The work of the Society's Professional Practice Department, of which the valued advice service to members is only a part
The Professional Practice Department, although one of the Society’s smallest departments, is one of the best known aspects of the Society’s professional support to members and their employees. It currently has four solicitors: the Director, Bruce Ritchie; Fiona Robb; Stella McCraw; and John Scott, all of whom had substantial experience in private practice before joining the Society.
The core function of the department is to provide solicitors with advice and guidance on ethics and professional practice matters, with particular regard to the application of the Society’s rules and guidelines to individual circumstances. The department has developed a protocol for solicitors seeking such advice. The full text can be found at: www.lawscot.org.uk/Members_Information/rules_and_guidance, where there is a link to a pdf file, but the principal statement is:
“The information provided by an inquirer seeking advice will be kept confidential unless it involves dishonest handling of client’s money or money laundering by a solicitor [as opposed to a client]… Staff handling and responding to a request for assistance are required to maintain the confidentiality of the caller’s identifying information within the Professional Support team… [Apart from such dishonesty] inquiries shall not trigger an inspection, audit, investigation etc of the inquirer’s firm.”
Requests for guidance
Some of the specific matters on which the department can give guidance are:
- conflict of interest, including requests for waivers from the specific provisions of the practice rules;
- confidentiality and privilege;
- advertising and other promotional activities;
- moving to a new firm or starting up a new practice;
- and all aspects of money laundering and the reporting requirements of the Proceeds of Crime Act.
The Society cannot instruct a solicitor on a matter of professional practice or ethics – for example it cannot require a solicitor to cease acting for a client – but it can give an objective view on the situation to assist solicitors in coming to their own decision. Sometimes that advice will be fairly firm, for example that a particular course of action would be in breach of the practice rules or contrary to a practice guideline.
Many solicitors prefer to be able to say to clients that the Society’s rules prohibit them from doing something, rather than give the impression that the solicitor personally is refusing to accept instructions. In most instances the solicitors who contact the department already have a good idea of what the answer to a particular enquiry will be and are seeking reassurance, which the department is happy to give.
One important point for callers to remember when seeking guidance is to keep a proper note on the file which can be referred to at a later date if the matter becomes the subject of a complaint or claim. If you are seeking advice from the department it is essential to give the whole story, as the team can only advise on the information given to them. It is not uncommon for us to give advice to one solicitor on a matter and then receive a call from the solicitor on the other side with some further relevant information. If you wish the Society to confirm the position in writing, send an email or letter following up the telephone enquiry and a confirmatory reply will be sent.
Professional Practice Committee
The department also serves the Professional Practice Committee, which consists of 16 members, mostly from private practice but also including some in-house solicitors and three non-solicitors whose contribution is valuable. The committee considers matters of policy in relation to the practice rules and guidelines, and has delegated power to deal with waiver requests in particular cases. As well as the actual rules, from time to time the committee publishes guidelines to assist solicitors in interpreting the various rules. The purpose of these guidelines is to provide assistance to solicitors in applying the rules to certain practical situations.
Needless to say the committee work is only the tip of the iceberg, as the department receives a very large number of enquiries from the profession, dealing with several hundred telephone calls each month as well as hundreds of emails and written enquiries. In addition Bruce and John give regular talks to the profession at seminars organised by Update and by local faculties. The team are available for seminars on a range of aspects of professional practice. If a local faculty wishes to avail itself of this facility they should contact Laura Malcolm on 0131 476 8111 or email email@example.com .
Practice rules and guidelines
Section 34 of the Solicitors (Scotland) Act 1980 empowers the Council to make practice rules. Before such rules can be made, a draft requires to be circulated to all members of the Society and submitted to a general meeting. The Council must take into consideration any resolution passed at that meeting, although it is not binding unless passed at two successive general meetings. After members have been consulted and Council has made the rules, they require to be submitted to the Lord President for approval before formally coming into force.
The Professional Practice Committee does not have any power to make practice rules, but it does recommend rules to Council from time to time either in relation to new matters or to update existing rules in the light of changed circumstances.
In 2008 Council converted the Code of Conduct for Scottish Solicitors into the Practice Rules on Standards of Conduct, which came into force on 1 January 2009. The Code had been published in 1989 and was based on the Code of Conduct adopted by the European bars. It contained a statement of the basic values and principles which form the foundation of the solicitor profession. Although it was not a practice rule, it was referred to for guidance in assessing whether or not a solicitor’s conduct met the standard required by a member of the profession.
