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Wider choice and better protection: A consultation paper on the regulation of legal services in Scotland

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Chapter 8: The Faculty of Advocates

8 This chapter explores the regulatory position of advocates, and the Faculty's response to the Government's policy statement.

Regulation and governance

8.1 The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as advocates before the Courts of Scotland. It has been in existence since at least 1532 when the College of Justice was set up by Act of the Scots Parliament, but its origins are believed to predate that event.

8.2 The basis on which the Faculty operates as a regulator of advocates is set out in the Faculty's Guide to the Professional Conduct of Advocates as follows: 43

"The Faculty of Advocates is a self-governing body consisting of those admitted to the office of Advocate in the Court of Session. The formal act of admission to that office is an act of the Court and an Advocate can ultimately be deprived of his office only by the Court. But, by long tradition, the Court has left it to the Faculty of Advocates (a) to lay down the qualifications for admission, (b) to determine whether an applicant for admission satisfies those qualifications, (c) to lay down the rules of professional conduct, and (d) to exercise disciplinary authority.

The Dean of Faculty is the elected leader of the Faculty of Advocates and, again by long tradition, the Faculty entrusts him with wide powers to make rulings on matters of professional conduct and, subject to the Disciplinary Rules of Faculty, to exercise disciplinary authority. The Dean's Council is a consultative body whose function is to advise the Dean on these and other matters.

In practice therefore, the legal and professional rights and obligations of an Advocate depend:

(i) upon the fact that he holds the office of Advocate in the supreme Courts of Scotland; and

(ii) upon the fact that he is a Member of the Faculty of Advocates and is subject to the disciplinary authority of the Faculty and its Dean."

8.3 In effect, the Faculty exercises a dual role of representing the interests of advocates and, on behalf of the Courts, regulating advocates in the public interest and in the interests of justice.

8.4 The Faculty is led by its Dean, who is elected by the whole membership, supported by the Vice-Dean, Treasurer, Clerk, Keeper of the Library and Chairman of Faculty Services Ltd, all of whom are also elected. In 1992 the Faculty adopted a constitution for an elected Council of advocates. The Council, which advises the Dean, has power to formulate and implement policy for the administration and development of the Faculty; the maintenance of the Advocates Library; the provision of administrative facilities through Faculty Services Ltd and the formulation of regulations governing admission, codes of conduct and professional practice.

8.5 Complaints against advocates are considered by the Scottish Legal Complaints Commission, although issues of professional misconduct will be referred by them to the Faculty. The Disciplinary Rules of the Faculty 44 provide for non-advocate involvement in the disciplinary process - three of the six members of a disciplinary tribunal will be non-advocate members from a panel appointed by Scottish Ministers.

8.6 Concerns have been expressed that, as with solicitors, the joint exercise of regulatory and representative functions creates a potential conflict of interest - or at least the perception of such a conflict. Consumer bodies have argued that there should be independent regulatory oversight of advocates and a Council with a non-advocate chair and majority of non-advocate members. 45

8.7 The Faculty's position is that advocates are indeed subject to an oversight regulator - the Lord President of the Court of Session. It argues that the oversight of the Bar by the court is a common practice across the world, and that to fundamentally change that relationship would raise issues concerning the independence of the courts from Government. Furthermore, it contends that the small size and collegiate nature of the Bar makes the current regulatory regime proportionate and effective, and a new regulatory structure would add to the overheads of the Bar, increasing costs to consumer with, in its view, no significant related benefit.

8.8 The Government is not currently persuaded that a new regulatory regime for advocates is warranted, and does not propose to alter the status of advocates as holders of a public office granted by the Court of Session.

8.9 Although this Bill is fundamentally about ABS our discussions with the Bill Reference Group highlighted that it would be helpful to codify the regulatory framework governing advocates, including the role of the Lord President within this framework. This suggestion received general endorsement from both the Faculty and consumer groups in the Bill Reference Group, and would sit alongside the provisions of the Judiciary and Courts (Scotland) Act 2008, which sets out provisions for the operation of the courts under the leadership of the Lord President.

8.10 In doing so, we will consider, in consultation with the Lord President, how best such codification might reflect the regulatory principles outlined in chapter 4.

Position on ABS

8.11 Advocates are bound by a rule 46 that "[an advocate] cannot enter into partnership with another advocate or with any other person in connection with his practice as an advocate". In effect, all advocates must practice as sole traders. Bodies such as the CFS, Which? and the OFT have argued that this prohibition on partnerships should be lifted.

