Thomson Review: Rights of Audience in the Supreme Courts in Scotland

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CHAPTER 6 RIGHTS OF AUDIENCE (SOLICITORS)

Background to the solicitors' profession and its regulation

1. By the sixteenth century in Scotland, groups of men had begun to organise around and develop expertise in pleading before the courts. Over time they formed into associations and through those associations asserted a monopoly over rights of audience. In respect of the Court of Session that monopoly came to be enjoyed by the members of the Faculty. Analogous local associations developed around the various local courts.

2. The Procurators (Scotland) Act 1865 made provision for the local associations to become incorporated societies and for the establishment of formal requirements for entry into the profession. But where legislators may have perceived a singular profession of procurators, the local incorporated societies fiercely preserved their autonomy and special privileges. In recognition of that the Act itself provided for the monopoly on the rights of audience which the members of each local society enjoyed in respect of their local court to continue. Those local monopolies over the rights of audience ended eight years later 18, but the local societies' commitment to their continued independence did not.

3. It was not until the twentieth century that the concept of a unified solicitors' profession gained currency. The Solicitors (Scotland) Act 1933 paved the way towards a more recognisable landscape (it was the first time the word "solicitor" was used in statute to encompass all members of that branch of the profession in Scotland). The Act established a General Council of Solicitors in Scotland charged with, amongst other things, the regulation of solicitors' education and training and bringing discipline and correction cases against solicitors. It also established an Independent Discipline Committee. The efficacy of the General Council as a regulatory body seems to have been questionable. Structurally it was essentially confederal, with its membership drawn from the local societies. Moreover, it seems to have suffered from a chronic lack of resources. During the course of the 1933 Act's successor's passage through the House of Lords, a former Lord President (Lord Normand) referred to the problem of the General Council having to drop disciplinary cases because it had ran out of funds 19.

4. These deficiencies of the General Council (which were all the more evident following the establishment of a Law Society for England and Wales) formed the backdrop against which the Legal Aid and Solicitors (Scotland) Act 1949 was enacted. It was under the auspices of that Act that the Society was first established along with the Solicitors' Discipline Tribunal. It is notable from the parliamentary debate in relation to the Bill for the 1949 Act that, at least amongst parliamentarians, concern was principally about ensuring the profession's autonomy. There was an anxiety that any strong, centralised regulation of the profession by the State would diminish its independence and could thereby threaten the proper separation of powers. To allay those concerns the Bill was assiduous in ensuring that the membership of the Society (that is the enrolled solicitors of Scotland) was to retain control over it. Accordingly the Bill made no attempt to stipulate such details as the constitution of the embryonic Society, but rather insisted that no constitution be adopted until it had been approved by the Society's membership.

5. These early debates reveal a conflict between two conceptual models of regulation which continue to figure prominently in current discourses about the legal profession's regulation. On one hand autonomous self-regulation is asserted to be essential, not least to ensuring that solicitors are able to perform their duties with proper independence from the State. On the other, it is contended that for regulation to be meaningful the regulator must be independent from those whom it regulates. The inherent tension is evident from the terms of the statutory provision which forms the Society's current legal basis. Section 1(2) of the Solicitors Act provides that the Society's objects include the promotion of "the solicitors' profession in Scotland" and "the interests of the public in relation to that profession." To ensure that the Society was properly discharging the latter function the Solicitors Act provided for independent supervision in the form of the lay observer. A decade later the Law Reform Act abolished that office and replaced it with the Scottish Legal Services Ombudsman.

6. During the first session of the Scottish Parliament, the Justice 1 Committee undertook a review into the regulation of the Scottish legal profession. 20 The Committee's principal concern was with the handling of complaints about legal professionals. Its report explores the tension the Committee perceived between those who argued in favour of retaining a high degree of self-regulation by the profession and those who sought to move toward a system of completely independent regulation. The Committee's preferred approach lay between those two extremes. One of the Committee's core proposals was that the contemporary complaints handling system be streamlined under the auspices of a new Complaints Commission. The Scottish Government took that proposal forward in the Legal Profession and Legal Aid Act (the current complaints handling processes are discussed in further detail in Chapter 9).

Admission of solicitors and standard setting

7. The Society is able to control who can practise as a solicitor in Scotland because, by virtue of sections 4 and 25 of the Solicitors Act, entitlement to do so flows from being-

a.) admitted as a solicitor;

b.) one's name appearing on the roll; and

c.) (subject to one exception) holding a practising certificate.

The Society plays a significant role in relation to all three of those requirements.

Admission

8. In principle, it is the Court of Session which admits new solicitors to the profession. The mechanics of the admissions process are however left to the Society. To be admitted as a solicitor in Scotland, the applicant must satisfy the Council of the Society that he has complied with the training regulations (made under section 5 of the Solicitors Act) and that he is a fit and proper person to be a solicitor. The applicant must also pay the prescribed fee. 21 The Council of the Society can make regulations under section 5 only with the concurrence of the Lord President, and the amount of the fee must be agreed with the Lord President.

