FAQs about advocates
This page got too long and is now divided into two: if what you're looking for isn't here, go to the first page.
There is no logical order to these FAQs, many of which interrelate. You may find the question answered better, or differently, or more officially, on the new Faculty website.
how are advocates instructed?
Instructions are usually sent in writing, with accompanying papers, directly to the advocate; but many (not all) advocates are increasingly happy to take instructions by e-mail (for e-mail addressing, see this question). There is a description in the Direct Access Guide, pdf file, of how best to send instructions to advocates; rather schoolmasterly and in reality nobody ever follows its perfectionist prescriptions, but not a bad introduction if you have not done this before. A good description, written to some extent from an English perspective but nevertheless useful, is on the Eurolaw site on their 'Direct Access' page. Macphail's 'Sheriff Court Practice', vol. 1, second edition, deals with instructing counsel at section 12.21.
If however you are asking this question with a view to sending instructions because you have not done so before or are unclear as to how best to send them, you are probably well-advised to contact one of the clerks to discuss this and discuss likely fees. The contact details of all clerks are on the Faculty of Advocates website; they are available 9 to 5. Two have an independent internet presence: Iain Murray, and Christine Ferguson.
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How are advocates fees charged: how much do they cost?
Fees are open to negotiation with counsel's clerks. In practice fees are normally charged item by item, or day by day for court appearances, but they may be agreed as an hourly rate, as a block fee, or otherwise. As an example, there is a description of commitment fees in Aberdeen City Council v Fairhurst, 20 July 1999. If fees are not agreed beforehand with the clerk, as is almost always possible, a reasonable fee will be charged; disputes are subject to independent arbitration by the Auditor of the Court of Session or otherwise. Because advocates overhead expenses are so little compared to solicitors or to English barristers, fee rates for any work at any given level of ability and seniority tend to be less than either of these- in civil Legal Aid cases, where most work is done to set scales, advocates are often paid less per hour than a trainee solicitor sitting watching. In non-legal aid cases, fee levels will vary with seniority, expertise, the nature of the work, and so on; there is no scale of fees. One of the functions of clerks is to negotiate and advise on fees with the instructing agent.
What happens if the fees aren't paid?
There is a recognised professional obligation on Scottish solicitors to meet fees due in terms of the current Fees Scheme (pdf), and for other lawyers in terms of the CCBE Code of Conduct (pdf) paragraph 5.7 or otherwise. There are similar provisions under the Direct Access scheme (pdf). Because historically advocates could not sue for their fees (and it is still doubtful whether they are legally entitled to do so), a guarantee that reasonable fees will be met by the instructing lawyer or other professional is required.
Since 7 August 2002, interest (at 8% over bank base lending rate) is by statute due on counsels fees in some circumstances; very roughly, work for business or public clients and Legal Aid work, if not paid within the generous periods of free credit offered by the Fees Scheme (pdf) or the amazingly generous periods of free credit (typically years, not months) imposed by the Legal Aid scheme read with the SLAB Service Standards. In practice interest is very rarely sought.
Is VAT chargeable on counsel's fees?
Advocates fees carry VAT at 17.5%, with the exception of some newly-called advocates who are not yet registered for VAT. Those instructing from other EU countries, however, may have the option of paying VAT to their own national authority at their national rate if registered for VAT there. There is normally no VAT on fees to non-EU clients unless the instructions come via a professional within the EU.
Is legal aid available to instruct counsel?
Yes, in principle, although its availability is limited in many ways and current proposals to limit the practice of paying counsel for work done will, if implemented, have the practical result that it will be almost impossible to find advocates prepared to accept legal aid in civil actions (these proposals are not finalised). Meanwhile, unlike in England and Wales, legal aid is still available for personal injury actions.
Except in international child abduction cases, civil legal aid is means-tested and the Scottish Legal Aid Board must authorise the use of counsel. The current (now April 2001) edition of the Scottish Legal Aid Handbook fully describes the scheme but there have been numerous changes since its publication (see page 11 of SLAB 2002-3 Annual Report (pdf ); changes in civil legal aid from 1 October 2003; and, for advocates, the 'service standards' for payment). For the Handbook and other legal aid material, go to Legal Aid page or the Scottish Legal Aid Board website.
From 1 September 2003, English legal aid is no longer available for immigration proceedings in Scotland (see here for reasons); Scottish legal aid must now be applied for under the ABWOR scheme. Its restrictions, particularly on research and preparation time and on the use of counsel, will come as an unpleasant shock to those used to the English system.
The Faculty also operates a Free Legal Services Unit in co-operation with the Legal Services Agency and Citizens Advice Scotland which provides free advice and representation in some social welfare cases.
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What are advocates professional rules?
The current edition of the Guide to Professional Conduct (pdf) is here. This was last published in 1988 and is in a number of respects out of date. For example, parts 4.2, 4.5.1, and part of 5.10 are effectively superseded, and part 1.2 should be read subject to the decision in Hall v Simon, 2000 UKHL 38. The Guide is actively under revision by the Professional Standards Committee of the Faculty of Advocates. The CCBE Code of Conduct (pdf) is also applicable.
For present purposes, the most fundamental rule is probably that advocates cannot pick and choose their clients; their clients choose them: without very good cause an advocate is not entitled to refuse instructions to act for any client in any litigation who is prepared to pay a reasonable fee (the 'cab-rank' rule). Because solicitor-advocates do not have this rule and can cherry-pick, the cab-rank rule is now under question.
