Solicitors (Scotland) Rules of Conduct for Solicitor Advocates 2002
The Council of the Law Society of Scotland in exercise of the powers conferred on it by section 25A(4) of the Solicitors (Scotland) Act 1980, hereby makes the following Rules:
Citation and coming into effect
1. Title and Commencement
(1) These Rules may be cited as the Solicitors (Scotland) Rules of Conduct for Solicitor Advocates 2002 and shall come into force on 1st March 2003 having been approved by the Lord President and Scottish Ministers in accordance with section 25A of the Solicitors (Scotland) Act 1980.
(2) The Code of Conduct (Scotland) Rules 1992 are revoked with effect from the date of commencement of these Rules.
2. Interpretation
(1) In these Rules, unless the context otherwise requires:
‘‘a solicitor’’ means a solicitor enrolled with the Society and who holds
a full practising certificate;
‘‘a solicitor advocate’’ means a solicitor who has been granted Rights of
Audience.
‘‘Court’’ means the Court of Session, the House of Lords, the Judicial
Committee of the Privy Council and the High Court of Justiciary;
‘‘Rights of Audience’’ means a right of audience in the Court of
Session, the House of Lords and the Judicial Committee of the
Privy Councilor, as the case may be, the High Court of Justiciary
and the Judicial Committee of the Privy Council;
‘‘rules of conduct’’ means the Rules of Conduct for Solicitors exercising
Rights of Audience set out in the Schedule to these Rules;
‘‘the Council’’ means the Council of the Society;
‘‘the Secretary’’ means the Secretary of the Society and includes any
person authorised by the Council to act on behalf of the Secretary
for the purposes of these Rules;
‘‘the Society’’ means the Law Society of Scotland;
(2) The provisions of the Interpretation Act 1978 shall apply to these Rules as they apply to an Act of Parliament.
3. A solicitor advocate shall observe and comply with the rules of conduct when exercising Rights of Audience.
4. Where a solicitor advocate is in any doubt as to the propriety of any course of conduct he should:
(a) seek the advice of the Secretary;
(b) explain the position to the Secretary including anything which may be relevant to the advice sought.
5. The Council may, at its discretion, waive compliance with any of these Rules.
6. Breach of any of these Rules may be treated as professional misconduct for the purposes of Part IV of the Solicitors (Scotland) Act 1980 (Complaints and Disciplinary Proceedings).
SCHEDULE
Rules of Conduct for Solicitors exercising Rights of Audience
1. The acceptance of instructions by a solicitor advocate
(1) A solicitor advocate accepts that it is the responsibility of the Council of the Society to make rules to secure, through the Secretary whom failing Rules of Conduct for Solicitor Advocates 2002 F 349 such of its officers as it thinks appropriate, that, where reasonably practicable, any person wishing to be represented before a court by a
solicitor advocate is so represented.
(2) A solicitor advocate shall not accept instructions as a solicitor advocate (as opposed to a solicitor) without satisfying himself that it is proper for him to accept them. A solicitor advocate shall be entitled at all stages of the case at his sole discretion to decide whether he requires the assistance of a solicitor or other representative of his firm or of the instructing firm in connection with the preparation of the case and also at consultations with the client and at the presentation of the case in court.
(3) There are circumstances in which a solicitor advocate is entitled and indeed bound to refuse instructions.
(4) A solicitor advocate may not allow his personal interests to affect the performance of his professional duty. Accordingly, he should not accept instructions to act in his professional capacity in circumstances where he has a direct personal interest in the outcome. Where he has, or may have, an indirect personal interest in the outcome (e.g. where he is asked to act for a company in which he is a major shareholder or for an organisation in which he holds office although unremunerated), he should consult the Secretary before accepting instructions. Where a conflict of personal interest arises later, he should inform the instructing solicitor or client and cancel instructions.
(5) A solicitor advocate may not accept instructions on any basis which would deprive him of the responsibility for the conduct of the case or fetter his discretion to act in consultation with the client in accordance with his professional judgment and public duty.
