Review of solicitor advocates to go ahead after criticisms from judiciary

The Scottish Government is to carry out a review of the conduct of solicitor advocates, after criticisms from senior members of the judiciary. No surprises for guessing that any review will be masterminded by the Law Society of Scotland (as usual ! – Ed)

The Scotsman reports :

Review to put work of solicitor advocates under the spotlight

Published Date: 30 May 2009
By Christopher Mackie

THE Scottish Government has announced it is to carry out a review after one of Scotland's most senior judges criticised the conduct of solicitor advocates appearing in courts.

During a recent murder appeal, Lord Gill expressed concern that some solicitor advocates appeared to be taking on work outwith their competency.

The Lord Justice Clerk's call was echoed by the Law Society of Scotland, and it sent a request to justice secretary Kenny MacAskill to instigate an independent check of the entire system of rights of audience in Scotland's higher courts.

Speaking at the Law Society AGM on Thursday, its outgoing president, Richard Henderson announced that the government had agreed to the request.

Alayne Swanson, the president of the Society of Solicitor Advocates, said: "The Society of Solicitor Advocates and the Law Society have supported the idea of a review from the outset. We are confident the review will examine robustly the professional practices of all those who appear before the higher courts."

A Scottish Government spokesman confirmed that the review would take place and added: "Officials will now discuss the details of the review with stakeholders and an announcement will be made when the remit has been agreed."

Solicitor Advocates criticised by Lord Gill claim the high ground ahead of Law Society EGM

The Society of Solicitor Advocates are claiming strong support for its approach to Lord Gill’s recent criticisms of the lack of regulation & standards maintained by some in the profession.

The claims come amid confidence building, and the odd bit of spin needed to generate publicity ahead of their Extraordinary General Meeting at the Law Society of Scotland's Drusheugh Gardens HQ, Edinburgh, on 22 April 2009.

It is fairly obvious Solicitor Advocates, along with the rest of the profession are being poorly regulated by the Law Society .. (perhaps a change of regulator is needed, which we’ve all known is the case for years – Ed)

The release from the Society of Solicitor Advocates :

Solicitor Advocates claim strong support in advance of EGM

The Society of Solicitor Advocates has claimed strong support for its principled approach in responding to the criticisms of the court in the recent case of Woodside.

Lord Gill, in the recent case of Woodside, has questioned the way in which all solicitor advocates operate, and has specifically questioned whether or not solicitors and solicitor advocates are able to act independently when advising their clients on who they should instruct for appearances in court.

The judges in the Woodside case all raised points of fundamental importance. The Society is committed to upholding the principles that all lawyers share. It seeks an open and frank debate as to how those principles apply in the modern world.

"We have had an excellent response to our call for an open debate, with strong support for our principled approach. A large number of solicitor advocates have already committed to attending the EGM on 22 April, and we expect to see a good attendance from solicitor advocates specialising in both civil and criminal law," said Alayne Swanson, President of the Society of Solicitor Advocates.

Not since the debates in the House of Lords in 1990, when the law allowing solicitor advocates was introduced, has there been such a direct criticism of the whole concept of solicitor advocates.

"The Society treats the criticisms with the utmost respect and seriousness, but rejects them in their entirety," said John Scott, a leading human rights lawyer, and Vice President of the Society of Solicitor Advocates. "While there may be criticisms of individual solicitor advocates in individual cases, there are mechanisms in place to deal with such complaints," he added.

The Society of Solicitor Advocates wishes to play a central part in the review of rights of audience before the higher courts – a review that both the Law Society of Scotland and the Society of Solicitor Advocates have welcomed. To that end it intends to seek the views of its members, with a view to publishing those views after the EGM.

Solicitor Advocates join Law Society’s call for rights of audience review

The Society of Solicitor Advocates, feeling ever so slightly put out by the recent remarks of Lord Gill, who seemed to indicate solicitor-advocates were badly regulated (probably are because its the Law Society again - Ed), have called for an Extraordinary General Meeting at the Law Society of Scotland.

Mrs Swanson, the President of the Society of Solicitor Advocates, has joined the Law Society’s call for the Scottish Government to institute a review of rights of audience in Scotland … (although the Law Society’s call for a review sounded more like a call for themselves to conduct the review – Ed)

The Society of Solicitor Advocates Release :

Solicitor Advocates call for open debate

The President of the Society of Solicitor Advocates has called for an open and frank discussion on the whole question of who should be entitled to practise before the highest courts in Scotland.

