Chapter 12 Comparative review of the availability to non-lawyers of rights of audience and rights to conduct litigation
12. One of the tasks of the Working Group was to examine the evidence from Scotland and other jurisdictions on rights of audience and rights to conduct litigation. The term 'rights of audience' was used to describe the entitlement of an individual to represent someone else in court proceedings. In that context it referred to a person providing legal counsel rather than simply appearing as a witness or expert during court proceedings.
12.1 This chapter sets out the current status in Scotland, and looks at rights of audience and rights to conduct litigation across a number of key jurisdictions. In particular, it seeks to determine the extent to which rights of audience in higher courts were available to those within the legal profession firstly, but also those outwith the profession such as paralegals, conveyancers and patent agents. The review was a desk-based exercise drawing on published literature, web-based information and contacts with key informants in the jurisdictions described. The report focused on the following jurisdictions: England and Wales, France, Germany, Sweden, Finland, Australia, New Zealand and Canada.
12.2 With the exception of Sweden and Finland (the least regulated of these) all of the jurisdictions covered by the exercise had experienced change in the structure of their legal professions in recent years, most in the late 1980s and early 1990s. Most of those changes had occurred within the legal profession itself, though in some cases the changes had impacted on other sectors such as the accounting profession and paralegals/legal assistants. This had resulted in changes to rights of audience and litigation.
12.3 In considering the comparative material on rights of audience it should be borne in mind that differences between jurisdictions in relation to rights of audience might reflect or relate to other differences between those jurisdictions, such as the rules of civil and criminal procedure and the extent to which judges were expected to investigate the case independently of parties (and were provided with the resources to do so).
12.4 In Scotland, individuals did not instruct advocates directly, instruction usually being carried out on their behalf by an instructing solicitor. Individual litigants were permitted to conduct their own case where desired, and there were reports of more individuals representing themselves, or using lay representatives (who were not always paid for their services). In general terms however a litigant in Scotland would pay for the services of either a solicitor (in the District and Sheriff courts) or a solicitor advocate/advocate in the Supreme Courts (the Court of Session and the High Court of Justiciary).
12.5 Criminal and civil proceedings in Scotland were conducted on an adversarial basis. The parties produced factual evidence and advanced such legal arguments as they considered appropriate. During the course of proceedings the judge acted as a neutral 'umpire' determining any incidental issue which might arise and ensuring that the proceedings were conducted fairly. In most civil proceedings and in summary criminal proceedings the judge was also the decision-maker and adjudicated on the basis of the facts established in the evidence and legal submissions advanced by the parties. There were two broad reasons for restricting rights of audience to persons with appropriate qualifications and experience. Firstly, to protect the interests of the clients, and in particular to ensure their interests were competently represented at all stage in the litigation process. Secondly, to protect the interests of the courts, and in particular to ensure that court time was used efficiently and effectively (in a situation of limited resources) by ensuring that judges were able to depend upon those appearing before them to identify the relevant issues of fact and law, to explore fully in evidence relevant issues of fact, and to refer to any relevant legal authorities.
12.6 The Scottish legal profession, prior to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, was divided strictly into solicitors and advocates. Solicitors could exercise rights of audience in the Sheriff and District courts while the Supreme Courts of Scotland (the Court of Session and High Court of Justiciary) were the exclusive territory of advocates. The introduction of 'solicitor advocates' as a consequence of the 1990 Act extended rights of audience to the supreme courts to those attaining the status of 'solicitor advocate' after undergoing the necessary examinations. Those solicitor advocates might elect to exercise rights of audience in either the Court of Session or the High Court of Justiciary or both. While such a change might have been perceived as a dramatic departure from tradition, the history of the Scots legal profession and the high level of representative work undertaken by solicitors in the lower courts meant that resistance to these changes was limited.
12.7 In addition to reforming the role of solicitors, the 1990 Act also contained provisions that allowed the extension of rights of audience and rights to conduct litigation to members of 'any professional or other body'. Such rights would become available following the submission of an application for such access to the Lord President of the Court of Session and Scottish Ministers, and on receipt of the necessary approval. These provisions were among the most controversial in the Bill, which became the 1990 Act. To secure their passage, Ministers of the day gave undertakings that the provisions would not be implemented until other reforms contained in the 1990 Act, such as the introduction of solicitor advocates in particular, had had time to bed down. The case for commencement was reviewed in 1995 and 1997, but it was decided that commencement was not a priority at that time.
