Many roles, one team

The Professional Practice Department is one of the smallest departments of the Society. There are four people in the department: the Director Bruce Ritchie and his Deputy Linsey Lewin who are both solicitors, supported by Lisa Hamilton and Sharon McFarlane. The core function of the department is to provide solicitors with advice and guidance on ethics and professional practice matters with particular regard to the application of the Society’s rules and guidelines to individual circumstances. The Council’s Professional Practice Committee consists of about 15 members of Council – mostly from private practice – and considers matters of policy in relation to the practice rules and guidelines. From time to time the Committee publishes guidelines to assist solicitors in interpreting the various rules. The purpose of these guidelines is to provide assistance to solicitors in applying the rules to certain practical situations. Needless to say the Committee work is only the tip of the iceberg as the department receives a very large number of enquiries from the profession, dealing with well over 1,000 telephone calls each month as well as hundreds of written enquiries. In addition Bruce gives regular talks to the profession at seminars organised by Update and by local faculties.

Some of the specific matters on which the department can give guidance are: conflict of interest – including requests for waivers from the specific provisions of the practice rules; confidentiality and privilege; advertising and other promotional activities; and moving to a new firm or starting up a new practice. The Society cannot instruct a solicitor on a matter of professional practice or ethics – e.g. it cannot require a solicitor to cease acting for a client; but it can give an objective view on the situation to assist solicitors in coming to their own decision. Sometimes that advice will be fairly firm, for example that a particular course of action would be in breach of the practice rules or contrary to the Code of Conduct. Many solicitors prefer to be able to say to clients that the Society’s rules prohibit them from doing something so that it is not the solicitor personally refusing to accept instructions.

In most instances solicitors already have a good idea of what the answer to a particular enquiry will be and are seeking reassurance, which the Department is happy to give. Some enquiries however do betray a lack of knowledge or understanding which can be worrying. To quote from a letter received in recent months from a firm which had better be nameless: “We need to establish that there is a Law Society rule that a solicitor should not act for both parties except in special circumstances. I should know the rules and regulations but if possible could you refer me to this rule.” As the conflict of interest rules date back to 1986 – nearly 18 years ago – the need to make such an enquiry in 2004 seems remarkable.

One important point to remember when seeking guidance is to keep a proper note on the file so it can be referred to at a later date if the matter becomes the subject of a complaint or claim. If you are seeking advice from the department please give the whole story as the staff can only advise on the information given to them. It is not uncommon to give advice to one solicitor on a matter and then receive a call from the solicitor on the other side with some different relevant information. If you wish a Law Society letter on the file confirming the position, write or email following up the telephone enquiry and a confirmatory reply will be sent.  

Practice rules

Section 34 of the Solicitors (Scotland) 1980 gives power to the Council to make practice rules. Before such rules can be made, draft rules require to be circulated to all the members of the Society and submitted to a general meeting. The Council must take into consideration any resolution passed at that meeting although it is not bound by it unless it is passed at two successive general meetings. After the members have been consulted and the Council has made the rules they then require to be submitted to the Lord President for approval before formally coming into force. The Professional Practice Committee does not have any power to make practice rules, although it does recommend rules to Council from time to time either in relation to new matters or to update existing rules in the light of changed circumstances. As well as practice rules the Council published a Code of Conduct for Scottish Solicitors in 1989, based upon the code of conduct adopted by the European bars. The code contains a statement of the basic values and principles which form the foundation of the solicitor profession. It is not a list of detailed practice rules but may be referred to for guidance in assessing whether or not a solicitor’s conduct meets the standard required by a member of the profession. In addition a separate Code for Criminal Court Work was published in 1996. Both the codes, together with all the practice rules and guidelines, are published in the Parliament House Book, section F (in volume III). The codes together with commonly used rules and all the guidelines are also published on the Society’s website www.lawscot.org.uk.

Professional remuneration

The department also services a number of other committees, including the Remuneration Committee. That Committee supervises the annual cost of time survey which is carried out between April and July by an independent actuary, John Pollock. The figures brought out in the survey lead directly to the annual review of the value of the unit and also provide the evidence which the Society needs to make submissions to the Lord President on the level of fees in the court tables. Gratifyingly, the number of firms taking part in the survey has increased in recent years, but more participants are always welcome. The Committee urge you to complete the questionnaire when it is circulated in April. There is a prize draw, and two hours’ management CPD is allowed for the partner completing the form.

Civil procedure

Another committee served by the Professional Practice Department is the Civil Procedure Committee, which until recently was known as the Judicial Procedure Committee. It responds to proposed changes in court rules and also lobbies for other changes in the civil justice system, such as a Judicial Appointments Board – which the Society first proposed in 1989. The Committee also lobbied for exemption from court dues for people on benefit or in receipt of legal aid from 1995 and were pleased to see that reform brought in two years ago. The Committee has also had discussions with the Justice Department about increasing small claim and summary cause limits and was involved in the response to the recent consultation on a new Supreme Court.

Solicitor advocates

Bruce Ritchie and Lisa Hamilton also deal with applications for rights of audience in the High Court and the Court of Session. Following the change in the rules in 2003, it is pleasing that a record number of candidates are taking part in the qualification process this year. Further information can be obtained from Lisa (lisahamilton@lawscot.org.uk – or tel 0131 476 8164). There are currently 156 solicitor advocates practising, of whom two have rights of audience in both the High Court and the Court of Session, 90 have rights of audience in the High Court only, and 64 in the Court of Session only. It is hoped that these numbers will be increased significantly after this year’s training courses.

Specialisation

Linsey Lewin and Sharon McFarlane deal with applications for accreditation as a specialist in the various areas where the Society has accreditation panels. Linsey also services the Specialisation Committee which will be happy to consider suggestions for new specialisms. The range of specialisms is featured on the Society’s website and solicitors who wish further information about applying for accreditation should contact Sharon (sharonmcfarlane@lawscot.org – or tel 0131 476 8151). To date a total of 319 solicitors have been accredited as specialists in the various areas.

Other committees and services

Other matters dealt with by the department include the Conveyancing Committee (see the convener’s article in last month’s issue at page 54); mediation (for information about applying for accreditation as a mediator contact Sharon McFarlane); requests to the President to appoint an arbiter; and the Society’s Constitution Committee.

As can be seen the department deals with a broad range of matters. Although small, it is a very significant part of the Society’s service to its members. The staff in the department are able and enthusiastic and will be happy to deal with your enquiry, however simple it may be, so do not feel any need to apologise for seeking advice.

Bruce Ritchie’s direct dial is 0131 476 8124 and Linsey Lewin 0131 476 8174, or email bruceritchie@lawscot.org.uk or linseylewin@lawscot.org.uk.