Society withdraws from counsel's fees scheme
14 Jan 08
Solicitors now able to conduct own negotiations with advocates over payment of fees
Solicitors are now able to conduct their own negotiations with advocates and Faculty Services Ltd over payment of fees, following withdrawal by the Law Society of Scotland from the Scheme for Accounting and Recovery of Counsel's Fees.
The withdrawal took effect from 10 January in line with a decision by the Society's Council on the recommendation from the Civil Procedure Committee. This is turn followed a consultation with the solicitors' profession in April 2007 which revealed strong support for ending the scheme, in the wake of the Faculty expanding the categories of those able to instruct advocates direct rather than through a solicitor.
All fees for instructions sent to counsel prior to 10 January 2008 will still be dealt with under the scheme, last revised in 2002. The scheme regulated when fees for work instructed by solicitors were to be regarded as due, and allowed fees rendered to be paid in blocks.
The Faculty of Advocates has itself issued a new Scheme for Accounting, which can be found at http://www.advocates.org.uk/2008scheme.html . This new scheme, like the old one, includes a professional obligation on solicitors to make payment of counsel's fees, but the Society is not a party to the new scheme.
The Society's view is that it is open to firms to negotiate with counsel or their clerks on whatever basis they wish, including seeking to delete the reference to a professional obligation to make payment of counsel's fees. Such negotiations are entirely a matter between solicitors and counsel or Faculty Services.
The Society adds that while it has no contractual obligations under the Faculty's scheme, if a solicitor agrees to instruct counsel on the basis of that scheme or any other agreement which includes such a professional obligation and fails to make payment of the fee, it will be open to the Dean of Faculty or the counsel concerned to make a complaint to the Society in relation to the solicitor's conduct in failing to fulfil that obligation.