Feb 18 2009

Unmonitored self-certification and the professional responsibilities of solicitor-advocates

Woodside v HMA, [2007] HCJAC 19, is an Anderson appeal in a murder case in which the defence at trial had been conducted by a solicitor-advocate with “only the most diminished awareness of his responsibilities” on the instruction of a junior solicitor in his own firm. The client was left unaware that he was entitled to be defended by senior and junior counsel. In an important judgment, the High Court (Lord Justice Clerk, Lord Osborne, and Lord Nimmo Smith) considers the professional practice and conduct of solicitor-advocates in Scotland. I commented in an earlier post on the self-certification scam, by which inexperienced and incompetent solicitor-advocates can certify themselves as quasi-QCs for the purposes of legal aid, a scam which neither the Scottish Legal Aid Board nor the Scottish Government have shown energy in stopping. This post is made up for the most part of quotations from the opinions of the Court. These should speak for themselves; but I have added a postscript on the position of the Scottish Government and Scottish Legal Aid Board.

[66] Rights of audience in the High Court were extended to solicitors, on certain conditions, nearly twenty years ago (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (the 1990 Act), s 24). In this appeal we have had to consider the way in which rights of audience have been exercised. We are not concerned with the policy considerations that lay behind section 24 of the 1990 Act; but it is right that we should comment where weaknesses in the operation of it may put the interests of justice at risk.

[80] This appeal has highlighted problems of rights of audience that seem not to be unique to this case. I think that it would be opportune if there were to be a review of the working of the system overall.

Instruction of a solicitor-advocate by his or her employee, partner, or in return for reciprocal instructions

[72] …while [the Code of Conduct (Scotland) Rules 1992 and its 2002 replacement] imposed a professional obligation [on a solicitor to advise a client of the advantages and disadvantages of instructing appearance by a solicitor-advocate or by counsel], it provided no practical safeguard against its being ignored…
[73] But this case highlights a more serious problem. It arises from the fact that a solicitor advocate may accept instructions from his own firm (1992 Code, Sch, para 1(2); now the 2002 Rules, rule 1(2)). It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel, or a solicitor advocate from outside his firm, in circumstances where either of those options might be in the client’s best interests…
[74] … If a solicitor advocate is instructed by his own firm, the relationship of instructing solicitor and independent pleader is purely nominal. In this case the relationship of employer and employee would have been bound to inhibit Mr McGlashan from withdrawing Mr Brown’s instructions, if that had even occurred to him, when Mr Brown proposed to absent himself from the trial while on holiday… These considerations lead me to doubt whether the practice illustrated by this case properly reflects the assumptions on which section 24 of the 1990 Act was based.

[87]… There is anecdotal evidence that in other cases the arrangement is that solicitors in different firms take it in turns to act as instructing solicitor and solicitor advocate. This can hardly have been what Parliament had in mind in enacting section 24 of the 1990 Act.

Self-certification by solicitor-advocates of their own competence and seniority

[69] When senior and junior counsel are instructed in a defence, their roles and responsibilities are clear-cut and well understood. That concept of seniority is in my view conducive to the due administration of justice. It does not apply in the case of solicitor advocates. In the 1992 Code, the terms “senior solicitor advocate” and “junior solicitor advocate” were not defined. When two solicitor advocates conduct a defence together, the leading solicitor advocate is not necessarily senior to the other in terms of admission as a solicitor or admission as a solicitor advocate, or for that matter in terms of experience and skill. Sometimes two solicitor advocates appear in a trial, ostensibly as senior and junior, only to appear in a later trial with their roles reversed. Although the 1992 Code, like the current Rules for the Conduct of Solicitor Advocates 2002 (the 2002 rules, rule 9(5)), envisaged that where two solicitor advocates appeared together, there would be a relationship of senior and junior, in practice there is no concept of seniority other than for the purpose of charging fees.

