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Chapter 7 Restriction on direct access to advocates
Restriction
7. The Faculty's rules provided that an advocate might appear in Scottish legal proceedings only on the instructions of a Scottish solicitor 72. The Group reviewed the issue of whether the restriction on direct access to advocates was in the public interest.
Background
7.1 Advocates did not provide legal services directly to lay clients but to other professionals (particularly solicitors) who provided services directly to lay clients. The direct access professional decided whether or not it was necessary to instruct counsel, and advised the lay client on the selection of counsel. It was the solicitor who was responsible, on behalf of his client, for the conduct of litigation in the Scottish courts. The solicitor acted as the agent of the client in taking any necessary procedural steps in relation to the conduct of litigation, in communicating with the agents of the other parties and in instructing counsel as and when required. A number of exceptions had been recognised to the rule that an advocate might appear in Scottish legal proceedings only on the instructions of a Scottish solicitor. A Dean's Ruling of 1970 permitted advocates to accept instructions from:
- The chief executive of a local authority;
- A patent or Parliamentary agent; and
- A lawyer furth of Scotland in matters in which no litigation in Scotland is contemplated or in progress.
7.2 Since 1990 it had been permissible for an advocate to accept direct instructions from a member (or certain classes of member) of a recognised professional body in relation to a matter which fell generally within the professional expertise of the instructing member. An advocate might accept instructions from a member of a professional body recognised by the Faculty of Advocates as entitled to instruct direct (of which there were currently 28 73). That right of direct access applied in relation to any matter of a kind which fell generally within the professional experience of the instructing professional.
7.3 An advocate might accept instructions from a member of one of the direct access groups to conduct proceedings before a public inquiry, tribunal or other forum before which the instructing person himself had a right of audience. Advocates were not however permitted to accept instructions which involved the conduct of court proceedings from a member of one of the direct access groups, but had always to be instructed by a solicitor to act in a court action. Where an advocate had been instructed by an appropriate professional to appear before a tribunal or inquiry, the administrative functions required for the conduct of that litigation would be performed by the instructing professional and not by the advocate.
Rationale for restriction
7.4 The Faculty's rules provided that a member of the public might not engage an advocate direct to handle a case, but had first to instruct a solicitor who would identify and instruct an advocate when required. That rule had the advantage for clients that, in deciding whether or not the services of an advocate were required, and if so, which advocate would best serve the client's requirements, the client would be advised by an experienced professional. Advocacy services were typically of great importance to clients. In criminal cases, the client's liberty might be at stake. In family cases the fate of children might be an issue. The financial consequences of winning or losing a particular litigation might be of great importance both to an individual litigant and to a business or commercial client.
7.5 Most clients used advocacy services very rarely and were accordingly in no position to select an advocate who would be appropriate to the matter in hand. Indeed, advocacy services were credence services in relation to which it was very difficult for a client to evaluate the effectiveness of the advocate, even after the event. The Faculty therefore believed that it was in the public and the consumer interest for the client to have an informed intermediary in the selection of an advocate for a particular case, as the instructing professional was in a better position than the client to assess the requirements for the particular case. The solicitor played an important "gatekeeper" role correcting the asymmetry of information which existed for most clients in relation to advocacy services.
7.6 The rule had the further advantage that advocates did not require to maintain an office and support staff or to handle clients' money, which was a cost saving to the advocate and therefore to the client. Through the Faculty and Faculty Services Limited advocates enjoyed economies of scale from the use of shared services and facilities.
7.7 The Faculty believed that a legal practitioner who wished to offer services directly to lay clients might do so as a solicitor and, if he wished to combine advocacy in the Supreme Courts with the provision of services directly to lay clients, might do so if he was a solicitor advocate. In the Faculty's view, consideration of that rule needed to take account of the particular characteristics of an independent referral bar and the benefits which the existence of an independent referral bar provided for the administration of justice in Scotland as a whole. It was also necessary to recognise the different relationships which the solicitor and the advocate had with the lay client. The provision of services directly to lay clients had regulatory implications ( e.g. the need for regulation in relation to the handling of clients' money) which did not apply to advocates who acted solely on a referral basis.
7.8 The Faculty argued that there was accordingly a logic in requiring lawyers who wished to provide services directly to members of the public to do so as members of the Law Society of Scotland, which had the regulatory apparatus appropriate to such work and, conversely, in requiring members of Faculty to operate on a referral basis. If advocates were to be permitted to provide services directly to lay members of the public, the Faculty would require to replicate the regulatory arrangements which the Law Society of Scotland had in place for solicitors. To do so would impose both an additional burden of regulation and consequent costs on the Faculty and on practitioners (which would be unnecessary for those who practised on a referral basis).
7.9 If advocates were to be permitted to provide services on a direct access basis, the Faculty believed that the "cab rank rule" would require to be modified to allow an advocate to decline to accept direct instructions.
7.10 The Faculty observed that advocates had an unusual legal status. They had no contract with either the lay client or the instructing professional. They could not, in law, sue for their fees 74 (except, perhaps, where the solicitor had been put in funds by the client for payment of counsel's fees). Advocates accordingly relied for payment of their fees on the professional responsibility of the instructing professional. Any change to the rule about direct access would require the rule of law which prohibited advocates from suing for their fees to be amended.
7.11 A legal practitioner who wished to provide advocacy services in the Supreme Courts directly to lay clients might do so as a solicitor advocate. The provision of services directly to lay clients had regulatory implications ( e.g. the need for regulation in relation to the handling of clients' money) which did not apply to advocates, who acted solely on a referral basis. In the Faculty's view there was a logic to requiring practitioners who wished to provide services directly to lay clients to be members of the Law Society of Scotland, which provided a regulatory framework apt to such services. It was hard to see the merit in requiring the Faculty to duplicate such a regulatory framework (at additional cost) when the option of practising as a solicitor advocate was available to practitioners who wished to offer services directly to the lay public.
Competition issues
7.12 The restriction on direct access was inefficient where a client was fully capable of instructing counsel without using a solicitor. For such clients the requirement to use a solicitor was simply an additional cost, requiring them to engage the services of two lawyers rather than one. It could be argued that the professional rules of the Faculty should not impose restrictive practices which went beyond the requirements of the law governing the legal profession and the administration of justice; and that each advocate should be free to choose whether to take instructions directly from a lay client or whether to require instructions only through another professional.
7.13 The OFT agreed with the points made about the inefficiency of the restriction on direct access. It viewed the concern about the costs of handling clients' money as essentially a practical problem, rather than one of principle and did not believe that it should prevent the Faculty from allowing its members to conduct cases on a direct access basis (if necessary, subject to a continuing prohibition on handling clients' money). That would give some advocates, in some areas of practice, an important freedom where for example the advocate considered it unnecessary to take fees on account. Where it was necessary to handle clients' money, practical solutions might then be explored, adopting a cost/benefit analysis to determine the most effective way of addressing the question.
7.14 With regard to arguments about the relative overhead costs of solicitors and advocates, the OFT emphasised that it was important to bear in mind that the activities of each remained significantly different for the time being. It would therefore be wrong in the OFT's view to draw the conclusion that the difference in business structure was responsible for the difference in overheads. To the extent that one type of business structure was more efficient than another, it would in any case be favoured by the normal operation of the market. The OFT believed that it was unnecessary to have rules restricting business structure on cost grounds. Lifting the prohibition on partnership and on direct access would allow advocates the freedom to choose alternative structures and any efficiency benefits that these might bring.
7.15 The Scottish Consumer Council shared the OFT's view that the prohibition on direct access should be removed.
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