12.8 Rights may be applied for by means of a scheme drawn up by the body seeking rights for its members; the scheme has to be approved by the Lord President of the Court of Session and the Scottish Ministers. Bodies are required by the statute to submit a draft scheme for the approval of the Lord President and the Scottish Ministers which :
- specifies the rights they would like (in relation to which courts, categories of proceedings and nature of business);
- describes the training requirements and code of practice which the body would impose on members seeking to exercise such rights; and
- sets out their arrangements for indemnifying members of the public, handling complaints, coping with breaches of the scheme and so on.
12.9 The Scottish Ministers are empowered to make Regulations under section 25(4) of the 1990 Act to prescribe other matters to be included in such schemes. It is for the Lord President to consider any such scheme in its entirety. Scottish Ministers are required to consider such schemes (in consultation with the Office of Fair Trading) in relation to the provision made for training, indemnity, complaints handling, and a code of practice (including any competition aspects) and to ensure that schemes would require appropriate standards of conduct and practice. The Lord President and the Scottish Ministers are required to consult each other in considering the scheme and to take into account any written representations they receive.
12.10 Though the provisions had not been commenced in Scotland, interest had been expressed recently in applying for such rights by the Chartered Institute of Patent Agents ( CIPA), the Institute of Trade Mark Attorneys ( ITMA) and the Association of Commercial Attorneys. Details of grants made to CIPA and ITMA under similar provisions in England and Wales were outlined in CIPA's submission to the Working Group.
The Chartered Institute of Patent Agents ( CIPA)
12.11 Both CIPA and the Association of Commercial Attorneys were interviewed as part of the research process. CIPA felt that the restrictions on rights of audience (as well as a restriction on the choice of forum) for patent agents and patent agent litigators distorted the market in Scotland. CIPA representatives argued that they could not threaten litigation in Scotland because they knew that they would have to pass the matter to a solicitor. In England and Wales, where they enjoyed rights of audience, the threat to sue carried a lot more weight. When clients did litigate, they could no longer advise them and the client had to start over with a new advisor. They argued that they operated as a profession under UK laws, except where it came to litigation. The CIPA representatives outlined how that impacted upon clients in Scotland. They thought that clients often gave up before the litigation stage in Scotland. CIPA felt that they had the technical and professional expertise in their area to provide a competitive service to clients. They noted however that in some instances they did work closely with solicitors in England and Wales. They represented a specialist branch of law. In order to qualify individuals had first to have a degree, though increasingly people had a higher degree before embarking on the 4 year training. There were then 3 levels of separate examinations to qualify as a chartered patent attorney. Since 2003 training for all new candidates seeking rights of audience had been run by Nottingham Trent University.
The Association of Commercial Attorneys
12.12 The Association of Commercial Attorneys had been lobbying for the commencement of the relevant sections of the 1990 Act in Scotland for a few years and had a membership of around 16 professionals. The Association representatives reported that other professionals were interested in joining the Association, but highlighted that there was a stumbling block to further expansion until it became clear that sections 25 to 29 would be commenced; if those provisions were commenced, the Association expected its membership to rise to between 150 and 300. The Association considered Scotland to be 14 years behind England and Wales in liberalising rights of audience and rights to conduct litigation.
12.13 Most of the Association's members came from a litigation background in the construction industry, providing arbitration and mediation services to the construction industry. However, if the dispute had to go to court, the Association's members could not represent their clients in court. Their members had no right to appear in court for action above the small claims procedure jurisdiction, so at the point where a dispute was about to go to court, the client had to instruct a solicitor, who might then instruct an advocate. The Association considered that its members had the technical and professional expertise required to provide good quality representation and would thus be able to provide choice (and better value for money) to consumers.
12.14 The Association emphasised that clients felt that key evidence was not being presented in their cases because of a lack of understanding of the technical nature of the industry. That was the reason the Association's members were employed at arbitration and mediation. Members also frequently undertook the preparation of work for the court. All members were dually qualified with an LLM (in Construction Law), together with other professional qualifications e.g. surveyors, architects, engineers. The Association had not yet established itself as a professional body and believed that it would be premature to do so until sections 25 to 29 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 had been commenced. Issues around insurance, conflict of interest and training were also discussed in the course of the interview.
