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Solicitor advocates protest at Faculty submission to Roberton review

19 April 2018

Comments in the Faculty of Advocates' submission to the independent review of legal services regulation in Scotland have been challenged by the Society of Solicitor Advocates.

The body representing solicitors with extended rights of audience in the higher courts of Scotland has presented a further submission to the review under Esther Roberton, taking the Faculty to task for "incomplete and potentially misleading" statements.

In its submission the Faculty revisits judicial comments in the cases of Woodside, Addison and Yazdanparast over the instruction of a solicitor advocate by a solicitor belonging to the same firm. It complains of the potential conflict of interest involved, given the professional duty of a solicitor to give clear advice in particular to an accused client of the options available to them if legal aid for counsel has been granted. Although procedure rules have since been introduced for criminal cases, requiring solicitors to identify a selection of counsel, Faculty complains that this is "often treated as a mere 'box ticking exercise'", and the issue "raises fundamental questions of both access to justice and fairness of competition". 

It calls for consideration to be given to primary legislation forbidding the internal instruction that gives rise to the "in-house conflict", so that a solicitor would be able to instruct any counsel or solicitor advocate except one in the same firm.

In response the solicitor advocates accuse Faculty of offering "a skewed picture of an important aspect of access to justice for the citizen and consumer", and a "fundamental misunderstanding of the relevant rules".

Their submission continues: "The whole point of these reforms almost 30 years ago was to increase client choice, allowing a solicitor who already had the client's confidence to take additional steps by way of training and examination to be able to represent him/her in the High Court of Justiciary and Court of Session...

"In just a few short paragraphs, brimming with undisclosed self-interest, a suggestion is made in the Faculty response which would have a major effect in reducing client choice and, in effect, coming close to re-establishing the monopoly which preceded implementation of the 1990 Act, a monopoly held by the members of the Faculty of Advocates."

It adds that there is no evidence of lack of compliance with the new rules, and that judges at preliminary hearings are able to enquire into compliance.

As for the potential conflict of interest, "it is one which occurs commonly for advocates, solicitors and solicitor advocates and is readily managed by obtaining informed consent and observing the relevant professional rules". And it points out that many jurisdictions operate without a split profession, but arrangements for representation "are handled satisfactorily, without the claimed problems arising".

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Faculty of Advocates

Thursday April 26, 2018, 22:41

The Faculty of Advocates notes the criticism by the Society of Solicitor Advocates (SSA) in relation to the Faculty’s submission to the Independent Review of the Regulation of Legal Services in Scotland (the Roberton Review). The Faculty has prepared a formal supplementary response, and this will shortly be submitted to the Review. In the meantime, Roddy Dunlop QC, Treasurer of Faculty, said:

“It is disappointing to find the SSA engaging in a public slanging match, rather than calmly and dispassionately engaging with the issues that arise. Faculty refutes the assertions of SSA to the effect that Faculty has misrepresented or misunderstood certain matters in its own response to the Roberton Review. What is needed is a neutral assessment of conflict of interest in the internal instruction of solicitor advocates (i.e. where a solicitor in firm A instructs a solicitor advocate in the same firm), in order to promote true and fair competition in the interests of consumers. Faculty has from the outset recognised that there will be different viewpoints held by different stakeholders in this important area, and is happy to discuss the issues arising. But to decry the suggestion of conflict as 'absurd' when it has been made three times by this country’s highest criminal court (most recently in Yazdanparast), and yet more recently by the Lord President himself in his speech to the World Bar Conference in 2016, is neither helpful nor accurate.”