Faculty stands up for independent referral bar

Legal service changes should not include advocates in partnership, minister told

News, 16 May 2008

The existence of an independent referral bar is a cornerstone of the Scottish legal system, and should not be put in jeopardy by allowing advocates to enter into partnership, the Faculty of Advocates has reaffirmed.

In its submission, just released, to Kenny MacAskill, the Cabinet Secretary for Justice, on the Office of Fair Trading's call to remove restrictive rules over the provision of legal services in Scotland, the professional body for the Scottish bar also claims that the OFT is simply wrong to suggest that such a move would permit economies of scale and the cheaper provision of services.

The Faculty produces in support of this claim an independent report it commissioned from Professor Frank Stephen and Dr Angela Melville of the Institute for Law Economy and Global Government at the University of Manchester School of Law. The authors reach this conclusion because members of Faculty already benefit from economies of scale through participation in Faculty Services Ltd and shared facilities such as the Advocates' Library.

However the Faculty puts forward proposals for changes in the relationship between advocate and client which would mean some cost savings for clients, though their implications would have to be carefully considered.

Cab rank rule "fundamental"

On the principal issue of partnership, the Faculty disagrees with the Law Society of Scotland's comment in its policy paper that the core values of the two branches of the profession are virtually identical. It claims in response: "The core value of an independent referral bar is acknowledgment of the cab rank rule" - the rule that requires an advocate to accept instructions in any field in which he or she professes to practise, on being offered a reasonable fee.

It is this rule, it points out, that preserves the advocate's independence from their client, and "which makes the representation of unattractive and even reprehensible clients morally acceptable". The cab rank rule could not exist if advocates were to go into partnership because of the conflicts of interest that would exist between those representing different parties to a case.

And the importance of an independent referral bar to a jurisdiction such as Scotland is that "there is an independent source of expert advocacy and legal advice to persons throughout Scotland".

Easier transfer, and access

The Faculty proposes that a member who wishes to join a partnership should do so as a solicitor advocate, and should automatically retain the rights of audience already acquired as an advocate. Along with this, it accepts that the need should be addressed for clients to have unhindered access to advocates and solicitor advocates of their choice, which would require a change to the present rule against "mixed doubles".

In addition, it continues, "the time may have come when the relationship between advocate and client is put on a more formal contractual basis". This might have wide ranging implications, but would enable an advocate to appear in court without the instructing solicitor being present, which could mean "a considerable saving in cost for the consumer or client". Along with this the Faculty would reconsider the present limitations on an advocate being able to speak to a witness.

The Faculty offers to seek approval and implementation of these changes this year, affirming its belief in the desire for change in both branches of the legal profession in Scotland. "Ultimately what we must have in mind is the maintenance of an effective system of justice which respects the rule of law; and access to such a system for the entire Scottish community."

The Faculty's submission can be read via its website www.advocates.org.uk .