Sep 04 2008

The proposed Legal Profession Bill

The First Minister’s statement to Parliament on 3 September promised to bring forward, as one of fifteen bills this session, a Legal Profession Bill1 for Scotland: “We will also introduce a Legal Profession Bill. This will be the first significant reform of the legal profession since 1980, and will introduce alternative business structures to the legal profession while maintaining the profession’s independence and strength.” The background briefing gives the proposed timetable: “Introducing and regulating alternative business structures will require legislation. The intention is to develop ABS policy proposals further with interested parties and consult publicly in time to introduce a Bill to the Scottish Parliament in June 2009, with the legislation in place by summer 2010.

My primary concern is with the proposals as they directly affect the working of the Bar. Here, nothing more is said in the available material than this: “The Faculty of Advocates also published a response in May 20082, indicating its readiness to remove restrictive rules, such as on mixed doubles (advocates appearing with solicitor advocates), while maintaining an independent referral bar. Advocates should remain subject to the “cab-rank” rule which means that they must accept instructions in their field without discrimination. The Cabinet Secretary for Justice agrees that an independent referral bar is a strength and is compatible with suitable modernisation.”

As the cab-rank rule could hardly survive the wholesale introduction of partnerships at the bar, whether between advocates only or between advocates and solicitors (who have no such rule), this suggests that it is not intended to permit such partnerships and that the reference to alternative business structures is applicable only to solicitors; but this may be reading too much into the statement. At the time of writing, the Faculty did not seem to have made any public comment on the proposals.

Key issues for the bar include these:

  • Should partnerships between practising advocates be permitted?
  • Should partnerships between practising advocates and solicitors be permitted?
  • If partnerships were to be permitted, could conflict of interest questions be regulated while preserving a wide choice of counsel?
  • If there were partnerships between advocates and solicitors, would those advocates be entitled to escape the cab-rank rule?
  • Could the cab-rank rule then remain in place only for other advocates?
  • If the rule went, what might be the effect on unpopular seekers after advocates services, and on the courts system?
  • Should it be made easier for solicitor-advocates to become advocates, by allowing them to avoid devilling?
  • Should it be made easier for advocates to become solicitor-advocates, by giving automatic rights of audience?
  • Should junior solicitor-advocates continue to be permitted to self-certificate themselves as senior counsel for legal aid purposes?
  • If so, how could the ‘mixed doubles’ rule be abolished?
  • Should direct access be extended to the general public and if so how might this work in practice?
  1. Some of the background material uses the title Legal Services Bill. [back]
  2. Careful: this is a scanned PDF file and is over 10 Mb. The Faculty’s earlier response is here. [back]
Share

Comments Off on The proposed Legal Profession Bill

Comments on this post are closed at this time.

.