(6) A solicitor advocate must not accept instructions to act in circumstances where, in his professional opinion, the case is unstatable in law or where the case is only statable if facts known to him are misrepresented to, or concealed from, the court. If such circumstances arise after he has accepted instructions, he should decline to act further. There may, however, be exceptional circumstances in which it is proper for a solicitor advocate, in order to assist the court, to present a case which he believes to be unstatable in law. In such circumstances, the solicitor advocate must explain to the client that he cannot do more than explain the client’s position to the court, and that he will be bound to draw the court’s attention to such statutory provisions or binding precedents as have led him to the conclusion that the case is unstatable.
2.Duty in relation to other members of the legal profession
(1) A solicitor advocate has a duty of loyalty to professional colleagues.
(2) The efficient conduct of litigation under the adversarial system depends on mutual trust between those acting for different parties. Discussion and negotiation between professional colleagues may achieve settlement of a case or at least dispose of incidental points which would otherwise take up time and cause unnecessary expense. It is therefore
essential that counsel and solicitor advocates should be able to discuss cases with each other on the basis that confidence will be respected and that agreements and undertakings will be honoured.
(3) It must, however, also be remembered that all have a duty to act in the best interests of the respective clients. Solicitor advocates cannot assume that everything said to opposing professional colleagues will be treated in confidence and not disclosed to the solicitor advocate or the client. It is therefore desirable, at the outset of such discussions that the basis of the discussion be clarified. If it is intended to disclose information on a basis of confidence, this should be stated. Correspondingly, if one party to the discussion is not prepared to treat information as confidential he should say so before the information is disclosed. Solicitors: Practice Rules and Guidelines F 350
(4) There an agreement is reached following such discussions or an undertaking is given by counsel or solicitor advocate to another it is binding in honour between them and should be reported as soon as possible so that it can, if necessary, be incorporated in a formal exchange of letters. Alternatively, a joint minute should be drafted and initialled by counsel or solicitor advocate who should also bear in mind that once recorded in writing the written agreement supersedes the verbal agreement.
3.Duties in relation to an instructing solicitor
(1) A solicitor advocate when instructed by a solicitor must respect the fact that the solicitor’s relationship is different from, and likely to be more continuing than, his own. He should do nothing, beyond what his professional duty requires, to upset the solicitor-client relationship or destroy the trust which the client has in the solicitor.
(2) When a solicitor advocate has reason to believe that a solicitor has been guilty of professional misconduct (as opposed to professional negligence) he has a duty to the client, the court and the profession to take appropriate action. If the matter comes to his knowledge in the course of proceedings in court, it may be necessary to take immediate action, and if an adjournment is necessary for this purpose, it should be asked for. If the matter does not call for immediate action, the solicitor advocate should consult the Secretary before making any formal complaint or report.
(3) If a solicitor advocate feels compelled to criticise the conduct of a solicitor in respect of something falling short of professional misconduct, he should avoid doing so in the presence of the client and should in any event ask the solicitor to explain what he has done and why before criticising his conduct.
(4) A solicitor advocate where instructed by a solicitor or directly by a client should consider carefully whether he should attend a consultation without his instructing solicitor or another representative of his firm or of the instructing firm being present. The presence of the solicitor or representative will protect both the solicitor-advocate and the solicitor should a dispute arise later as to what advice the solicitor-advocate gave or what instructions he was given by the client.
(5) In exceptional circumstances, it may be unavoidable that a solicitor advocate instructed by a solicitor has to speak to the client without the solicitor being present. Such an occasion will however be rare, and when it arises the solicitor should be told as soon as possible what transpired.
