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Annex D: Letter from Society of Solicitor Advocates of 10 September 2004
The Society of Solicitor Advocates was invited to comment on the rule against mixed doubles. The Society's letter is below :
Dear Madam,
Working Group for Research into the Legal Services Market in Scotland.
Response by the Society of Solicitor Advocates in respect of "Mixed Doubles".
The Society of Solicitor Advocates ("The Society") welcomes the invitation dated 16th August 2004 from the Scottish Executive to contribute to the discussion on the above topic.
When Extended Rights of Audience - to use the formal term describing the ability of solicitors to appear in the supreme courts - came into existence in 1993, it was envisaged that the availability of representation by Solicitor Advocates would broaden the choice available to consumers of legal services in the Scottish legal services market place. There are now some 175 Solicitor Advocates able to provide clients with representation in the Supreme civil and criminal courts in Scotland. It is understood that, in England and Wales, there are in excess of 1,000 Solicitor Advocates.
The Society believes that consumers of legal services in Scotland are entitled to the widest possible choice of options as regards representation, on every occasion when it becomes necessary for individuals or corporations to assert or defend claims in the civil courts, or to defend allegations of criminal conduct in the criminal courts. The Society is concerned that the existence of the so-called "Mixed Doubles Rule" prevents the attainment of that objective. According to this rule, all members of the Faculty of Advocates are currently prohibited from appearing in court with a Solicitor Advocate where both represent the interests of the same client.
The "Mixed Doubles Rule" is in fact a reference to a Ruling issued to members of the Faculty of Advocates by the then Dean of Faculty shortly after the first Solicitor Advocates began to use their Extended Rights of Audience. The Ruling is understood to have arisen from a perceived lack of independence on the part of solicitors from their clients. The Society is not aware of there being any evidence, throughout the duration of the period during which Extended Rights of Audience have been sought and exercised, demonstrating that Solicitor Advocates are less 'independent' than members of Faculty in their dealings before the court.
The Society submits that one of the keys to the effectiveness of representation in any court, as well as being one of the commodities most valued by any consumer of legal services, is continuity of representation. With any case, but particularly in relation to matters of legal and/or factual complexity, the involvement of the same legal representative from the inception of procedure until its eventual conclusion brings a number of benefits. Outright knowledge of the complexities of law attending a particular claim or prosecution is of course very important. However, frequently a tactical advantage accrues because the consumer's legal representative has developed over time an intimate knowledge of the facts and procedure with a particular dispute or prosecution. In the case of Solicitor Advocates dealing with civil matters this is an especially important factor.
By their very nature, civil claims in the higher courts entail complex legal pleadings and a multiplicity of legal issues. Civil procedure is not yet, despite the best efforts of the Scottish Court Service, particularly swift. In the Court of Session, for example, most civil claims last for 18 months or more. A new fast-track procedure was introduced in April 2004 for personal injury claims, but there is a precedent which suggests that fast-track procedures become victims of their own success. Even in the Commercial Court, which was established in 1994 in response to the concerns of business that litigation procedures were too slow, the present best estimate is that procedures can often last in excess of one year. As a consequence, in the course of any litigation a considerable amount of accumulated knowledge arises. This knowledge comprises familiarity with the facts, the law, and the procedure that has arisen to date. In addition, an ongoing awareness is formed as to the strengths, weaknesses, or tactics, affecting the client's opponent. The climax of this accumulated knowledge is the Proof (or the Trial in criminal terminology).
The relevance of the foregoing paragraph is that, according to the "Mixed Doubles" rule, a client may be deprived of the effective services of the Solicitor Advocate who has represented the client for a significant period, when those services would matter most. Simply put, the "Mixed Doubles" rule prevents a Solicitor Advocate from appearing side-by side with a member of Faculty, in court, at the final Proof or Trial where a decision has been taken to employ for example Senior Counsel at the Proof or Trial, usually due to the complexity, speciality, or high value involved in the case.
Additionally, the opinion of a member of Faculty (often though by no means exclusively the opinion of Senior Counsel) may be sought prior to or at the outset of litigation. Members of Faculty and Solicitor Advocates frequently work side by side throughout the entire pre-trial history of a case, and sometimes for significant periods before litigation itself. However, when the day in court materialises, the Solicitor Advocate cannot take his or her place at the bar of the court alongside the same member of Faculty as a representative, being instead relegated by the "Mixed Doubles Rule" to the row of seating behind the member of Faculty, in the same role as a solicitor not possessing Extended Rights of Audience. This is so notwithstanding the Solicitor Advocate may well have conducted all the preceding hearings, some of which may have been complicated or involved difficult issues of law, prior to the actual trial. In Commercial Court for example, a system of judicial conferencing and case management exists. Individual judges are allocated to each litigation and the many Solicitor Advocates practising in this forum typically will have appeared many times before the same judge as the case progresses.
