates are bringing two motions before the Law Society of Scotland’s AGM on 22 May. The first seeks the revocation of the Solicitors (Scotland) (Supreme Courts) Practice Rules 2003. These require a solicitor to advise a client “in any situation which may require appearance in the Supreme Courts” that the client has a choice of instructing a solicitor advocate or an advocate, and prescribe the content of that advice. Issues arise about evidence of compliance with the rule, prediction of costs and the extent of comparison required. Failure to observe the rule may be treated as professional misconduct.

The Society of Solicitor Advocates believes these rules place an unnecessary additional burden on solicitors. Clients have the benefits of other protections in terms of the Code of Conduct for Scottish Solicitors 2002. The potential for breach of the rules is high. Solicitors in firms or organisations (such as public bodies) who routinely instruct members of the Faculty of Advocates without considering the possibility of instructing a solicitor advocate are just as much in breach of the rules as any solicitor who instructs a solicitor advocate without giving his client the requisite advice.

The second motion seeks to amend the Sheriff Court Rules and related regulations, to secure parity of treatment in sheriff court proceedings for solicitor advocates and advocates. Neither the rules, nor the Acts of Sederunt concerning fees of solicitors in the sheriff court, nor the civil/criminal legal aid regulations allow for certification of a solicitor advocate, regardless of seniority or specialist knowledge. Clients who choose a solicitor advocate as their specialist pleader should be able to recover their costs.

Alayne Swanson, President of the Society stated: “These two motions are the latest step in the ongoing campaign by the Society to create in Scotland a level playing field for solicitor advocates and members of the Faculty of Advocates. Significant developments have occurred in England, where there is much greater parity. For example England has no ‘mixed doubles’ rule, and has recently introduced new rules on equality of court dress. The Society of Solicitor Advocates urges all solicitors to support these motions.