4.Duties in relation to the client
(1) Confidentiality. It is a fundamental duty of the solicitor advocate not to disclose or use any information communicated to him in his professional capacity other than for the purpose for which it was communicated to him, so long as it remains in confidence and has not otherwise been made public. Any conversations relating to a ’Case which take place between a solicitor advocate and those representing the other side, including Crown counsel, are confidential and should not be revealed to anyone other than the client or those who are professionally concerned with the case. If he wishes to discuss a case with a colleague, for example, for the purpose of seeking his advice about law, he should do so only in terms which do not disclose, or risk disclosure of, the identity of the client or other parties involved. This applies equally where a solicitor advocate is asked to give a written opinion or to advise in consultation. There may be good reasons, unknown to him, why the client or instructing solicitor would not even wish it to be known that his advice has been sought. Idle gossip about cases and clients, even if the facts are publicly known, is damaging to the reputation of the solicitor advocate and the profession.
Rules of Conduct for Solicitor Advocates 2002 F 351
(2) Duty to uphold the interests of the client. A solicitor advocate should remember that the client relies on him to exercise his professional skill and judgment in the client’s best interests. He must at all times do, and be seen to do, his best for the client and he must be fearless in defending his client’s interests, regardless of the consequences to himself (including, if necessary, incurring the displeasure of the bench). But he must also remember that his client’s best interests require him to give honest advice however unwelcome that advice may be to the client and that duty to the client is only one of
several duties which he must strive to reconcile.
(3) Conflict between client and instructing solicitor (e.g. where the client may have a claim for professional negligence against his solicitor). Where it appears to a solicitor advocate who is instructed by a solicitor that a conflict of interest has arisen or may arise between the client and the instructing solicitor, it is his duty to take steps to ensure that the client is so advised in order that he can get the advice of another solicitor. It will depend on the circumstances how this can be done. The great majority of instructing solicitors can be relied upon, when the conflict has been pointed out, to take the necessary steps themselves. It will therefore normally be inappropriate to mention the matter in the presence of the client. But it may be necessary to record the solicitor advocate’s advice as to the existence of a conflict in a formal note and to ask the instructing solicitor to send it to the client, or to deal with the matter at consultation with the client. In extreme cases, it may be the duty of the solicitor advocate to refuse to act further on the instructions of the solicitor concerned, but before doing so he should where practicable intimate in writing to the instructing solicitor that it is his intention to refuse to act further.
(4) Cancellation of instructions. In any case where the solicitor-advocate feels obliged to cancel instructions, he must do so without delay and take such steps as are necessary to ensure that the client, and where appropriate the instructing solicitor, knows why he has withdrawn. Where he feels obliged to cancel in the course of a trial or other hearing, he must formally intimate to the court that he has cancelled instructions and is withdrawing
from acting and must protect the interests of the client by moving for an adjournment so that the client can get other advice. He is under no obligation to explain in detail to the court or tribunal his reasons for cancellation, since to do so may prejudice his client, and he should not yield to pressure to do so. If in doubt as to whether he is entitled or bound to cancel he should seek the advice of the Secretary, and if necessary obtain an adjournment to do so.
5.Special duties in criminal cases
(1) Pleas. Where the Crown offers to accept a reduced or restricted plea, the defending solicitor advocate has a duty to advise the accused of that offer and to obtain his instructions about it. Likewise, where any limited offer to plead is made by an accused, it should (if considered in law to be appropriate) be conveyed to the Crown for consideration, without delay. For avoidance of doubt, it is prudent to obtain written instructions from the accused, for the tendering of a plea. In no circumstances should the solicitor advocate tender any plea on behalf of the accused unless instructions to do so have been obtained.
(2) In advising as to the possible consequences of a plea of guilty, a solicitor advocate should refrain from making any positive forecast of the possible sentence beyond drawing the attention of the accused to the normally anticipated range of sentences in the circumstances of that particular case.
(3) Confessions. Where an accused person makes a confession to a solicitor advocate and the solicitor advocate is satisfied in law that such confession amounts to guilt, the solicitor advocate must explain to the accused (if he is not pleading guilty) that the conduct of his defence will be Solicitors: Practice Rules and Guidelines F 352 limited by that confession. It must be emphasised to the accused that no substantive defence involving an assertion or a suggestion of innocence will be put forward on his behalf and that, if he is not satisfied with this, he should seek other advice. A solicitor advocate should consider whether it is advisable to obtain confirmation in writing from the accused that he has been so advised and that he accepts such an approach to the conduct of his defence.