"All solicitor advocates are concerned to ensure that we deliver top quality service to our clients and want to ensure that commercial clients, private clients and those less fortunate have access to legal services. There is inevitably competition between us and advocates. However there is merit in seeking to identify the values that we share. Lawyers, of every type, should stand for honesty, integrity, independence of thought and a passion for the rule of law." said Alayne Swanson.

Lord Gill, in the recent case of Woodside, has questioned the way in which all solicitor advocates operate, and has specifically questioned whether or not solicitors and solicitor advocates are able to act independently when advising their clients on who they should instruct for appearances in court.

"The suggestion that solicitor advocates cannot act independently is one we flatly reject," said Mrs Swanson.

Like advocates, all solicitor advocates are bound by a code of conduct. The Code of Conduct for Solicitor Advocates states that a solicitor advocate shall not accept instructions as a solicitor advocate (as opposed to a solicitor) without satisfying himself that it is proper for him to accept them.

"If there is any suggestion that a solicitor advocate has breached the Code of Conduct then the appropriate course of action is to report him or her to the Law Society of Scotland. That solicitor advocate will then be disciplined appropriately," said John Scott, a leading human rights lawyer, and Vice President of the Society of Solicitor Advocates.

The Society of Solicitor Advocates has proposed an open debate on the question of rights of audience. The purpose of that debate would be to identify the principles and values shared by all lawyers, whether solicitor advocates or advocates. There is a great deal of common ground. All lawyers want to provide quality advice and service. Lawyers who break the rules should be identified and dealt with. There are however difficult questions to be answered: should there be a single body governing the conduct of all lawyers, regardless of how they obtained their rights of audience, for example?

The first small step in the process of discussion is an EGM of the Society of Solicitor Advocates on 22 April 2009 at 5.30pm. The meeting will be held at 26 Drumsheugh Gardens, Edinburgh, and will consider the Society’s response to the call for a review of the whole question of rights of audience before the higher courts. All solicitor advocates are invited to attend.

Faculty of Advocates & Law Society fall out over poor regulation of solicitor advocates

The Dean of the Faculty of Advocates, Richard Keen QC, has called on the Law Society to better regulate solicitor advocates … but given the fact the Law Society couldn’t regulate a dead horse, or even the bones of a dead horse .. that's going to be an impossible task …

The Law Society's reply was to ask for a review by the Justice Secretary Kenny MacAskill ..

The Herald reports :

Law Society attacked over review request

Law Society attacked over review request
BRIAN DONNELLY March 13 2009

Scotland's legal elite have clashed publicly over plans to review the regulation of solicitor advocates after concerns about the system were raised by the country's second most senior judge.

The Dean of the Faculty of Advocates has called on the Law Society of Scotland to face up to its responsibility for regulating solicitor advocates.

The society this week wrote to the Scottish Government requesting an independent review of the system. The faculty believes the society should carry out its own overhaul.

Solicitor advocates are lawyers qualified to represent clients as an advocate in higher courts in England, Wales and in Scotland, the Supreme Court and High Court.

The Lord Justice Clerk, Lord Gill, expressed concern during a recent murder case about the regulation of the group of solicitors.

He found that some solicitors were failing to advise their clients, contrary to Law Society rules, that they have the right to be represented by an advocate, which may be in their best interests.

He added that some solicitor advocates were doing advocacy work beyond their competence and they had a lack of awareness of their professional duties.

He revealed some of the senior solicitors had accepted instructions from their own law firms without advising clients of the availability of counsel, and were "self-certifying" themselves as the lead solicitor in serious criminal cases.

Lord Justice Clerk said: "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.

"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."

The society asked Justice Secretary Kenny MacAskill to report back next year on an independent review of all aspects of the rights of audience in the Supreme Courts.

Richard Keen, QC, the Dean of the Faculty, said the society had abdicated its responsibility for regulation after Lord Gill "highlighted failures".

He said: "The Faculty had hoped for a constructive response from the Law Society of Scotland, which is the regulatory authority for solicitor advocates.