[70] The matter of fees is no concern of this court, except where it may have a bearing on the due administration of justice. The undisputed evidence in this appeal is that when two solicitor advocates appear together, the nominal leader, whether or not he is senior to his colleague in any respect, and regardless of his experience, is paid as if he were a Queen’s Counsel. Such a solicitor advocate may have little experience and may be ineligible for silk. That rule creates an incentive that may not be in the interests of justice.

[75] To attain the rank and dignity of Queen’s Counsel, a member of the Bar or a solicitor advocate has to demonstrate the length and range of his experience and the quality of his skills and judgment. The Dean of Faculty supervises the representation of accused persons in the High Court by members of Faculty to ensure that serious and difficult defences are not put in the hands of inexperienced counsel. If necessary, the Dean will direct a member of the senior Bar, or an experienced junior of proven ability, to make himself available for a criminal defence, regardless of his prior commitments. With solicitor advocates, however, the position seems to be one of unmonitored self-certification. As Mr Brown told us, it is possible for a solicitor to be given rights of audience and to appear in the High Court on the following day on his own or as senior to another solicitor advocate. 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 a matter for concern. The 2002 Rules provide no safeguard to protect the accused in such a case from being defended by an inexperienced solicitor advocate whose reach exceeds his grasp.

[84] …It is essential that arrangements should be established, in terms of which, in such situations, there is clarity as to which of more than one practitioner involved is to be recognised as the senior. Plainly, responsibilities attach to the position of being the senior representative of an accused person, which do not attach to his or her junior. It is a corollary of that that, for purposes of professional discipline, such matters should not be in doubt. Unfortunately the present arrangements relating to solicitor advocates described in the Opinion of your Lordship in the chair, do not seem to me to achieve that necessary end. It is to be hoped that in early course the desirable changes will be made. It might be thought that, whatever form those arrangements might take, they would require to involve the making of an assessment as to whether a solicitor advocate was or was not qualified to act as a senior. The present arrangements in which two solicitor advocates may appear in one case, with one acting as senior and the same solicitor advocates may appear in another case, with the other acting as senior, seem to me unsatisfactory and to undermine the confidence which a senior should be able to command.

The attitudes of the Scottish Legal Aid Board and the Scottish Government

I have already commented on the history of futile discussion of this issue by the Board, which informs me that it has no idea how much money it pays out to self-certificated ‘senior solicitor-advocates’. The position of the Scottish Government is equally equivocal, or perhaps simply idle. As long ago as January 2006, a Scottish Executive working group wrote “The present situation is open to manipulation. The Board may be persuaded by a sanction application that a case is so serious it requires senior counsel. Once granted a solicitor advocate then acts as senior counsel or appoints another solicitor-advocate who has little experience to act as senior counsel. If the case is serious enough then the Board grants sanction, but in return expects a suitably qualified person to act as counsel. However at the moment there is a gap open to abuse…“.

Another internal briefing paper of 2006 said of the current position that “it ignores the quality aspect of the representation… The Executive has made it clear that it considers this arrangement to be deeply flawed, a view shared by the Board, and that it cannot continue…“.

On 15 August 2007 the Secretary for Justice wrote to the Law Society warning of “imposing an alternative solution” if the current rules, which in his words “can give rise to anomalies and can be unfair” were not reformed “relatively soon“.

They have not been. Nor have any realistic and non-abusive changes been so much as suggested. Since 2007, both the Board and the Government seem to have lost interest in the issue. Nothing more seems to have been done, other than an occasional bleating letter to the Law Society to ask them what they think. The current stated policy of civil servants in the Constitution, Law and Courts Directorate is that “the issue should be resolved by the profession itself, within a reasonable timescale“.

It may be hoped that the comments of the Court will kickstart the debate, which as the Scottish Legal Aid Board wrote almost three years ago “we need to address… as a matter of some urgency“. But, given the atmosphere of torpor in both SLAB and the CLCD, I am not sure that it can be expected.


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