(4) So long as an accused maintains his innocence, the solicitor advocate’s duty lies in advising him on the law appropriate to his case and the conduct thereof. The solicitor advocate may not put pressure on him to tender a plea of guilty, whether to a restricted charge or not, so long as he maintains his innocence. Nor should the solicitor advocate accept instructions to tender a plea in mitigation on a basis inconsistent with the plea of guilty. The solicitor advocate should always consider very carefully whether it is proper, in the interests of justice, to accept instructions to tender a plea of guilty. He should ensure that the accused is fully aware of the consequences and should insist that the instructions to plead guilty are recorded in writing.
(5) Acting for co-accused. Save in the most exceptional circumstances, a solicitor advocate should not accept instructions to act for more than one accused or appellant.
6.The duty to the court
(1) Duties in relation to matters of law. Where a solicitor advocate is aware of a previous decision binding on the court, or of a statutory provision relevant to a point of law in issue, it is his duty to draw that decision or provision to the attention of the court whether or not it supports his argument and whether or not it has been referred to by his opponent.
(2) Where there is no contradictor, a solicitor advocate should inform the court of authorities relevant to that case, even when such authority may be against his interest.
(3) In proceedings before the House of Lords, a solicitor advocate should have in mind the observations of Lord Chancellor Birkenhead in Glebe Sugar Refining Co v Greenock Harbour Trustees 1921 SC (HL) 72,73-74.
7.Duties in relation to matters of fact
(1) In relation to matters of fact, a solicitor advocate should have two principles in mind:
(a) It is for the court, not for a solicitor advocate, to assess the credibility of witnesses; and
(b) a solicitor advocate must not, directly or indirectly, deceive or mislead the court.
(2) In court. When conducting a case in court, a solicitor advocate should base his questions upon his instructions, the precognitions and the productions supplemented by information obtained at consultation and, after evidence has been led, upon the evidence.
(3) A solicitor advocate should not state his personal opinion on matters of fact. It is particularly important to observe this rule when addressing a jury. A solicitor advocate must not make observations on matters of fact which are not based on, or justified by, the evidence. In a criminal trial, he should not under any circumstances express either directly or indirectly a personal belief in the innocence of the accused.
(4) A solicitor advocate may not be a party to the giving of evidence which he knows to be perjured evidence, or to any other course that would enable a case to be put forward on behalf of a client which the client has informed him is unfounded in fact.
(5) A solicitor advocate may not put to a witness any question suggesting that the witness has been guilty of a crime, fraud or other illegal or improper conduct unless he has personally satisfied himself that there is evidence which could, if necessary, be led in support of the suggestion. Rules of Conduct for Solicitor Advocates 2002 F 353
(6) Interviewing witnesses. There is no general rule that a solicitor advocate may not discuss the case with a potential witness, but a solicitor advocate when instructed by a solicitor, is entitled to insist that he accepts instructions on the basis that he, the solicitor advocate, will not do so.
(7) In cases where a solicitor advocate has not accepted instructions on such a basis he must avoid doing or saying anything which could have the effect of, or could be construed as, inducing the client or skilled witness to ‘‘tailor’’ his evidence to suit the case.
(8) Once a proof or trial has begun, a solicitor advocate must not interview any potential witness in relation to what has been said in court in the absence of that witness.
(9) Some cases cannot be properly prepared or conducted if the foregoing rules against interviewing potential witnesses are followed strictly according to the letter. The client may be accompanied at consultation by a relative or friend who is also a potential witness. Where the client is a corporate persona, those who can speak for the corporation may also be potential witnesses, although in that case it is usually better to discuss the case with someone who is not personally involved and can take a more objective view of it. Some witnesses may be witnesses to fact as to part of their evidence and expert witnesses giving opinion evidence as to another part. It may be essential in a case raising technical issues to discuss points arising from the evidence with a skilled witness who has not yet given evidence. In such cases, a solicitor advocate must use his discretion. But he should always act according to the spirit of the rule—namely, that a solicitor advocate should not under any circumstances do or say anything which might suggest to the witness that he should give evidence otherwise than in accordance with his honest recollection or opinion.