12.15 The OFT and the Scottish Consumer Council supported commencement of these provisions and considered that there was a significant potential benefit to users of legal services in Scotland in allowing appropriately regulated alternatives to the existing suppliers. Applicant bodies would be required to:
- specify the rights they were seeking on behalf of their members (including the categories of proceedings and nature of the business);
- describe the training programme and codes of practice for the members seeking such rights;
- set out their arrangements for indemnifying members of the public, handling complaints and dealing with breaches.
12.16 The Law Society of Scotland had no concerns about sections 25 to 29 of the 1990 Act being brought into force or about professional or other bodies receiving rights of audience and/or rights to conduct litigation having satisfied the requirements of Scottish Ministers and the Lord President under these sections. The Faculty of Advocates also did not oppose commencement of these provisions. Its principal area of concern was that the interests of the administration of justice in the widest sense, including not only the protection of litigants but also the interests of the Court and the interests of justice, should be adequately protected when any scheme was being considered for approval.
12.17 Non-lawyer advisers were permitted to appear in certain sheriff court proceedings. Research conducted in 1998 illustrated that some Citizen's Advice Bureaux ( CABx) had advisers who were trained lay representatives. Those lay representatives appeared on behalf of clients in the small claims and heritable courts and other forums such as benefit tribunals, employment tribunals, criminal injuries compensation boards, housing benefits appeals and community care assessments. Advisers who wished to appear in employment tribunals and benefit appeals tribunals required to take a two day intensive training course provided by Citizens Advice Scotland.
12.18 As with other non-lawyer advisers, in-court advisers based within the sheriff court could represent litigants in the small claims and heritable courts and in proceedings under the Debtors (Scotland) Act 1987. In practice however, owing to the volume of clients seeking advice, representation was only offered in certain cases where clients were unable to represent themselves.
England and Wales
12.19 The structure of the legal profession in England and Wales was very similar to that existing north of the border. Advocacy in the high courts was primarily carried out by barristers who previously enjoyed a monopoly in this area arising out of tradition rather than any statutory provision. Any individual not wishing to represent themselves in these courts would be obliged to engage a barrister to do so on their behalf. The Courts and Legal Services Act 1990 ( CLSA) founded the rights of audience of English barristers in statute for the first time. The Scottish 1990 Act did not have the same effect for advocates whose rights of audience were based on ancient statute and common law.
12.20 Solicitors in England and Wales were independent lawyers who give legal advice to clients on personal and business affairs. Solicitors did not have rights of audience before the higher courts prior to CLSA and indeed were far less likely to participate in court proceedings than their Scottish counterparts. In spite of initial opposition, solicitors in England and Wales might now also qualify as solicitor advocates under CLSA, though as yet there is no evidence of their providing any real source of competition for barristers. These solicitor advocates had been granted the same rights of audience as their barrister colleagues while remaining entitled to conduct tasks that fell to them as solicitors.
12.21 The impact of the Courts and Legal Services Act 1990 within the legal profession in England and Wales had been felt beyond the limits of the legal profession itself. It had extended the scope of individuals who could conduct probate work, which could now be carried out by non-lawyers as a result of the 1990 Act, and conveyancing work that was now subject to a licensing system and could be conducted by non-lawyers working outside the legal profession as well as by paralegals and other non-lawyers working within it.
12.22 The provisions of the Courts and Legal Services Act 1990 which permitted rights of audience and rights to conduct litigation to be extended to non-lawyer members of authorised professional or other bodies had been commenced. Applications had been made for such rights by a number of bodies outwith the legal profession. Interested bodies had to apply to the Lord Chancellor and applications were assessed on the basis of the prospective training regime being offered to members, the existence of complaints handling procedures, standards of professional conduct and a number of other factors.