"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.

"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."

Lorna Jack, chief executive of the Law Society of Scotland, said: "We believe that after almost 20 years it is time for an independent, comprehensive review of rights of audience in the higher courts."

She added that the society has a "rigorous" regulatory system to ensure the public interest is protected and standards maintained.

Law Society calls MacAskill for review of rights of audience in Scotland

The Law Society of Scotland as we all know, doesn’t do anything which is not in its own benefit … and

The governing body of the legal profession which doesn’t even allow members a vote in what goes on at its Edinburgh headquarters, has now decided after the recent argument between the Society & the Faculty of Advocates over the regulation of solicitor advocates, that the best way forward is to call for a review of rights of audience, with the intention the Society carries out the review itself …

The Law Society release :

LAW SOCIETY COMMENTS ON CALL FOR REVIEW OF RIGHTS OF AUDIENCE IN SCOTLAND’S HIGH COURTS

Lorna Jack, chief executive of the Law Society, said:

“Following on from Lord Justice Clerk, Lord Gill’s call for a review, the Lord President Lord Hamilton had written to Kenny MacAskill, Cabinet Secretary for Justice, to add his support for a review and we are in favour of this. We believe that after almost 20 years it is time for an independent, comprehensive review of rights of audience in the higher courts.

“Qualified solicitor advocates were given rights of audience in the High Courts and Court of Session in 1990, with the first appearing in the higher courts in 1993, giving clients an extended choice of well trained, experienced and regulated legal professionals to represent them.

“The Society is the regulatory body for all solicitors. This includes solicitor advocates. All of our members are expected to adhere to the professional standards set out in law and the Society’s rules. The Society has a rigorous regulatory system in place to ensure that the public interest is protected and high standards are maintained.

“Solicitor advocates must also comply with Supreme Court Rules. These rules were first approved by the Lord President Lord Hope in 1992 and then in 2002 by Lord Roger when they were reissued.

“To date the Society has never had to prosecute a member for professional misconduct arising from them acting as a solicitor advocate.

“Any complaints about solicitor advocates should be made to the Scottish Legal Complaints Commission (SLCC). The SLCC would deal with any service complaints while issues of conduct would be passed by them to the Society.

Lorna Jack added: “We would welcome a wide ranging review and the opportunity for ongoing discussion of the various issues with the government and the Faculty. We are currently in a time of significant change and this is an important issue for the future of the legal profession.”

ENDS

FOR FURTHER INFORMATION: Please contact Val McEwan or Suzy Powell at the Society on 0131 226 8884 or 0131 476 8115. valeriemcewan@lawscot.org.uk / suzypowell@lawscot.org.uk

Lord Justice Clerk Lord Gill calls for review of solicitor advocates amid regulation failure by Law Society of Scotland

Solicitor-advocates are in the news as Lord Gill, the Lord Justice Clerk calls for a review of the way the Law Society fails to regulate their work …

The Scotsman reports :

Senior judge calls for review of solicitor advocates system

Published Date: 19 February 2009
By EMILY PYKETT

A SENIOR judge in Scotland has called for a review of the system of solicitor advocates representing people in court.

The Lord Justice Clerk, Lord Gill, yesterday heard the appeal of a convicted killer over the conduct of his defence at his trial at the High Court in Glasgow in 1998.

Judges sitting at the Court of Criminal Appeal in Edinburgh rejected Alexander Woodside's appeal. However, Lord Gill branded a decision by one of Woodside's defence team to absent himself from the trial for a day to go to London as part of a Law Society delegation to lobby on legal aid fees as "a dereliction of his duty".

He said Woodside's appeal raised concerns over practice among solicitor advocates in the courts.

Lord Gill said: "This appeal has highlighted problems of rights of audience that seem not to be unique to this case. I think it would be opportune if there were to be a review of the working of the system overall." He added: "I fail to see how any practitioner could be justified in absenting himself from any part of a murder trial except in an emergency."

Woodside, 31, had been defended at his trial by solicitor advocates Gerry Brown and Michael McSherry.

David McGlashan, of Livingstone Brown, instructed Mr Brown, a senior partner with the firm, with Mr McSherry there to assist him.

Lord Gill said he did not believe evidence from Mr McGlashan in which he stated he discussed with Woodside the option of being defended by counsel.