Professional rules are also under scrutiny in the Justice Department Working Group (see comment).
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How are complaints against advocates managed?
Any complaint is begun by writing to the Dean of Faculty, Advocates Library, Parliament House, Edinburgh (there is generally a six-month time limit on complaints). The disciplinary procedure (pdf) is here. If the complainant is dissatisfied with how the complaint was handled, they can complain to the Scottish Legal Services Ombudsman. The Ombudsman's 2003 Report comments: "The Faculty made and implemented a number of significant and, in my view, very positive changes to complaint handling in 2002. For the first time it worked within a written complaint handling procedure, providing a copy to complainants. Secondly it allocated additional resources to complaint handling by appointing an assistant to the Dean. As the Dean is often away, this simple measure has reduced delays and provided a consistent point of contact – both of which are much appreciated. The assistant has also developed and maintained the basic administrative systems that were lacking in the past, including a speedily established email address. The new complaints system has the capacity to be fair and balanced and appear to be fair and balanced. Complaints are determined by a Complaints Committee, rather than by the Dean alone, and the Committee includes someone who is not an advocate". The Complaints Committee now has 50% non-lawyer membership.
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What are 'stables', and who are clerks?
Practically all practising advocates (99.6%) use a service company, Faculty Services Limited. This handles clerking and secretarial services and fee collection, charging a commission on fees recovered. Fee collection is centralised, but clerking is done through eleven 'stables' of advocates. These are not independent of each other, like legal firms or English barristers chambers; they are part of one organisation, although to some extent they have different styles; thus three (Connarty, Mackinnon, Black) handle almost exclusively criminal work, and eight almost exclusively civil (including commercial and administrative). Some fields of law tend to cluster in one or more stables, for example human rights and public law in the Murray stable; others, such as intellectual property or commercial litigation, are spread around.
Each stable has a clerk, and one or more deputies. They assist counsel with the smooth running of their practices, schedule court appearances and consultations, negotiate fees, and deal with solicitors and others on their behalf. A job description is here and a picture here.
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Who are 'devils' and 'Eurodevils'?
The last part of professional training before admission as an advocate is an unpaid year, more or less, spent shadowing a junior advocate (and much else). This is called 'devilling' and those doing it are thus 'devils'; my former devils are Norman Ritchie QC, Raj Jandoo, and Robert Sutherland. There is a fuller description on the official website here, and the Devils Handbook, published by the Faculty , describes the devilling course in detail.
The Eurodevils, named after them, are participants in the European Young Lawyers Scheme run by the British Council who shadow senior and junior advocates for two months a year; mine have been Dorthe Pederson, Katarína Lenghardtová, Gerda Vastagh, Bora Balci, Johanna Aho, and Patrick Govaert.
I was thinking of qualifying as an advocate: how do I do this?
Material on this is now collected on the new Faculty page on qualifying; read in particular the Careers brochure and the Intrants Regulations. The usual basic requirements are, put simply, a second class honours degree in Scots law and the Diploma in Legal Practice, followed by at least a year training in a solicitors office and a further year devilling; in practice, however, the vast majority of intrants have worked as solicitors for several years.
Is there a maternity, or paternity, or childcare policy for advocates?
Not as such, because of the nature of practice as a self-employed individual. Any advocate who takes maternity leave, for example, is still guaranteed her place in their stable and the right to use the library. Those relatively small Faculty dues which are charged to all practising advocates without regard to income are waived during maternity leave, as in practice is the obligation to carry out Continuing Professional Development. The most significant practical issue is the operation of the cab-rank rule. Child commitments are generally accepted as potentially a valid reason for refusing work, but this is a matter of degree.
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Why do advocates wear wigs?
Wigs came into fashion in Scotland in the 1680s, as a French import. From the 1780s they slowly passed out of fashion, again following the French example; by 1840, advocates were equally divided between those who wore, and those who did not wear, wigs. Outside Parliament House they had become practically unknown. The pendulum then swung the other way; by the 1870s their use was again universal among advocates, entirely as a matter of personal choice and apparently to distinguish advocates from macers (court officials). The Irish Bar, it seems, returned to wearing wigs rather later. All modern surveys have shown that the court-visiting public want us to continue wearing them, and in 2002 advocates voted overwhelmingly to do so; they are in effect a compulsory part of the costume. But why? A Faculty justification of wigwearing is here. The arguments for and against have not moved very far since WB Yeats described the wearing of wigs as 'essentially preposterous' in a 1926 debate on the subject.
Does the Faculty have any position, or indeed anything to say, on a particular law reform issue?
Yes, quite likely. It is frequently asked to submit evidence on law reform or other legal issues and is pretty conscientious about responding. Regrettably, it makes no systematic effort to publicise its responses, even on its website. The only responses which are readily available are, so far as I know, these:
- Evidence to the Clementi Review on changes in the English legal profession;
- Evidence to the Subordinate Legislation Committee of the Scottish Parliament on drafting and publication of legislation;
- Evidence to a consultation paper on establishment of a Supreme Court for the United Kingdom.
There are occasional notes on the Faculty news page. For any other response, evidence, or position, ask Bruce McKain at the Faculty.
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