Faculty rejects solicitor advocate criticism and reiterates conflict of interest problem

The Faculty of Advocates has rejected recent criticisms of its position made by the Society of Solicitor Advocates (SSA).

In a supplementary submission to the Independent Review of the Regulation of Legal Services in Scotland, the Faculty addressed the main points made by the SSA in its own submission.

It described the SSA’s assertion that the Faculty’s original submission was “brimming with undisclosed self-interest” as “surprising”, stating that “of course any submission made by Faculty is made in the interests of Faculty, that is surely self-evident. Faculty’s submission is no more ‘brimming with undisclosed self-interest’ than is that of SSA itself.”

In its original submission, the Faculty illustrated the conflict of interest problem for solicitor advocates, defending it again in the latest submission.

It said that the SSA “does not, and cannot, quarrel with either the illustration or the conclusion that the situation illustrated creates ‘a clear and irresolvable conflict of interest’.”

The Faculty described the SSA’s suggestion that such a conflict is routine for all lawyers in Scotland and is “readily managed by obtaining informed consent and observing the relevant professional rules”, as being “with great respect, incomprehensible and baseless, insofar as it refers to Advocates”.

It added: “The notion of internal instruction is peculiar to the solicitor’s branch of the profession: counsel has no access to clients without instruction by solicitors. If, exceptionally, a Member of Faculty found himself in a conflict as a result of ‘internal instruction’ (although Faculty simply does not understand how that could ever happen, standing the fact that its members operate as independent sole practitioners) then Faculty’s Guide to Professional Conduct would require the Member of Faculty to decline instructions.”

The Faculty also called for the terms “lawyer”, “Advocate” and “counsel” to be given statutory protection, similar to that enjoyed by “solicitor” in order to protect the profession from unqualified people.

It also stated that “the terms ‘Advocate’ and ‘counsel’ ought, in particular, to be reserved for use by members of Faculty, in order to protect consumers from the risk of confusion as between Advocates (ie counsel, properly so called) and ‘solicitor advocates’.”

Read the full submission here