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NewsA Scottish Solution To Access To JusticeNews - date posted 20/06/08 Access to justice in Scotland would be diminished and public choice reduced if advocates operated in partnerships, the Faculty of Advocates has argued. In its response to the Government policy statement on regulation and business structures in the Scottish legal profession the Faculty maintains that independent advocates each operating as one-person businesses play a vital role in consumer choice. In a letter to Justice Secretary Kenny MacAskill which accompanies the Faculty response, Richard Keen QC, the Dean of Faculty, states: "I believe there is willingness and an ability to embrace change and improvement in both branches of the legal profession in Scotland. "Ultimately, what we must have in mind is the maintenance of an effective system of justice which respects the rule of law; and access to such a system of justice for the entire Scottish community." The response - Access to Justice a Scottish Perspective a Scottish Solution -also emphasises the importance of the Faculty's cab-rank rule which upholds the fundamental principle that no-one should be denied access to a lawyer because they are unpopular or hold unpopular beliefs. "In a legal system which cannot always avoid reflecting the inequalities in society, it is of the highest importance that citizens, however unpopular they or their causes may be, are able to obtain the services of advocates of high quality," the Faculty response states. The Faculty says it appreciates the need to analyse critically the relevance of what it does and how it can best optimise the services it delivers to Scottish institutions and the Scottish public. The response adds: "The Faculty recognises the need to be outward looking, accessible and economically effective." AN INDEPENDENT REFERRAL BAR: "A large proportion of solicitors operate upon a small scale in what might be termed general practice. This is particularly the case in small towns and rural areas throughout Scotland. "These firms and their clients have unhindered access to an independent referral Bar capable of providing both advocacy services and independent legal advice. That is important not only in providing choice to consumers of legal services and to justice for many who do not have a realistic means of access to the large specialists firms of solicitors concentrated within our major cities." PROHIBITION ON PARTNERSHIPS: The Faculty's code of conduct prevents advocates from becoming partners with fellow advocates or solicitors and has been criticised by the Consumer Council as a restrictive practice. "It is no such thing," argues the Faculty response. "An advocate who is in partnership with another advocate or other professional whether they be solicitors or otherwise, becomes bound by his duties to the firm of which he is a member. He can no longer be subject to the cab-rank rule. He cannot be bound in law to accept an instruction which would conflict with the interests of his fellow partners." The Faculty accepts that individual lawyers should be free to adopt alternative business models if they so wish, so that an advocate who wished to abandon the obligations of the cab-rank rule should be able move into practice as a solicitor-advocate. "In the view of the Faculty the relevant perspective should be that of choice to the consumer of legal services rather than the provider. "...the introduction of partnership would be wholly inconsistent with the maintenance of an independent referral Bar and would result in a reduction rather than an increase in consumer choice." The Faculty accepts the need for clients to have unhindered access to advocates and solicitor-advocates and will address the present ban on "mixed doubles" which prevents the instruction of an advocate and solicitor-advocate in the same case. The response concludes that "such an impediment to competition can no longer be justified." |
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