Benefits of referral system hold true

Colin Campbell, QC, the Dean of the Faculty of Advocates, considers the role of the Faculty in the administration of justice in Scotland today and reports on the World Bar Conference, recently held in Edinburgh.

In last month’s Journal I considered some of the challenges and opportunities facing the profession, and in particular the Bar, in Scotland.  I also mentioned the Inaugural World Bar Conference, which the Faculty hosted in Edinburgh at the end of June.  At the end of this discussion I will report on one important outcome of that Conference.  However, my main purpose in this article is to fulfil the promise I made last month, namely to explain why I contend that the basic features of the Scottish Bar lead to greater choice for the consumer, and enhance the quality of legal services for our citizens and for the overall administration of justice in our country.

The Scottish Bar, like similar Bars elsewhere, is characterised by two features: (i) advocates practise independently of one another and of any firm or institution; and (ii) advocates are not free to accept direct instructions from lay clients. At a time when professional rules such as these are coming under increasing scrutiny, it may be worthwhile to examine them a little further, for it is my view that they operate in the interests of solicitors, their clients and the administration of justice in Scotland.

Independence

The existence of over 400 independent practising advocates, each of whom is available to act on the instruction of any solicitor, anywhere in Scotland, maintains and promotes choice and competition in the provision of legal services throughout Scotland.  The Faculty is a resource upon which solicitors may draw as and when they wish to do so. Solicitors’ firms throughout Scotland have access to the whole range of expertise offered by advocates.  As a result smaller firms can provide their clients with a wider and more complete service than they could offer from their internal resources.  This helps to maintain rural and smaller town practices, something which is important for access to justice across Scotland.

The independence of advocates, one from another, is essential to 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.  As Lord Pearce once said:

“It is easier, pleasanter and more advantageous professionally for barristers to represent or defend those who are decent and reasonable and likely to succeed in their action or their defence, than those who are unpleasant, unreasonable, disreputable and have an apparently hopeless case.  Yet it would be tragic if our legal system failed to provide reputable defenders, representatives or advisers for the latter.”

In addition, the 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 (whether by way of criminal sanction or through the enforcement of civil obligations) if those affected, however unpopular, have an opportunity to have their position presented vigorously 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 Bar.

A Referral Profession

Advocates 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.  Firstly, in the context of any particular litigation, 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.  Our judges, and the quality of their decisions, are dependent upon the advocacy and the submissions of those appearing before them.

Secondly, 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 litigation.  Advocacy is a practical skill which is developed and maintained through practice.  

Thirdly, it enables advocates to operate with very low overheads.  Advocates do not have and do not need an office and support staff.  They do not deal directly with clients, nor handle clients’ money. They have no administrative responsibilities for litigation.  They can, through the Faculty and Faculty Services Limited, enjoy economies of scale in respect of shared services and facilities.  The Advocates Library is a good example of this.  Recent studies in England and Wales showed that average hourly rates for barristers for general civil work in that jurisdiction were significantly lower than those for solicitors of equivalent seniority undertaking litigation.  I would be surprised if this result did not hold true for Scotland.  There are some who suggest that the divided profession increases cost.  This presupposes, wrongly, that there is no functional demarcation between the work of the two professionals.

The fourth benefit is this. Most clients encounter litigation or have legal problems calling for the specialist skills of an advocate very rarely. Further, most clients would be unable to make an informed selection of an advocate to represent them. Nor could advertising, in my view, give clients sufficient and appropriate information upon which to make an informed choice. A report produced recently for the Office of Fair Trading suggested that barristers in England and Wales should be permitted to advertise their “success rate”.  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 be lost) for various reasons; fundamentally, the result should be a reflection of the merits of the case, not of a comparative assessment of the skills of the lawyers. In circumstances where the client has specialist needs but limited information, a solicitor plays a vital role in selecting an appropriate advocate.

Freedom for Professionals?

It has been suggested that the two professional rules which underpin the Scottish Bar – namely the requirement that advocates practice independently of one another and of any other firm or institution, and the limitations on direct access – operate anti-competitively. It has also been said that the prohibition on advocates adopting different forms of business organisation has no proper justification.  In my view these objections are misconceived. The rules maximise choice and competition. To permit partnerships would increase the frequency of conflicts of interest, when compared with individual practitioners.  It would be bound to reduce the number of practitioners available to the client.  The public interest benefits arising from the limitations on direct access have been outlined earlier.  

Even if the suggestion of an anti-competitive effect was true, the benefits of a referral Bar to the public at large in Scotland, would justify the existence of those rules.  In any event lawyers now have an effective choice:  a lawyer who wishes to plead in the Supreme Courts but in partnership, is free to do so as a solicitor with extended rights of audience.  Further, the significant degree of common legal training in Scotland makes a change from one side of the profession to the other relatively easy.

