The Role of Counsel
When a civil action or criminal prosecution is current, or
in contemplation, a practitioner may often require assistance
from an Advocate on their client’s behalf. This need may
arise even in situations where no legal proceedings are contemplated.
There are many sound reasons for seeking Counsel’s help.
- Pressure of business, preventing the busy practitioner
from devoting the necessary time to the problem.
- Realisation that the practitioner does not have sufficient
expertise in advocacy, or in the legal field concerned.
- Appreciation that the problem might benefit from an independent
review which would not cut across the existing solicitor-client
Whatever the reason, the option of engaging Counsel should
always be considered by practitioners wishing to provide their
client with the best possible service. The combination of
Counsel and agent is often the best representation a client
could wish for and, as already indicated, practitioners will
never feel that the client is other than their own.
While they hold professional instructions, Counsel must act
as they think appropriate, having regard not only to the interests
of the client, but also to their duty towards the Court. However,
the scope and duration of such instructions are always matters
to be determined between practitioner and client.
Counsel can assist in the following areas:
Pre Litigation and General Advice
These are two main methods by which Counsel may help: by written
opinion and in consultation. The two may effectively be used
in conjunction. For example an initial written opinion may
raise points which merit discussion at a meeting with the
Advocate concerned or even with a different Advocate. Alternatively
the practitioner may decide as first step to explore the facts
and the law at a consultation with Counsel, either alone or
with the client present. While the advice of Counsel at the
consultation may be sufficient it may lead to a written opinion
being instructed. Whatever the decisions, it is the prerogative
of the client and the practitioner.
One benefit of a consultation is that it can be arranged
to take place speedily and at any convenient location. An
advantage of a written opinion prepared over a longer period
is that it will usually reflect more extensive consideration
and reflection. However, in the case of any written work,
a reasonable time limit can always be imposed in communications
with Counsel or their clerk.
Counsel can be involved at any or all stages of a civil litigation
or other process. That involvement is normally but not exclusively
related to one or more of the following areas:-
Initial Framing of Pleadings (Summons/Petition/initial
The framing of written pleadings can often be of
critical importance. Therefore practitioners may consider
the employment of Counsel’s expertise at this stage,
irrespective of whether they intend to instruct Counsel thereafter.
Revisal of Pleadings
No matter who drafts the original pleadings, practitioners
may consider it prudent to have Counsel review them at the
adjustment stage or even after the Record has closed. Independent
scrutiny will often save trouble and expense at a later Debate
Counsel are skilled in the research and presentation
of legal argument and practitioners will often benefit from
instructing Counsel in these areas. They may choose to do
so where there is insufficient time to inform themselves fully
of the legal issues involved. They may feel that they do not
have the expertise in court work generally or in the particular
field of law involved. Whatever the reason, they should consider
carefully whether Counsel’s involvement would result
in a more effective presentation of their client’s case.
Notes on the Line of Evidence
The purpose of such a note is to provide practitioners
with clear written advice on what is required by way of witnesses
and productions for any hearing where evidence is to be led.
It will indicate which further lines of enquiry are required
to reset the case fully. Such a note can be sought even if
Counsel has not previously been involved and whether or not
it is intended to instruct Counsel to conduct the hearing.
Whether the client is present or not, it is common
practice to obtain Counsel’s advice at consultation.
A consultation may take place at any stage of a case, and
may be arranged to discuss the case generally or to address
a particular problem or aspect. It may take place at the Faculty’s
Consultation Centre, (the Lord Reid Building, 142 High Street,
Edinburgh, EH1 1RF) or at any other place by agreement. It
is usually vital to discuss the presentation of a case well
in advance of a significant hearing. Ideally such a consultation
should take place once enquiries recommended in a Note on
the Line of Evidence have been carried out. However, that
ideal need not be followed, and a pre-hearing consultation
is often held in place of a formal Note on Line of Evidence.
Again, practitioners are entitled to instruct such a consultation
irrespective of whether they wish Counsel to be involved at
Proof or other Hearing
Wherever the hearing is to take place, practitioners
may feel that it would be in the client’s interest for
it to be conducted by Counsel. With Counsel concentrating
on presentation and the practitioner acting in an administrative
role, the case is likely to proceed more smoothly and to much
greater effect. Counsel may be instructed at this stage whether
previously involved or not.
Counsel are skilled and experienced in conducting appeals
in Court and in providing informed advice on their prospects.
A written opinion and/or a consultation will often be appropriate,
particularly in relation to the preparation of grounds of
appeal, the identification of necessary documents and the
assessment of prospects of success. Counsel frequently undertake
appeals without having been involved at first instance, although
the difficulty of doing so is obviously greater where the
earlier procedure has been lengthy or complex.
The Faculty of Advocates has a substantial number
of Members who practice mainly in criminal defence work and,
along with the Procurator Fiscal service, provides the Crown
with prosecutors in the High Court (the Advocates-Depute).
Although particularly experienced in High Court trials, Counsel
are frequently instructed in Sheriff and Jury cases, where
issues of complexity arise where the matter is one of unusual
importance to the client. Skilled Counsel are also well used
to appearing in the Sheriff Court at summary level, in the
District Court and in Courts Martial.
Practitioners will often only involve Counsel at the stage
of the trial. However, where legal issues appear to arise
at an earlier stage, it may be prudent to instruct Counsel
for advice and guidance on how best to proceed. Such advice
can be tendered by note or at consultation regardless of whether
or not Counsel is instructed to appear at any subsequent diet.
It is normal, in criminal matters, for Counsel to consult
either at the prison or in the solicitor’s office, although
the Consultation Centre may of course be used if this is convenient.
In particularly serious cases it is often useful to involve
Counsel at a very early stage, perhaps from the time of an
accused person’s first appearance on petition. This
can assist in the early identification of specialised areas
of enquiry. It also allows practitioners to call upon Counsel’s
experience in assisting to direct the general lines of enquiry
to be followed in preparation of the case.
Counsel are also skilled and experienced in conducting Criminal
Appeals against refusal to grant bail or interim liberation,
appeal against conviction, sentence or both, and in the presentation
of bills and petitions to the High Court sitting as a Court
Arbitration, Mediation and other Dispute Resolution
In all fields of law Counsel may be approached to
help resolve disputes as arbiters, independent experts or
mediators. Many have formal qualifications in those areas,
but a reference may be made to any Counsel considered to have
appropriate stature and ability. In addition to quality of
service the advantages of such references include privacy