12.23 So far three such bodies had been granted permission to appear in the higher courts and then only subject to very specific requirements set by the Lord Chancellor as outlined above. The three bodies which had been granted these rights were the Institute of Legal Executives ( ILEX), the Chartered Institute of Patent Agents ( CIPA) and in April 2005 the Institute of Trade Mark Attorneys. Members of CIPA could of course only act on matters falling within their field of professional expertise such as designs, copyright, trademarks and patents. Those bodies now fell within the remit of the Legal Services Ombudsman along with solicitors, barristers and licensed conveyancers. The Lord Chancellor might grant or refuse applications and might also withdraw rights of audience from individuals/organisations where they breached specific requirements or failed to conduct themselves appropriately.
12.24 ILEX so far had 25 qualified ILEX advocates representing clients in a variety of courts and tribunals and was currently pressing for an extension of those rights to criminal proceedings and the Coroner's court in which legal executives were currently required to obtain additional authorisation. As already mentioned, the Scottish branch of the Chartered Institute of Patent Agents had also recently expressed an interest in using rights of audience which might potentially be available under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.
12.25 While the CLSA attributed rights of audience to classes of people, the courts themselves might also make discretionary decisions on the grant of rights of audience. The court would only contemplate such action in very limited circumstances. Individuals described as ' McKenzie friends' after the 1970s case in which they were first recognised had benefited from such discretion and are discussed in further detail below. Where a litigant hoped to gain assistance/representation from such an individual, he or she had to make an appeal to the court. Where the court granted rights of audience, it did so on a case by case basis only and in general the role of such individuals was restricted to giving advice and support to the litigant. Individuals continued to be able to seek alternative representation in small claims proceedings.
12.26 The French legal profession itself was previously split between avocat, avoué, conseil juridique and notaire. Since a law of 31 December 1990, the profession of Avocat and Conseils juridiques had been combined within the "nouvelle profession d'avocat" which did not include the avoués, notaires and avocats au Conseil d'Etat et à la Cour de cassation. There were some notable restrictions on the ability of the avocat to conduct proceedings in all courts however : they might not appear before the Cour de Cassation or indeed the Conseil d'Etat where the former professional split essentially still existed. Representation was restricted in those courts to an elite branch of the profession who held the status of officiers ministeriels. There were no geographical restrictions imposed on lawyers regarding the right of audience and the possibility to conduct a case before any court in France, providing it was done with respect for the "postulation" rules ( i.e. obligation to appoint a lawyer registered in the bar of the jurisdiction involved; that lawyer would only be in charge of the procedural aspects of the case). There was no exclusivity for lawyers to represent parties before the tribunaux d'instance and the commercial and labour courts ( i.e.Tribunal de commerce and Conseil des prud'hommes) in which the avocat could conduct the entire proceedings themselves (providing the postulation conditions) or indeed the individual litigant could represent themselves.
12.27 The French legal profession thus featured practice restrictions but the role of the avocat was not sufficiently similar to that of the UK solicitor to draw comparisons.
12.28 The French notary ( notaire) had a monopoly over specific legal services which involved documents which had to be authenticated by deed i.e. wills, marriage, contracts, conveyancing and documents dealing with the transfer of real property. The notary was a public servant appointed by the Minister of Justice and did not have a right of audience in the courts.
12.29 The German legal profession had two branches, Rechtsanwälte and Notare. The notarial profession in Germany was split into three different categories:
- Anwaltsnotare (or advocate notaries) who had rights of audience and had to have practised at the bar for at least five years before they could attain the status of an advocate-notary. The opportunity to combine the professions was not open to practitioners in all of Germany's federal states ( Bundesländer) however.
- Amtsnotare (or state-employed notaries) differed from the others in that they were not self employed but were instead funded by the state. Amtsnotare were only to be found in Baden-Württemberg.
- Nurnotar - this term was used to describe someone who practised only as a notary and thus did not undertake any representative tasks.
12.30 The activities of the notary were restricted to areas of voluntary non-contentious jurisdiction including some aspects of real estate law, commercial law and family law, while the powers of the Rechtsanwalt were more wide ranging. Rechtsanwälte had the right to act as counsel, defender, legal counsel, representative or attorney in any legal matter and also carried out some of the notary's functions.
12.31 It was also quite significant that the German court system operated on the basis of an inquisitorial rather than adversarial system as far as criminal, administrative and non-contentious proceedings were concerned, and thus the role of legal professionals within that system might well be subject to different considerations. However, civil proceedings in general followed the 'principle of party presentation' and were therefore adversarial. An exception was made for matrimonial, family law and child custody cases, where inquisitorial procedure applied.