The new rules, like all other practice rules, are binding on solicitors and breach may be treated as misconduct or unsatisfactory conduct. The standards themselves are almost identical to the previous Code, so contain nothing substantially new. It will however be essential for solicitors and trainees to become familiar with their terms.
The committee has also published practice guidelines on a wide range of matters, which are kept under regular review. Recent topics have included interest on client funds, and updated versions of earlier guidelines on conflict of interest; confidentiality; ownership and destruction of files; and comments to the media. All the practice rules and guidelines are published, not only on the Society’s website www.lawscot.org.uk in Members Information (click on Advice Rules & Guidance), but also in Greens Solicitors Professional Handbook; and in the Parliament House Book, vol 3, section F.
The department services a number of other committees, including the Professional Remuneration Committee. That committee supervises the annual Cost of Time Survey, which is carried out between April and September by an independent actuary, Dr John Pollock.
This is a vital part of the Society’s work, allowing us to strongly represent the profession’s interests in relation to fees for civil court work, including claims for personal injury, industrial disease or professional negligence, each of which has a pre-action protocol with agreed fees. The figures brought out in the survey provide the evidence which the Society needs to make submissions to the Lord President on the level of fees in the court tables, and also allow us to publish a historical figure of the cost of running the average practice expressed as an hourly rate. The rate in 2009 was £140.12, a reduction from 2008 when it was £146.28.
Gratifyingly, the number of firms taking part in the survey has been about 20% of all practices in recent years, but more participants are always welcome. The committee urges firms to complete the questionnaire when it is circulated. There is a prize draw, and three hours’ management CPD is allowed for the partner completing the form.
Civil court procedure
Another committee served by the department is Civil Procedure, which has also been known as the Civil Justice Committee. It responds to proposed changes in court rules and also lobbies for other changes in the civil justice system. It made a detailed submission to the Civil Courts Review chaired by Lord Gill, including a supplementary paper on the shortfall in recovery of expenses compared with the cost payable by successful parties to their own agents and counsel.
These papers can be found at: www.lawscot.org.uk/Public_Information/lawreform/2008/Civil_Justice.aspx
Although the volume of transactions is now lower than for most of the last few years, conveyancing remains a very significant area of practice for members of the Society and the department receives several enquiries about conveyancing practice every day. John Scott serves the Society’s Conveyancing Committee, comprising 17 members actively engaged in all aspects of heritable property transactions. In the last year or two there has been a strong focus on ARTL and home reports, which have both been the subject of many Journal articles and seminars involving the previous committee secretary James Ness. For a fuller article on the work of the Committee see Journal, January 2004, 54 (also on www.journalonline.co.uk). Guidance published by the committee can be found under Conveyancing Essentials in the Members Information section of the Society’s website.
As can be seen, the department deals with a broad range of matters. Although small, it is a very significant part of the Society’s service to its members, and a key part of the wider Representation and Professional Support team and work. The staff in the department are able and enthusiastic and will be happy to deal with your enquiry, however simple it may be, so do not feel any need to apologise for seeking advice. Think of us as your own solicitor.
Rights of audience: ongoing review
Bruce Ritchie in the department deals with the process of becoming a solicitor advocate in the High Court and the Court of Session (with the invaluable assistance of the Update Department in organising the training courses). It is pleasing that a good number of candidates have taken part in the qualification process in recent years. Further information can be obtained on the website.
A total of 324 solicitors have been granted rights of audience since the first in 1993, although some have since retired or become sheriffs. One, Kenneth Maciver, has been appointed a temporary judge in the High Court. There are currently over 260 solicitor advocates practising, of whom six have rights of audience in both the High Court and the Court of Session, 133 have rights in the High Court only, and 132 in the Court of Session only. Among the total are eight Queen’s Counsel. It is hoped that these numbers will continue to increase in future years.
Rights of audience are the subject of considerable interest following the observations of the High Court in the Woodside case in February 2009, and the subsequent review by Ben Thomson appointed by the Justice Secretary. The Society set up a Rights of Audience Working Party to represent the profession’s interests and has made submissions at meetings with Mr Thomson. The working party has also commented on the draft report both in writing and at a further meeting with Mr Thomson, who is due to present his final report in March.