The practical result of the "Mixed Doubles Rule" for the consumer of legal services - the client - who has hitherto employed a Solicitor Advocate to conduct a litigation is that he will require to engage Junior Counsel in substitution for the Solicitor Advocate to provide support services to Senior Counsel, where Senior Counsel is to lead at the at the Proof or Trial. The Society would acknowledge that on some occasions, Senior Counsel would not require a junior. This does not answer the criticism that no good reason exists why the Solicitor Advocate who has handled the case from day one may not appear at the bar to present the case to the presiding Judge, alongside Senior Counsel or indeed any member of Faculty.
A variation of the foregoing difficulty which will arise (albeit this is less common) where the Solicitor Advocate has dealt with the case throughout, but during final preparation feels it appropriate to seek the support of a junior member of Faculty at the eventual civil proof or criminal trial. Once again, the "Mixed Doubles Rule" deprives the client of the choice of engaging a junior member of Faculty to support the Solicitor Advocate. This presents the Solicitor Advocate with a difficult situation. Having arrived at the view that the assistance of a junior would be beneficial to the effective presentation of the client's case, and finding himself being unable in practice to source that support, the Solicitor Advocate may have to withdraw and pass the case to either another Solicitor Advocate - or a member of Faculty - very late in the day.
Accordingly, as a general proposition, the Society of Solicitor Advocates maintains that the continued existence of the "Mixed Doubles Rule" operates to distort and limit the choices for Scotland's consumers of legal services. If the rule were abolished there is no doubt in the mind of the Society that many clients would elect to have their Solicitor Advocate play a proactive role in preparation and presentation of evidence at proof or trial alongside a member of Faculty.
The current position is of course the same for 'Procedure Roll' hearings, which are complex legal presentations not involving evidence that can nevertheless result in (for example) the outright dismissal of a case. The same may be said of appearances in the appeal courts, i.e. the Inner House, House of Lords, or Judicial Committee of the Privy Council. On none of these very important occasions, applying the "Mixed Doubles Rule", may a Solicitor Advocate appear alongside counsel to present arguments to the court.
The inability of a Solicitor Advocate ultimately to appear in court as set out above can be difficult to explain to a client and ordinarily it will fall to the Solicitor Advocate to attempt that explanation. Looking at client management issues more broadly however, and mindful of the reasoning understood to have prompted the introduction of the "Mixed Doubles Rule", the Society would say this. In a situation where there are members of the two branches of the legal profession working together, it is obviously important that the relationship between them, and the relationship with the client is properly managed. However both the Solicitor Advocate, and the member of Faculty are subject to stringent obligations of confidence and independence, and that should not be compromised. Ultimately it is the interests of the client that will determine how the relationship is managed.
Some general, secondary, observations may now also be made. First, Solicitor Advocates in England and Wales do not, it is understood, have to operate under any such rule and the Society of Solicitor Advocates has been informed by its English counterpart that "Mixed Doubles" operate in the English higher courts without difficulty.
Second, the representation of litigants at proof or trial either in the civil or criminal courts is a trade best learned from participation as part of the presenting team. Watching experienced hands at work is not a substitute for active involvement in case preparation and hands-on presentation. Because Solicitor Advocates are precluded from appearing in court in the same case, with Senior Counsel, Solicitor Advocates are currently mere spectators at the final curtain, deprived of the opportunity to learn from experienced Seniors in a way that is available to members of the junior Bar.
Finally, it may be worthy of note that the membership of the Society of Solicitor Advocates includes three experienced solicitors who have also practised in New Zealand, a country in which there exists a "fused" legal profession where all solicitors enjoy rights of audience from the District Court right up to the level of the Judicial Committee of the Privy Council. Notwithstanding this, New Zealand operates a separate and highly successful Bar. Both limbs of the profession appear to thrive in this environment and clients appreciate the ability to have their solicitor appear in court at every stage of the case together with Junior or Senior Counsel. Indeed, such choices are made and implemented on a daily basis in that jurisdiction.
The Society feels strongly that the removal of the "Mixed Doubles Rule" is overdue. Its removal would extend the choice of representation for consumers of legal services. This was what was envisaged when Extended Rights of Audience were first sought. The Society trusts that this letter is a helpful contribution to the debate. It is also grateful for the suggestion of a meeting to discuss matters, and would be happy to participate further.
Yours sincerely
Paul R Motion
Secretary
Society of Solicitor Advocates
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