12.32 Each Rechtsanwalt had to be admitted to/authorised by a specific court within the ordinary jurisdiction and might also apply to be admitted to the court in whose district the Magistrate's court in which he/she initially registered is located. Formerly, the Rechtsanwalt could only conduct his/her business in that restricted geographical area, but since 2000 the Rechtsanwalt could conduct business in any county/magistrates court provided that he or she was registered in one. The same did not apply to the higher regional courts however, where registration required five years practice at the Bar. At the Federal Supreme Court ( Bundesgerichtshof) a special class of elected Anwälte, with a considerable amount of experience, operated. These Rechtsanwälte beim Bundesgerichstshof were nominated by the Federal and the regional Bars and appointed by an election committee of the Bundesgerichtshof.
12.33 The German legal system recognised a number of professions that might give legal advice without the need to seek special dispensation to do so. Those included patent lawyers, notaries, publicly appointed tax consultants, certified public accountants, public authority representatives, liquidators and cooperative auditors. These professions were selected on the basis of their similar responsibilities with regard to client confidentiality, thus enabling the Rechtsanwalt to ensure that his/her own client's information could be properly protected within the multi-disciplinary partnership as a whole. The German 'Kammer', which held a position comparable to that of the Chartered Institute of Patent Agents was currently pressing - along with that organisation - for rights of audience to be granted to patent agents in relation to European patent issues. Some competition was provided in the legal services market in economic matters by 'economic jurists' (Diplomwirtschaftsjuristen) who held a diploma in economic law only. The Diploma qualification was offered by technical colleges and differed completely from the education of lawyers. The Diplomwirtschaftsjurist did not however have rights of audience in the courts. Besides these Diplomas, German Universities had started to offer a post graduate qualification of a Masters of Law following university after the completion of the first state examination. Those with a Masters did not enjoy rights of audience in the courts. The education of lawyers in Germany included 4 years university study, completion of state examinations and two years vocational training (that concluded with the second state examination).
12.34 The German legal system did feature specialist courts for issues relating to intellectual property matters such as complaints against decision of the Patent or Trademark offices. In these courts patent agents themselves had a right of audience. These agents also had a right of audience before the Federal Supreme Court where they were dealing with appeals against the orders of the patent court. Indeed, those patent courts featured patent experts as judges who, while they were not considered lay judges, were not legally qualified.
12.35 On the Paterson 208 sliding scale of regulation, the Scandinavian countries were considered the least regulated - though Ireland too was scored as low on overall regulation. For example, restrictions on rights of audience were limited in Sweden to the extent that there was no requirement for a party to a case to engage legal representation under Swedish law nor was there a requirement that legal counsel had undergone any formal legal training. That was true regardless of which court of instance was involved in the proceedings in question. The court, however, might turn down counsel considered unfit for the task.
12.36 There was no such thing as the unauthorised practice of law in Sweden. It should be noted however that a Swedish legal practitioner holding him or herself out to be an advocate or attorney at law, had to be a member of the Swedish Bar Association and thus required to have passed the LL.M and to have practised law for a period of at least five years. The same criteria apply to public defenders in Sweden who also had to be members of the Swedish Bar Association.
12.37 Finland was often described as one of the world's most open markets for legal services and the Finnish legal profession was, similarly to that in Sweden, subject to very limited regulation. Legal education in Finland, however, was extensive and usually required up to seven years of study which could be undertaken at only three of the country's twenty one universities. No certificate was required for an individual to practise law, however, unless that person wished to call themselves 'advocate'.
12.38 In Denmark, legal services were not highly regulated. There was no monopoly on legal advice for lawyers. The one exclusive right of Danish lawyers was representation before the court. However, parties were free (in most types of cases) to represent themselves. The profession of 'advokat' was unified. All advocates had to hold a university law degree which were provided by two universities in Denmark.
Other European jurisdictions
12.39 In 1998 the Council of the Bars and Law Societies of the European Union undertook an exercise to examine areas of work reserved to lawyers. Although now a little dated (for example in the Scottish example solicitor advocates are now operating), this is presented at the end of the chapter. This work covered a larger number of jurisdictions than was possible during the current exercise and it clearly illustrates the variation across the European area.
