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Law Society Must Face Up To Its Responsibilities

Thursday, 12 March 2009

The Dean of the Faculty of Advocates has called upon the Law Society of Scotland to face up to its responsibility for regulating solicitor advocates. These are solicitors with rights of audience in the Supreme Court and High Court in Scotland.

The Lord Justice Clerk, Lord Gill, has expressed concern about the system of Solicitor advocates and their regulation. Lord Gill made his comments in a recent murder appeal in which he criticised practices which appear to have become widespread among solicitor advocates. Lord Gill noted a failure by some of these solicitors to advise clients of the option of being represented by an advocate when that might be in the clients' best interests; the disregard by some of these solicitors of Law Society rules requiring them to inform consumers of such options; such solicitors doing advocacy work which was beyond their competence and a lack of awareness of professional duties.

Lord Gill highlighted the practices of solicitor advocates accepting instructions from their own law firms without advising clients of the availability of counsel and of "self-certifying" themselves as "senior" or leader in serious criminal cases.

"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 matter for concern," said the Lord Justice Clerk.

Lord Gill added: "The concept of seniority is in my view conducive to the interests of justice. It does not apply in the case of solicitor advocates ... in practice there is no concept of seniority other than for the purpose of charging fees."

Instead of responding to these failures in conduct and regulation of its members the Law Society of Scotland has attempted to pass the matter on to the Scottish Government. Earlier this week the Law Society announced that it was asking the Justice Secretary to set up an independent review to look at all aspects of rights of audience in Scotland's Supreme Courts and to report in about 2010.

In the view of the Dean of Faculty, Richard Keen QC, the Law Society's response represents an abdication of its statutory responsibility for regulating solicitor advocates.

Richard Keen said: "Lord Gill's opinion in the case of Woodside highlighted failures concerned with the operation of the way in which solicitor advocates are regulated.

"The Faculty had hoped for a constructive response from the Law Society of Scotland which is the regulatory authority for solicitor advocates. It did not expect the Law Society to abdicate its responsibility as regulator in the face of the Lord Justice Clerk's criticisms.

"This is not a matter that should be put off until 2010 or the next century. It is something that should be addressed now in the interests of justice and of the consumers of legal services.

"It is not appropriate for the Law Society to kick this into the long grass by asking for an independent inquiry or investigation. If the Law Society is to prove itself the regulator it claims to be it should demonstrate that by regulating.

"There is no call and none certainly from the Lord Justice Clerk, for an investigation into rights of audience in general. Nor is there evidence of any systemic failure in the operation of the courts and rights of audience. What there obviously has been is a failure of regulation in respect of solicitor advocates and the Faculty hopes that this will be dealt with sooner rather than later.

"If the Law Society feels that as regulator it is not able to investigate and deal with that matter no doubt another way can be found to do this on their behalf - although why the public purse should have to incur expense on something which the Law Society is already paid to do is not immediately obvious," said Mr Keen.