Jonathan Mitchell QC

The Dean of Faculty has pointed out to all practising advocates that they may not accept instructions as counsel from Instruct Us Now Ltd, a company which claims to ‘organise counsel for Scottish solicitors‘ with ‘fees based around a reasonable hourly rate‘, because the company has never sought or obtained direct access rights.

Advocates remain entitled to accept instructions from a solicitor delivered to them on behalf of the solicitor by Instruct Us Now Ltd; but, clearly, if they do so, they will have to send their fee notes directly to the instructing solicitor, who will be liable under the 2008 Fees Scheme¹. If solicitors are paying counsel’s fees directly to Faculty Services, or even to the individual counsel, as the scheme requires, there can be no room for confusion as to how much those fees might be, and it should also be obvious what price is in fact being paid for the service of the ‘organiser’.

It is not wholly clear, at least to me, what the point of instructing counsel via an unqualified intermediary might be, standing the ease of going through clerks, who have access to all practising advocates. Unless anyone can explain otherwise, it seems obvious that somebody has to pay for the additional middleman; and ultimately that will be the client. An earlier such company, Instruct Counsel, used to collect fees from solicitors and, while keeping a substantial percentage of the notional fee, pass the remainder on to counsel selected from a small group of those hungry enough to co-operate in such an arrangement. This allowed instructing solicitors, if naïve enough, to persuade themselves that the service was free. How such fees were accounted for or justified to the client, or party-party, may have been a difficult question for the instructing solicitor. Were the actual counsel, paid at a comparatively low rate, of the same standard as the counsel who could have been instructed at the far higher rate actually charged? Solicitors who could tell the difference would presumably have instructed direct. Would the paying party be told that the fee they were called on to pay was substantially greater than the fee actually paid to counsel? This is now, however, only of historical interest.

1. This scheme replaced the 2002 scheme, which was negotiated between the Faculty and the Law Society, earlier this year; it covers cases first instructed since January 1, 2008, but the 2002 scheme continues in force for cases first instructed before then. [back]

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