No bar to working together

It was a cold December day outside when 77 in-house lawyers and advocates gathered in the Faculty of Advocates’ Mackenzie Building for the always popular 14th annual 21st Century Bar Conference, jointly organised by the Faculty and the Society’s In-house Lawyers Group (ILG). Inside there was a lot of warmth, however, particularly during one of the sessions, as a panel of prominent in-house lawyers and advocates discussed how these two arms of the legal profession can best work together.

Panel chair Margaret Keyse, head of enforcement at the Scottish Information Commissioner and an ILG committee member, opened the session with introductions and a quick poll of the audience, which revealed that only a handful of the in-house lawyers present instructed counsel directly.

What do you need and want as in-house lawyers when you instruct counsel?

The chair’s first question to the panel’s in-house members revealed that Shona Bathgate, Scottish Government Legal Directorate, wanted counsel who had an interest in public law, could work well with her and understood her organisation and its relationship with the Scottish Government. Ros McInnes, principal solicitor, BBC Scotland and ILG committee member, said that when instructing counsel she wants an informed opinion on counsel’s areas of expertise, a second opinion to help her and her internal clients cover their backs, advocacy and the inside track on judicial opinion, depending on the situation.

What do advocates need from in-house lawyers?

The chair directed her second question to the two advocates on the panel: James Wolffe QC, Dean of the Faculty of Advocates, and Gerry Moynihan QC. The Dean said that he always wants to be able to add value to the work of the instructing lawyer and looks for material that allows him to do that, whether by providing advice or reassurance or advocacy skills. He confirmed that the Faculty takes excellence in advocacy very seriously and these skills are learned during the mandatory training needed to qualify as an advocate. In relation to instructions, the Dean said that he looks for “two stars and a wish”. The “two stars” are clarity and organised papers. The “wish” is an understanding of what really lies beneath the instruction, so he finds it best to meet face to face with the instructing lawyer and with the commercial client to get this context, which then informs what he does.

Moynihan said that if the instruction is for advice on a specialist topic then in-house lawyers need to go to the right specialist. Litigation is different – that is very much an advocate’s skill. As more of a generalist himself, he would ask the in-house lawyer to do the research on the specialist law which they know, such as media law if Ros McInnes was giving the instruction. If both the in-house lawyer and the advocate are specialists then a true partnership is needed. The important thing may well be getting an advocate who can speak to the judge.

What’s your advice on finding the right counsel?

On the third question the advice from the panel was to use law firms, websites, advocates’ clerks, internal clients and the media.

The Dean advised in-house lawyers not to be afraid of testing what is being offered, for example by asking questions of the clerk about the advocate’s expertise. Moynihan advised in-house lawyers to phone the clerks of a particular stable which covers the relevant specialism, to see who has the experience you need, to ask for CVs and find out detailed information about track records.

In relation to the eternally important topics of time and money, the Dean advised: “Don’t be afraid to have a serious conversation about time and costs”, adding that this included making it clear if time is of the essence. “Gone are the days when you have to wait three to four months for an opinion”, said Moynihan: “Advocates don’t say yes unless they can meet the timetable you prescribe. You can also ask in advance for a fee quote and this will be adhered to.” McInnes said that she almost never gives reasonable deadlines as she doesn’t receive them herself. Her advice was “Instruct early so you get the people you want”: for example she was currently instructing counsel about a TV programme which has not even been scripted yet.

What are the differences between the Scottish bar and the English Bar?

Size is the main difference between the two bars in Bathgate’s view (450 advocates compared with 10,000 barristers), and she typically needs far more assistance with finding her way around the English Bar. McInnes added that English and Scottish QCs can work well together.

Will the in-house/Faculty relationship change in the future?

Panel members felt that the relationship had markedly changed already. There is much more discussion about fees, more specialisation amongst more junior advocates, and more of a dialogue as email communication has made it easier for advocates to ask questions. “It is becoming a much more co-operative relationship”, said the Dean, adding that this two-way process helped counsel to be seen as increasingly accessible and flexible. Moynihan also felt that the nature of the work was changing: advocates are in court less and specialist stables were intended to accentuate that. However it was difficult for the Scottish bar to develop specialisation without instructions, so in-house lawyers need to be patient with them and let them build up the relevant specialism. He urged in-house lawyers to have confidence in advocates and not to be shy about sharing their expertise.

What is the bar’s view of advocates moving in-house then back to the bar to help build expertise?

This was an interesting question from the floor, to which the Dean responded that this was a perfectly possible career route. Moynihan thought that many people were now coming to the bar after being solicitors or solicitor advocates for a long time, when they decide they want to “get back to law”. He was also aware of some examples of in-house solicitors going to the bar.

Are in-house secondments for advocates an option?

Another interesting question from the floor revealed from Moynihan that this was happening already in England with more junior barristers, but perhaps the Scottish bar is either not at that scale or just has not yet had that opportunity. He suggested that in-house teams that were interested in this should discuss it with the clerks.

Are there any advantages left in instructing counsel through a law firm?

In response to this final question from the floor, the consensus on the panel was that there were still advantages in instructing through a law firm, particularly for smaller in-house teams who lack the time to administer litigation. McInnes explained that doing this lets her outsource to someone who knows the court rules and can provide a degree of detachment, of necessary independence from the case. The Dean felt that direct instruction works very well for advice, though of course advice can sometimes turn into litigation.

Closing the session, the chair asked the in-house lawyers in the audience if they were more confident in instructing the Scottish bar directly after the session, and the conclusion was yes. She thanked all of the contributors for a highly engaging, honest and informative insight into how in-house lawyers and advocates can work best together.