Rights of audience in Scotland

A leading judge has drawn attention to problems concerning rights of audience and the role of solicitor advocates in Scotland’s supreme courts.

Lord Gill, the Lord Justice Clerk, highlighted situations where a solicitor advocate accepted instructions from his own law firm without advising clients of the availability of counsel and ‘unmonitored self-certification’ of competence as a senior or leader in serious criminal cases.

The Lord Justice-Clerk, sitting with Lords Osborne and Nimmo Smith, was issuing a judgment in the Court of Criminal Appeal in the case of Alexander Woodside who was convicted of murder.

Until the introduction of the Law Reform (Miscellaneous Provisions) (Scotland Act) 1990, only advocates were allowed to plead in the High Court and Court of Session, Scotland’s supreme criminal and civil courts. The Act extended rights of audience to suitably qualified solicitors and there are now about 250 registered solicitor advocates in Scotland competing for work with advocates.

Lord Gill said the court was not concerned with the policy considerations that lay behind the introduction of solicitor advocates nearly 20 years ago, but it was right that it should comment where weaknesses in the operation of the system might put the interests of justice at risk.

At the time of the trial, the solicitor and solicitor advocates involved had been bound by Code of Conduct rules which stated that where a solicitor was advising a client about a case which might require a court appearance, he should inform his client of the respective advantages and disadvantages of instructing a solicitor advocate and counsel.

On the question of seniority Lord Gill stated:

‘When senior and junior counsel are instructed in a defence their roles and responsibilities are clear-cut and well understood.

‘The concept of seniority is in my view conducive to the due administration of justice. It does not apply in the case of solicitor advocates.

‘In the 1992 Code the terms “senior solicitor advocate” and “junior solicitor advocate” were not defined. When two solicitor advocates conduct a defence together the leading solicitor advocate is not necessarily senior to the other in terms of admission as a solicitor or admission as a solicitor advocate, or for that matter in terms of experience and skill.

‘….in practice there is no concept of seniority other than for the purpose of charging fees.

‘The undisputed evidence in this appeal is that when two solicitor advocates appear together, the nominal leader, whether or not he is senior to his colleague in any respect and regardless of his experience, is paid as if he were a Queen’s Counsel.

‘Such a solicitor advocate may have little experience and may be ineligible for silk. That rule creates an incentive that may not be in the interests of justice.’

Lord Gill concluded that the Code of Conduct concerning advice to the client about the option of instructing counsel had been disregarded in this case. The obvious weakness of that part of the Code was that while it imposed a professional obligation, it provided no practical safeguard against it being ignored.

The case also highlighted a more serious problem, Lord Gill added. It arose from the fact that a solicitor advocate could accept instructions from his own firm.

‘It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel or a solicitor advocate from outside his firm in circumstances where either of these options might be in the client’s best interest.’

On the question of self-certification of competence, Lord Gill pointed out that to attain the rank and dignity of Queen’s Counsel, members of the Bar or solicitor advocates had to demonstrate the length and range of their experience and the quality of their skills and judgment.

The Dean of Faculty supervised the representation of accused persons in the High Court by members of Faculty to ensure that serious and difficult defences were not put in the hands of inexperienced counsel.

‘With solicitor advocates, however, the position seems to be one of unmonitored self-certification,’ added Lord Gill.

‘From the standpoint of the administration of justice, the idea that any solicitor advocate can accept instructions, perhaps from his own employee, as leader in a serious trial regardless of his experience and skill is a matter for concern.

‘The rules provide no safeguard to protect the accused in such a case from being defended by an inexperienced solicitor advocate whose reach exceeds his grasp.

‘This case has highlighted problems of rights of audience that seem not to be unique to this case. I think it would be opportune if there were to be a review of the working of the system overall.’

The case has led to a sharp difference of opinion between the Faculty of Advocates and the Law Society of Scotland, the solicitors’ governing body.

The Law Society  has asked Scotland’s Justice Secretary to set up an independent review to look at all aspects of rights of audience in the Supreme Courts but Richard Keen QC, Dean of the Faculty of Advocates, has described the Law Society’s response as an abdication of its statutory responsibility as the regulatory body for solicitor advocates.

Mr Keen said it was not appropriate for the Law Society to ‘kick this into the long grass,’ adding: ‘It is something that should be addressed now in the interests of justice and the consumer.’