12.40 While the Australian legal tradition was in general heavily based on that of the United Kingdom, each of its territories formed a separate jurisdiction and each thus employed a slightly different approach to the regulation of the legal profession. The combined title of solicitor-barrister was in use in all of Australia except New South Wales ( NSW) and Queensland.
12.41 Lawyers in NSW were required to obtain a practising certificate from either the Bar Association (which would allow them to practise as a barrister) or from the Law Society Council in order to practise as a solicitor. An individual practitioner could not hold certificates issued by both bodies. Barristers were specifically prohibited from conducting the work of solicitors while solicitors might appear as advocates in court but did not wear wigs and could not identify themselves as barristers.
12.42 Restrictive practices also applied at the Bar where barristers could not appear in court without having been instructed by a solicitor. They were also prevented from forming partnerships with other barristers in much the same way as applied to barristers and advocates in the United Kingdom. The National Competition Policy Review of the Legal Profession Act 1993 (conducted by the Law Reform Commission of New South Wales) concluded that certain services could and should be extended to non-legal professionals but the responsibility for advocacy should be expressly reserved to the legally qualified.
12.43 In Victoria too, the profession was divided into solicitors and barristers though some practised as 'solicitor barristers' as outlined above. The Legal Practice Act 1996 required practitioners to join a registered professional association in order to be issued with practising certificates. In spite of the erosion of the division between the two branches of the profession there remained a separate group of lawyers who practised as barristers only and thus formed the independent Bar in the state or territory in question (that was true of all Australian states and the two mainland territories). Solicitors and barristers might act in the same circumstances as those in New South Wales although most appearance work in Victoria was conducted by barristers in spite of the fact that other legal professionals also had rights of audience. Growth in the profession of barristers in Victoria was due largely to the fact that they had become highly specialised in some areas. Individuals now also had the ability to access the Victorian Bar directly without having to initiate contact through a solicitor.
12.44 The South Australian model featured a profession that was combined. All new entrants to the profession were admitted as both solicitors and barristers and were entitled to style themselves as one or other according to their own commercial requirements or preferences. South Australia was also considering opening up some aspects of the profession to competition from non-legal professionals.
12.45 In Tasmania a 'limited right of audience' was available to an individual who had been articled by a solicitor under the Legal Profession Act 1993. These 'articled clerks' did not in all cases need to have law degrees (they might be law students for example) but the entitlements arising from that status might be revoked by the court at any time if it was of the opinion that the appropriate standards of conduct were not being observed by an individual articled clerk. Tasmania had also revoked the reservation of conveyancing work to members of the legal profession.
12.46 The Northern Territory still subscribed to the view that representation in court should be reserved to the legal profession only, though accepted that that need not only be provided by barristers as opposed to other legal professionals.
12.47 Most practitioners were now admitted to the profession as both solicitors and barristers. Some practitioners however did elect to act as 'barristers sole' and thus limited their activity to representation in the courts. The New Zealand legal profession was not subject to the same 'tradition' imposed restriction as some other legal systems and so the two branches of the profession operated harmoniously in an open market.
12.48 The Lawyers and Conveyancers Bill then being considered by the House of Representatives would end the legal profession's monopoly over conveyancing matters but upheld the reservation of advocacy to legal practitioners. That was subject to existing statutory exceptions, and to specific exceptions made by the court for 'McKenzie friends' as described above in the context of England and Wales. Lay representatives were common in some specialist tribunals in New Zealand in areas such as employment, some licensing issues and proceedings under the Children, Young Persons and their Families Act 1989.
12.49 The Canadian legal profession was regulated by the Competition Act 1985. In Canada, the term 'lawyer' was used more frequently than either solicitor or barrister to describe Canadian legal professionals. It was a 'catch all' term for the roles of both solicitor and barrister as Canadian lawyers in all provinces except Quebec could provide any kind of legal service including representation at all levels.
12.50 The Canadian legal profession was experiencing the movement of some of its traditional tasks from legally qualified professionals to the paralegal profession, a trend that was likely to become more pronounced in future. As yet there were no firm plans for regulation and licensing of the paralegal profession, though questions were being raised about the manner in which that profession operated and the case for regulation. While there existed a role for the paralegal/legal assistant within the Canadian legal system, there was no lawyer/client confidentiality or privilege between a client and a paralegal/legal assistant.