I hope that these observations explain why I hold to the view that a healthy Scottish Bar operates strongly in the public interest; leads to greater choice for those in need of legal services; promotes independence; and enhances the quality of the administration of justice in Scotland.  

I will close these two articles with a few very general thoughts, drawing in the main from my own experience. The Faculty is sometimes portrayed as an old fashioned bastion of privilege.  I doubt if anyone familiar with the Faculty and its members today would recognise this description.  The Scottish Bar is open to all who have the appropriate academic qualifications.  There is no need to have connections or come from any particular background. There is no major initial capital contribution. Once admitted to the Bar, a new advocate is given a place in Parliament House on the same basis as everyone else.

Thereafter, throughout their professional career advocates are constantly subjected to rigorous public assessment – by judges, solicitors, clients and colleagues.  Whether you sink or swim depends upon your ability, and nothing else. When I joined the Faculty all of this was immediately obvious to me.  If you can provide good legal advice; if you are willing to work hard; and if you are up to scratch in court, you will succeed.  There are no other prerequisites. This is a meritocracy – and also a varied, challenging and endlessly fascinating life.

Postscript – The Edinburgh Declaration
As I mentioned earlier, at the end of last month the Faculty of Advocates hosted the Inaugural World Conference of Barristers and Advocates in Parliament House.  This was the first time that the referral Bars have gathered to discuss matters of mutual interest and concern. Delegates came from New Zealand, Australia, Hong Kong, Zimbabwe, South Africa, and of course from the four Bars separated by the Irish Sea.

The speakers included Mary Robinson, the former President of Ireland and currently the United Nations Commissioner for Human Rights; the Lord President, Lord Cullen; the Hon. Anthony Gubbay S.C., former Chief Justice of Zimbabwe; and the Rt. Hon. Lord Goldsmith QC, the Attorney-General of England and Wales.  The Conference was a great success.  To do justice to the excellent addresses and to even scratch the surface of our deliberations would take up far more space than is available to me in this article.  Instead, I will tell you about only one thing, though in my view it was by far the most important outcome of the Conference.  

By the end of the second day’s discussions, it had become obvious that, whatever other challenges are facing the referral Bars, there is one overriding matter which we have a duty to address and take forward.  It is a duty which is not peculiar to the Bars, but rests on the entire independent legal profession.  However, recognising that the Bars have a particular role to play, and as a tangible and lasting record of our shared commitment to this task, the delegates unanimously passed a resolution, which is already becoming known as the “Edinburgh Declaration”.  Before I convey its main theme, let me tell you something of how all of this came about.  

Mary Robinson, who is also an Irish barrister, challenged us to ask ourselves whether we do enough to satisfy the responsibility placed on every lawyer and on every lawyer’s professional body to maintain and promote respect for human rights, the rule of law, and basic civil liberties; not just at home, but wherever they are absent or under threat.  This was a challenge which struck home with myself, both personally and as the head of the Scottish Bar, and I suspect with many others present in the Laigh Hall.  While we spend much time and energy on the commercial aspects of our professional lives, and while, quite rightly, we are quick to defend the rights and privileges of the independent legal profession: do we do enough – do we do all we could – to discharge the core duty of the profession, namely to stop injustice and to maintain human rights for the poor and for the vulnerable?

After powerful and moving speeches from former Chief Justice Gubbay, and from the Chairmen of the Zimbabwe and Hong Kong Bars, three clear lessons could be identified:

• While we, perhaps somewhat complacently, take many things for granted in the justice system in this country, there are parts of the world where independent judges and the legal profession are under attack, in some cases quite literally, from governments with no respect for the independent and impartial due process of law.
• While many judges and lawyers have taken courageous stands against such oppression and injustice, the referral Bars represented at the Conference could and should do more in response.
• Lawyers cannot expect politicians and the public at large to respect the necessary independence and other rights of those administering justice, if we do not take seriously the corresponding responsibilities placed on all of us who enjoy these privileges.  

Happily I can write not only on behalf of the Faculty, but also on behalf of the World Referral Bar Conference.  This is because the Declaration, amongst other things, commits the referral Bars to “support, in all ways open to them, legal practitioners in all countries where their capacity to practise and organise themselves freely and independently is under threat.”   Special mention is made of Zimbabwe and Hong Kong, though their problems are far from unique.  The Bars also resolved to “co-ordinate and advance the work of Bars around the world for the protection of human rights and the enhancement of pro bono legal services for the poor and vulnerable.”

The full text of the Declaration and details of the Conference can be found at www.worldbaronline.com.

It is one thing to pass a declaration, it is another to implement effective and speedy action.  However, having been sensitised to these pressing matters in a fresh and urgent way, the Bar leaders met in the Advocates Library immediately after the Conference to begin a co-ordinated plan of action.  I will be reporting all of this to the Council of the Faculty of Advocates, so that we can begin to play our full part, both within Scotland and elsewhere.