9. The Solicitors' Admission Regulations provide for more than one route to qualify. The vast majority of intrant solicitors obtain an LLB in Scots law, 22 complete the Diploma in legal practice and then undertake a two year traineeship. The alternative is to undertake a three year pre-Diploma training contract and then sit the Society's professional examinations. Having passed those examinations the prospective intrant can go on to complete the Diploma and the post-Diploma training contract in the same way as an intrant who had followed the LLB route. It should be noted that whilst the period of the post-Diploma traineeship under either of these routes is two years, an intrant may be admitted after his first year (his practising certificate will however be qualified until he has completed the full term of the traineeship). 23

10. The training structures have been the subject of active consideration by the Society since November 2006, when it launched its consultation 'Shaping the Future of Legal Education'. 24 The Society's proposals, developed in light of that consultation, were then subjected to further comment in 'The Way Forward' published in 2008. At its 2009 Annual General Meeting, the Society endorsed the proposals set out in 'The Way Forward' and authorised that the project move to phase 2: implementation. Implementing the proposals will, the Society claims, produce a "monumental change to the way in which solicitors are educated, trained and maintain their [Continuing Professional Development] in Scotland." 25

11. The consultation focussed solely on the training of solicitors. The training and testing of solicitor advocates did not fall within the remit of the Society's Training and Education Committee; although the consultation paper states the Committee's willingness to look at the arrangements for solicitor advocates in the future.

12. Unsurprisingly different admission rules apply for those who are already legal professionals. A member of the Faculty seeking admission as a solicitor need not work under a pre-Diploma training contract, nor sit the Society's professional exams, nor complete the Diploma. They do however need to undertake what is ostensibly a 6 month traineeship. 26 An advocate who becomes a solicitor must cease to be an advocate.

13. Similarly barristers from other parts of the United Kingdom are exempt from the ordinary requirements for admission but, in addition to the six month traineeship (which may be extended in duration if the Council sees fit) they must also provide evidence to the Council that they are a fit and proper person to be admitted as a solicitor in Scotland, that they have practised at their home bar for at least five years and, more onerously, they must pass an intra- UK transfer test. 27 Solicitors from other UK jurisdictions are not, by contrast, required to do the 6 month traineeship but need only produce evidence that they are a fit and proper person to be admitted and pass the intra- UK transfer test. 28

14. The Solicitors' Admission Regulations make specific regulations for Colonial solicitors (within the meaning of the Colonial Solicitors Act 1900), from elsewhere (other than EU Member States). In respect of EU lawyers, Council Directive 89/48/EEC requires that their professional qualifications be given due recognition in order to allow them to practise in Scotland more readily. This is provided for by the EC Qualified Lawyers Transfer (Scotland) Regulations 1994. The Society's recent review of the routes into the profession did not address the position of those who are already qualified lawyers in other jurisdictions. The Society's Training and Education Committee has however committed itself to further consideration of the issue to ensure consistency with its approach for non-lawyer intrants. 29

The roll of solicitors

15. An order admitting a person as a solicitor also includes a direction to the Society's Council to enter that person's name on the roll of solicitors. 30 Once on the roll a solicitor's name remains on it unless he asks that it be removed 31 (for instance because he intends to become an advocate) or he is struck off. 32

16. The ease with which one may be restored to the roll depends upon the circumstances in which one was removed from it. A person who asked to have his name removed from the roll can have it restored relatively easily on an application to the Society's Council (although the Council may conduct such inquiry as it sees fit). 33 For those struck off the roll, being restored to it is apt to be more difficult. Having been struck off a person can only be restored to the roll if, on application to the Solicitor's Discipline Tribunal, it "thinks proper" 34 or, if his name has been removed by order of the Court of Session, it can be restored to the roll only by a further order of that court. 35

Practising certificates

17. It is generally a prerequisite to practising as a solicitor in Scotland to hold a practising certificate. To practise without one for gain is, even for a solicitor whose name appears on the roll, a criminal offence. 36

18. Practising certificates expire each year on 31st October and must therefore be annually renewed by those intending to continue in practice. Generally a certificate will be granted on request to any solicitor provided his name appears on the roll and he pays the requisite fee (currently £565). 37 Only in certain prescribed circumstances can the Council of the Society exercise discretion to refuse or qualify a certificate. 38 Broadly those circumstances are where the applicant has not held a practising certificate for at least a year or some form of disciplinary sanction has been imposed upon him or disciplinary proceedings are pending.

19. The strict requirement to have a valid practising certificate admits only one exception. It is not required by solicitors (their assistants and employees) who are authorised by law to act as solicitor to a public department without admission. 39

Standard setting

20. In addition to setting the admission criteria for prospective solicitors, the Society also has the function of setting the standards and practice rules which qualified solicitors are expected to adhere to. The rules which regulate professional practice, conduct, discipline and probity in accounting are all prescribed by the Council of the Society. The Society's standard setting powers are conferred by sections 34 and 35 of the Solicitors Act. Before making any rules under either section, the Council of the Society must send a draft of the proposed amendment to each member of the Society, submit the draft rules to a meeting of the Society and take account of any resolution passed at that meeting. Moreover no change to the rules will have effect unless and until the Lord President, having taken account of any objections he considers relevant, approves the changes. 40 The principal rules governing the conduct of solicitors are presently embodied in the Solicitors' Practice Rules.