12.51 A task force was established in Ontario to deliberate on the work of paralegals and 'legal assistants'. The task force considered whether or not the paralegal profession should be subject to regulation on a similar basis to that applied to the legal profession. The task force was mandated to undertake that work in response to complaints about the manner in which some paralegals had conducted work previously. Such work included settlement of personal injury claims and other court proceedings. The task force also considered whether or not paralegals could provide a comparable and cost effective service that would deliver competition with the legal profession, but its report was inconclusive on that issue.
12.52 The purpose of proposals to increase regulation of paralegals would be to ensure that the same level of protection was afforded to members of the public who received services from paralegals or legal assistants as that which legal practitioners provided for their clients. Reform of the paralegal profession would be required in tandem with such changes. Paralegals were currently entitled to act on behalf of clients in small claims proceedings and in certain tribunals.
12.53 There appeared to have been an increase in self represented litigants in Nova Scotia Courts which studies conducted in that jurisdiction suggested to be an almost universal trend resulting from the high costs involved in engaging a lawyer.
12.54 In British Columbia the Court Agent Act allowed provincial voters to act as representatives in court in some very specific circumstances but generally a lawyer had to be engaged where the litigant did not wish to represent themselves.
12.55 Finally, as a result of its French roots, the Quebec legal profession featured notaries as well as lawyers. These notaries would usually undertake contract work relating particularly to real estate transactions and might only appear in court on non-contentious matters.
12.56 This expression arose from the English case of McKenzie v. McKenzie 1970 3 W.L.R. 472. The term described individuals who were non-lawyers but who chose to assist the litigant in court. In most cases they would be friends or perhaps neighbours of the litigant and in previous cases 'McKenzie friends' had been drawn from advice agencies such as Citizens Advice Bureaux. Though in most cases such representatives would be granted the ability to assist, there was still a wide discretionary power on the part of the court to refuse to acknowledge such a 'friend' of the litigant and there had been no substantial increase in their number since the commencement of the Courts and Legal Services Act 1990. It was significant to note however that the failure of the litigant to attend proceedings would prevent the friend from being granted rights of audience. It should also be noted that while the individual would have the ability to quietly advise the litigant, they would only be entitled to rights of audience where the court specifically allowed it or in small claims proceedings. McKenzie friends should be distinguished from amici curiae or friends of the court.
12.57 An amicus curiae brief could be submitted to the court in cases in which it was thought that the outcome might be affected by the interest shown by the party submitting the brief. Though the court might call upon an amicus curiae to give assistance in the course of proceedings, usually in the interests of the litigant, the 'friend of the court' did not have a right of audience.
12.58 There was variation in restrictions on rights of audience across Europe and internationally. With the exception of Sweden and Finland all of the jurisdictions covered by this exercise had experienced change in the structure of their legal professions in recent years, most in the late eighties and early nineties. Overall there had been a general extension of rights of audience in the jurisdictions examined.
12.59 There were some marked contrasts within Europe. In particular between Austria and Germany and their counterparts in Scandinavia. The UK (including Scotland) lay in the middle of the regulatory continuum on rights of audience.
12.60 The Group recognised that any extension of rights of audience would require safeguards to be in place to protect the interests of clients so that clients could be confident they were represented by a fully trained member of a well regulated professional or other body and that public protections such as professional indemnity insurance and a responsive complaints system were in place. From the perspective of the efficient discharge of court business, it was equally important that members were trained to be fully conversant with the procedure of the courts in which they intended to appear so that the work of the courts was not unduly impeded.
12.61 Subject to these considerations, the Group concluded that the commencement of sections 25 to 29 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990 would serve to increase choice and competition in relation to representation in court; and recommended to Scottish Ministers that it would be in the interests of the users of legal services for the provisions to be brought into force.
Table 1 : Comparison of rights of audience across key jurisdictions
Representation before courts
Representation before administrative agencies
Solicitor / Advocate
Barrister / Solicitor
Advocate and lawyer
England and Wales
Solicitor and Barrister
Solicitor / Barrister