All legal organisations are under increased scrutiny at the moment as they jockey to find their rightful position in an ever changing legal landscape. the faculty of advocates is no stranger to fighting its corner when it comes to re-asserting the importance of its place in the Scottish legal structure. dean of faculty Richard Keen offers his thoughts on how advocates should be allowed to work in the future to fulfill their obligations in an ever changing society.

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Readers of The Firm will be well aware that lawyers are under unparalleled scrutiny and face intense pressure to consider changes in the way they do business. The Faculty is of course not immune from this examination and I accept that its status as an ancient and venerable institution provides no guarantee of its success or its future.

It is suggested increasingly from the Consumers Association, the OFT and even the Law Society that the professional rules which underpin the existence of an independent Scottish Bar – namely the requirement that advocates practice independently of one another and of any other firm or institution and that they obey the cab rank  rule – operate anti-competitively.  It has also been said that the prohibition on members of Faculty adopting different forms of business organisation has no proper justification.

These objections are misconceived. Our existing rules of practice maximise choice and competition. To go into partnership would increase the frequency of conflict of interest to an intolerable extent. It would be bound to reduce the number of practitioners actually available to accept instructions in particular litigation.

In any event lawyers now have an effective choice; a lawyer who wishes to plead in the Supreme Courts in partnership is free to do so as a solicitor with extended rights. Further, the significant degree of common legal training in Scotland makes a change from one side of the profession to the other relatively simple.

The independence of advocates one from another is an essential element in the maintenance of the cab rank rule. An advocate is not free to refuse instructions from a client who offers to pay a reasonable fee provided he is qualified and able
to carry out those instructions.This rule facilitates access to justice.

In addition, the cab rank rule maintains the independence of the advocate. If an advocate could refuse to act for those whom he regarded with distaste he would implicitly be taken as approving of the clients for whom he did act.

In the final analysis, in a free society it is only acceptable for the might of the state to be brought to bear on individuals, if those affected, have an opportunity to have their position presented by an independent professional.

The cab rank rule plays an important role in achieving this end. This is particularly important for criminal practitioners who so often are at the front line of the duties of the Faculty. Members of Faculty act in litigation only on the instructions of solicitors. This has at least four major benefits for clients and for the administration of justice as a whole.

First, the practical division of functions allows the advocate to focus on the effective presentation of the client’s case in a way which would not be possible if he were also responsible for the conduct of the litigation. It is particularly beneficial to the Supreme Courts to have a specialist body of pleaders skilled in advocacy and legal research.

Second, the division of functions permits advocates to gain a much greater breadth and depth of experience in the particular skills which they profess than would be possible if they were responsible for the conduct of a litigation.

Third, it enables advocates to operate with very low overheads. Advocates are not and do not need to be part of a guarantee fund or a master policy and do not need to maintain an office and support staff.

Fourth, most clients encounter litigation or have legal problems calling for the specialist skills of an advocate very rarely. Most clients would be unable to make an informed selection of an advocate to represent them. The recent suggestion that advocates should advertise their “success rate” is completely misleading. On no view could success rates in litigation provide any useful measure of the skill of an advocate; good lawyers often settle cases; cases may be won and lost for various reasons; fundamentally, the results should be a reflection of the merits of the case not a comparative assessment to the skills of the lawyers.

The Faculty remains a vigorous and effective branch of the legal profession in Scotland not through an accident of history but because of the significant part it plays in maintaining the rule of law and providing access to justice for the people of Scotland.