I NOTE the article by Roddy Dunlop QC ("Why there must be safeguards over internal instruction", The Herald, August 15). Readers who are not lawyers may be baffled that the Faculty of Advocates is still finding ways to complain about competition from solicitor advocates 25 years after the legislation permitting solicitors to gain rights of audience in the superior courts came into force. It is suggested that solicitors should not be allowed to instruct their own solicitor advocate colleagues. I declare an interest as a solicitor who has held those extended rights of audience for virtually that whole period.
From the outset, rules applying to solicitors and solicitor advocates have been designed to ensure that solicitors give appropriate advice about representation and that solicitors and solicitor advocates do not undertake work for which they do not have the necessary skills and experience. Why would a solicitor recommend someone other than a competent person to represent his or her client in a case in the highest courts in the land? If that competent person is a colleague rather than a member of Faculty, what is wrong with that?
Mr Dunlop referred to the Lord President’s speech in 2016 in which the Lord President discussed this question. In one of the cases he mentioned, his predecessor, Lord Gill, went so far as to suggest that a solicitor’s advice on representation could not be trusted, effectively in any circumstances (Addison v HMA [2014] HCJAC 110 paragraph [26]). This extremely troubling statement has to be understood against the background that, with one exception, all Scotland’s senior judges spent most of their careers as practising advocates and the way in which the Faculty of Advocates, and not the solicitor profession, has chosen to regulate the way in which its members do business.
The only significant difference between the rules of conduct applying to advocates and solicitors is the self-imposed rule applying to advocates which dictates that advocates cannot enter into a business relationship with another advocate or solicitor to conduct advocacy work. This is because the Faculty maintains that only a sole practitioner lawyer can give wholly independent advice. Scottish solicitors, despite rules of conduct stating precisely the opposite, will apparently always be tempted to put their own or their colleagues’ interests before those of their client. An advocate can apparently be trusted to recognise when any other interest he or she may have cuts across the interest of any client but a solicitor cannot. An advocate can be trusted to put the interests of the client ahead of his or her own when advising a client about settlement in a no win/no fee case where the acceptance of an offer would guarantee payment of the advocate’s fee. On the other hand, apparently, a solicitor cannot be trusted to give a client advice about representation when one possibility is the representative will be a colleague.
The Faculty of Advocates complains that solicitors are the gate keepers to instruction but this is also entirely a matter of their own choice. If the Faculty decided to permit direct instructions from all clients (which it already does in limited circumstances) solicitors could not possibly complain.
Tom G Marshall,
8 Manse Street, Aberdour, Burntisland.
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