Solicitor advocates criticise Faculty over response to legal services review

A solicitor advocates group has criticised a Faculty of Advocates response to a review of legal services, saying it “demonstrates a fundamental misunderstanding of the relevant rules which apply to solicitors and the additional rules which apply to solicitor advocates”; that the Faculty’s proposal of a “radical overhaul” to the rights of audience regime is made on the basis of “apocryphal murmurs”; and that it ignores the very point of the reforms that gave rise to solicitor advocates.

In a response to the Independent Review of the Regulation of Legal Services, the Society of Solicitor Advocates added in reference to the Faculty’s submission that “In just a few short paragraphs, brimming with undisclosed self-interest, a suggestion is made in the Faculty response which would have a major effect in reducing client choice and, in effect, coming close to re-establishing the monopoly which preceded implementation of the 1990 Act, a monopoly held by the members of the Faculty of Advocates.”

On the issue of conflict of interest, the Society cited a hypothetical example used by the Faculty to illustrate how a solicitor advocate can have a “clear and irresolvable conflict of interest”.

In the Faculty’s example a solicitor instructed by a company in a large damages claim has the option of instructing a solicitor advocate colleague within his own law firm. If he instructs the latter, the entirety of the fees in litigating and representing the client in the Court of Session “enure to the benefit” of the law firm and the solicitor, resulting in the conflict of interest.

The Society’s response states: “Lawyers of all types, whether advocates, solicitors or solicitor advocates are frequently required to offer advice to clients where the client’s decision will have implications for the fees chargeable. That is not directly equivalent to a conflict of interest. If it were, no lawyer would be able to represent any client other than on a pro bono basis. The suggestion is absurd.”

It adds: “Professional rules apply which prevent the lawyer from succumbing to any temptation to offer advice which is not in the best interests of the client but is in the financial interests of the lawyer. There is no evidence that the relevant professional obligations are ignored. The client currently has a choice of representation which the Faculty are seeking in their response to remove on the basis of little more than anecdote and wishful thinking.”