8.12 The Faculty set out the following arguments for maintaining these restrictions in Access to Justice: a Scottish Perspective: a Scottish Solution.47

  • The referral Bar provides choice to consumers of legal services, many of whom may not have access to the large specialist firms of solicitors concentrated in cities. Access to justice in Scotland would be diminished and public choice reduced if advocates operated in partnerships.
  • The "cab-rank" rule offers consumer protection. Advocates cannot pick and choose cases or clients. Advocates would be bound by the duties of any partnership or firm in an ABS and the "cab-rank" rule could not be maintained.
  • The position of the Scottish Bar is significantly different to that of barristers in England. Apart from the huge disparity in size (17,000 barristers compared to 460 advocates), which has implications for the operation of the legal market, it is already the case in England that barristers can be employed in solicitors' firms. Allowing barristers to operate in partnership with solicitors (as is envisaged by the LSA 2007) is a less radical change than altering the position of advocates.
  • The current model reduces the administration and the financial burden that partnership would bring. The current structure means that advocates are not diverted from the practice of law to operate a firm. Communal use and shared costs associated from the use of the Library and Faculty Services Ltd ensures reduced overheads.

8.13 The Faculty's response also supported certain changes to their Rules. The "mixed-doubles" rule, which prevented the instruction of an advocate and solicitor advocate in the same case, was subsequently removed by the Faculty in September 2008. The Faculty also proposes widening measures on direct access by clients in appropriate circumstances.

Transfer between advocates and solicitor advocates

8.14 The Faculty argue that the maintenance of their restrictions does not prevent anyone who practices advocacy from participating in an ABS. Advocates would be able to join any new structures by opting to become solicitor advocates. Solicitor advocates have the same rights of audience as advocates. The main differences are that solicitor advocates are regulated by the Law Society of Scotland and are not bound by any of the structures under which the Faculty operates.

8.15 The Faculty's response points to some current restrictions, removal of which would simplify the process of transfer from the Faculty to the solicitors' branch.

8.16 The Government's response to the OFT report on the Which? super-complaint stated:

"Arguably, it may not be necessary to remove all restrictions on how Faculty members operate if those wishing to adopt different practice models, or consumers wishing to access different groups of services, can do so using solicitor advocates. For that argument to be justified, it would be necessary for solicitor advocates to enjoy the same rights and status as advocates, and for it to be straightforward to switch from one branch of the profession to another. We will wish to consider whether this approach may be a practical way of securing the benefits of liberalising the provision of advocacy services in the courts."

8.17 Against this approach, it could be argued that it maintains restrictions which some, albeit a minority, of the current members of Faculty wish to see removed. If there are significant reputational or other factors which might discourage those wishing to participate in ABS from taking the solicitor advocate route, the argument that consumer choice is ensured would be weakened.

8.18 On balance, the Government is not currently persuaded that it is necessary to require the Faculty to permit its members to form partnerships or participate in ABS, provided transfer between the two branches of the profession can be a straightforward proposition which does not involve substantial detriment to the practitioner. We propose to work with the Law Society of Scotland and the Faculty to consider the various issues which might facilitate ease of transfer, including entry requirements, transfer arrangements, and mutual recognition of practice and continuing professional development.

8.19 This approach would not prevent the Faculty from adopting a different position in future concerning ABS, since the restrictions are contained in its own rules, rather than in statute.

8.20 We also wish to consider how to ensure that consumers are clear about the nature of the relationship they have with a person providing advocacy services, and the choices open to them. While solicitor advocates and advocates perform essentially the same task, there are significant differences in the duties they owe to clients and the courts, fundamentally based on the fact that the solicitor advocate has a contractual relationship with a client, while the advocate acts in the exercise of a mandate. 48 This means, for example, that advocates cannot sue for fees. The mandate also gives them greater power than a solicitor advocate to take certain decisions in relation to a court action without the express authority of the client.

Questions

32 Do you agree that the Faculty should not be required to allow its members to form partnerships or participate in ABS, provided that those wishing to do so can easily become solicitor advocates?

33 Do you believe that the regulatory framework of the Faculty should be organised into a code set out in law?

34 Do you believe that the regulatory framework of the Faculty described in paragraphs 8.1 to 8.10 should be changed in any respect?