News In Focus
23 April 2009
Solicitor advocates stand by their rules
Solicitor advocates voted last night to reaffirm their present stance over the practice rules relating to representing clients in court.
A large turnout at the extraordinary general meeting of the Society of Solicitor Advocates called in the light of the judges' criticisms in the Woodside appeal earlier this year, discussed and eventually rejected the judges' criticisms on each of the three main points of contention.
Regarding instructions to solicitor advocates, on which the Woodside judges criticised the practice of solicitor advocates accepting instructions from within their own firms, in light of a 2003 practice rule (rule 3) which requires clients to be given the choice of advocate or solicitor advocate, members accepted that objective advice directed to the client’s best interests must be given at all times to assist the client to make an informed choice of representative. Junior solicitors instructing senior colleagues have a duty to exercise independence and take appropriate action if concerned about the representation being provided.
However the meeting was clear that the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 are designed to ensure that the instructing solicitor instructs a solicitor advocate or advocate of appropriate skill, specialisation and experience to the task and who will charge an appropriate and reasonable fee. The duty to ensure competent representation provides clients with the same protection as rule 3, which is why the Society secured a resolution at the Law Society of Scotland's AGM last year for rule 3 to be revoked.
On the second criticism, the practice of solicitor advocates self-certifying themselves to act as seniors, the meeting heard that following consultations including with the judiciary, the Council of the Law Society of Scotland had set up a committee, chaired by a sheriff principal to recommend solicitor advocates for remuneration as seniors for legal aid purposes. A list of accredited seniors should be available by 1 September 2009. John Scott, Vice-President (Criminal) of the Society of Solicitor Advocates, said it was therefore disappointing to read the comments in the Woodside judgment about self-certification.
The meeting also rejected the judges' suggestion that the difference in business structures between solicitors and advocates had any bearing on the central question of independence. Both the Law Society of Scotland and the Faculty of Advocates subscribe to the principles espoused by the Code of Conduct of the Council of European Bar Associations (the CCBE), which include the fundamental principles of independence, trust, personal integrity and confidentiality.
Alayne Swanson, the solicitor advocates' President, said they welcomed the opportunity to discuss with so many solicitor advocates the issues arising from Woodside, which were of significance for all solicitor advocates. "In the end of the day, solicitor advocates have every incentive to do an excellent job for their clients and I believe that our commitment to independence, trust, personal integrity and confidentiality is exactly the same as members of Faculty. Clients deserve the best representation they can get and it is our duty to ensure representation to the highest standard in every case.”
The meeting passed a resolution stressing the existing duties of solicitors and solicitor advocates and the right of solicitor advocates to accept instructions from solicitors with whom they are in a business relationship. This resolution will also be put to the Law Society of Scotland's AGM on 28 May.