He added: "The reality is that Mr Brown decided at the outset that he would defend the appellant, with Mr McGlashan in the role of his instructing solicitor. No other option was put to the appellant."

The judge said the appeal highlighted a further problem arising from a solicitor advocate being able to accept instructions from his own firm.

Lord Gill also said the current rules "provide no safeguard to protect the accused in such a case being defended by an inexperienced solicitor advocate whose reach exceeds his grasp".

However, the Lord Justice Clerk said this did not amount to a miscarriage of justice.

Lord McCluskey, a former High Court judge, was one of those who argued against the plans for a system of solicitor advocates almost 20 years ago.

Last night he told The Scotsman: "I have helped with the training of people and I am reasonably sure the solicitor advocates who act on behalf of people in courts are competent.

"The system has endured for 20 years; it has structural weaknesses – the principal of which is advocates are under jurisdiction of the dean – but there is no equivalent governing the general behaviour of solicitor advocates.

"But on the whole, I would have said that they have done a perfectly competent job."

However, after the appeal court ruling, Richard Keen, QC, the dean of the Faculty of Advocates, said: "I welcome the idea that the problems outlined by the Lord Justice Clerk should be the subject of a review. The particular problem of solicitors not clearly advising clients as to the availability of counsel is a long-standing one and suggestions that they should not have to do so are extremely worrying."

The right to appear in the High Court was extended to solicitors under 1990 law reform legislation, where previously the work was only carried out by advocates from the Scottish Bar.

Solicitor Advocate upset over access to justice claims, attacks consumers & clients over free market proposals

Trouble & strife in the legal profession again over the proposals to open up the legal services market, as Solicitor Advocate Frank Maguire launches a hostile attack against the public, the OFT, and consumer organisations over calls for Scots to have the right of free choice of their legal representatives.

Writing in the current issue of "The Firm" magazine, as reported by the Herald newspaper, Mr Maguire claims that legal services should not be governed by consumer law, despite the obvious fact the public fund the legal profession through a fee based service for work done.

Perhaps Mr Maguire wants the legal profession to become a free service ?

In an almost laughable quote from the article, Mr Maguire refers to a string of disasters, scandals & accidents all worthy of legal representation - all of which have or will take years to settle in the courts and claims the right of justice is comparable to that of education & health.

However, access to education and health are not at the discretion of those respective professions, or Government, unlike legal services, access to which is controlled by the legal profession itself.

"Try telling families of the Stockline disaster, the recent tugboat tragedy on the Clyde, the husband of the family wiped out in a car accident from diesel spillage or someone dying from an industrial disease or infected with blood products that they are consuming justice.

"They are consuming nothing," he said.

"Their right to justice is the same as their right to education and health and it is the duty of society to uphold that right."

How can one claim the interests of justice, or clients interests who may been represented by solicitors for years, decades even, had ever been served ?

Let's not string people along for years while they pay big fees or claim the legal aid, on the pretext of settlements which will never come ...

The Herald reports :

Lawyer defends access to justice

MARTIN WILLIAMS

A consumer watchdog's complaint which claims Scots are not getting sufficient access to affordable justice and legal representation has been condemned by a top solicitor.

Solicitor advocate Frank Maguire rejected claims by Which? that the current regulation of Scottish legal firms is hindering competition in the market, restricting choice and pushing up the price.

Writing in the latest edition of legal magazine The Firm, Mr Maguire, senior partner at Thompsons Solicitors, said the provision of legal services should not be governed by consumer law.

"Try telling families of the Stockline disaster, the recent tugboat tragedy on the Clyde, the husband of the family wiped out in a car accident from diesel spillage or someone dying from an industrial disease or infected with blood products that they are consuming justice.

"They are consuming nothing," he said.

"Their right to justice is the same as their right to education and health and it is the duty of society to uphold that right."

Under changes proposed south of the border, banks and supermarkets will soon be able to join forces with law firms to provide legal services.

But Which? says there has been little impetus for exploring, let alone implementing, alternative ways of doing business from the legal profession in Scotland.

The Office of Fair Trading (OFT) has upheld calls by Which? for a reform of the legal services market in Scotland, saying that the current regulatory regime is "restrictive" and harmful to consumers.