THE LEGAL profession in Scotland is in the midst of a regulatory review, overseen by Esther Roberton. One of the issues raised is the question of internal instruction of solicitors with extended rights of audience, usually referred to as solicitor-advocates.
The ability of a solicitor to seek extended rights of audience, entitling him or her to plead before the Supreme Courts – the Court of Session, High Court, UK Supreme Court and Judicial Committee of the Privy Council – was introduced in the early 1990s.
Solicitor-advocates are thus an enduring and valued part of the legal landscape, and they contain some of the most able practitioners.
But the innovation has not been without its difficulties. A problem which has arisen comes from the internal instruction of solicitor-advocates - where a solicitor requires to arrange representation of his or her client before the higher courts and decides to instruct a solicitor-advocate who is a partner in the same law firm.
This was first raised as a problem by the High Court of Justiciary in the 2009 case Woodside v HM Advocate. As Lord President Lord Carloway said of the case at the 2016 World Bar Conference: “The High Court voiced concern that the accused had not been given sufficient information to make an informed choice about his representation”.
“That is to say, he had not been given adequate information about the pros and the cons of representation by a solicitor-advocate as opposed to counsel, and in a charge of murder, his right to be represented by a QC, whether counsel or solicitor-advocate,” he continued.
“The other concern of the court was the instruction of in-house solicitor advocates, which the court in that case considered to involve a potential conflict of interest. The conflict arises from the simple fact that, if an instruction was retained in-house, the firm would benefit financially.”
The problem has not gone away. It has been adverted to again in two further cases, both from 2015: Addison v HM Advocate and Yazdanparast v HM Advocate.
The Faculty of Advocates believes that this remains a problem. Our concern is that the process of internal instruction can be both anti-competitive and contrary to the interests of clients.
As to the first of these concerns, the split nature of the legal profession means that the solicitor is the ‘gateway’ for any client facing litigation. Counsel have no direct contact with clients in litigation and may only act in litigation if instructed to do so by a solicitor.
If any given solicitor chooses only to instruct members of his or her own firm for cases in the Supreme Courts, there is nothing that counsel can do about that.
As to the second concern, the Faculty of course recognises that the ultimate decision of whom to instruct must lie with the client, but that does not fully recognise the influence of the solicitor in the choice to be made. Many clients will be unfamiliar with the litigation process.
The client may thus be wholly or largely reliant on advice from the solicitor as to who should be instructed, which gives rise to the problem of conflict of interest cited in the cases referred to above.
Our principal concern in this matter is that adequate safeguards should be in place to protect the interests of clients.
The Faculty of Advocates has thus suggested that the Roberton review considers tackling the problems posed by internal instruction, including the need for informed consent.
The Lord President has already introduced requirements that additional information is provided to clients who are facing criminal proceedings in the High Court. However, the Faculty queries whether these are sufficient and notes that no similar protections exist for civil proceedings.
We recognise the importance of choice in the market: that is fundamental. We welcome the competition introduced by solicitor-advocates: competition is healthy. We acknowledge that clients may well wish to instruct a given solicitor-advocate, alone or in conjunction with counsel.
The Faculty’s position is one which encourages rather than limits competition; where the client is unarguably given access to the widest possible information and choice; and where the best interests of the client and the wider public interest are paramount.
Roddy Dunlop QC is treasurer of the Faculty of Advocates.
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