Law Society attacked over review request
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.