(10) A solicitor advocate may not, except with the consent of his opponent and of the court, communicate with any witness, including his client, once that witness has begun to give evidence until that evidence is concluded.
(11) As to interviewing the client or witnesses in the absence of an instructing solicitor, see paragraphs 3(4) and 3(5) above.
(12) Confessions to a solicitor advocate by accused persons. It follows from the rules stated in paragraphs 5(3) and 5(4) that, where an accused person has admitted that he committed the act with which he is charged (whether or not the admission is an explicit admission of guilt in law), a solicitor advocate may not conduct the defence on a basis inconsistent with that admission. Thus, he may not put to a witness any question suggesting, or tending to suggest, that the accused did not commit the act. A fortiori, he
may not seek to set up a special defence of alibi or incrimination.
(13) Subject to the rule stated in the previous paragraph, a solicitor advocate may
(a) take any proper objection to the jurisdiction of the court, to the competency or relevancy of the indictment, or to the admissibility of evidence;
(b) test the evidence for the prosecution by cross-examination;
(c) cross-examine or lead evidence in support of a special defence of insanity or (depending on the tenor of the accused’s admission) self-defense;
(d) cross-examine or lead evidence for the purpose of explaining the actings of the accused or supporting a plea in mitigation;
(e) make submissions as to the sufficiency in law of the evidence to support a verdict of guilty.
(14) Ex parte statements of fact by a solicitor advocate at the bar. The court frequently must rely on statements as to matters of fact made at the bar, for example, in the Motion Roll and certain types of Petition procedure. Such statements are made on the responsibility of the solicitor advocate as an officer of the court and a solicitor advocate must therefore be scrupulously Solicitors: Practice Rules and Guidelines F 354 careful that anything stated as fact is justified by the information in his possession. If the court asks a question which a solicitor advocate cannot answer on the information in his possession, he must say that he cannot answer it and, if necessary, ask leave to take instructions on the matter. This rule applies whether or not the opposing party is represented in court.
(15) Pleadings. A solicitor advocate must have a proper basis on precognition or in the light of consultation with the client for stating a fact in any pleadings.
8.The duty of courtesy
(1) Discourtesy is as offensive in court as it is outside, and is detrimental to the reputation of a solicitor advocate and of the bench, to the interests of the client and to public confidence in the administration of justice.
(2) In the examination of witnesses, and particularly in the cross-examination of hostile witnesses, a solicitor advocate must remember that the law places him in a privileged position which he should not abuse, for example, by bullying or insulting behaviour or by making offensive or personal remarks.
(3) A solicitor advocate should seek to uphold a relationship of mutual trust and courtesy with the bench.
(4) A failure to appear in court on time should always, as a matter of courtesy, be the subject of an apology. If the court is still sitting, and has not yet passed on to other business, the proper time to make the apology is at once on arrival in court. The apology should always be in open court to the bench. It is not sufficient to offer an apology through the Macer or Clerk of Court.
9.The duty to attend court
(1) It is the duty of the solicitor advocate to arrange his affairs so as to avoid a reasonably foreseeable clash of commitments.
(2) Having accepted instructions to appear, it is the solicitor advocate’s responsibility to ensure, unless (in a civil case only) other arrangements have been made with an instructing solicitor, that he is present in court on the day and at the time appointed and thereafter until the trial or hearing is concluded. Where unforeseen circumstances make it impossible for him to be present and he is unable to contact the Secretary, he must ensure that someone else is present at or before the time appointed to explain his absence and, if necessary, to move for an adjournment.
(3) Since instructions to appear in the High Court of Justiciary and the Inner House take precedence over instructions to appear in the Outer House, it follows that if a solicitor advocate has accepted instructions to appear in the High Court or the Inner House, including instructions for the Single Bills, it is his duty to ensure that he is present there at the appointed time, even though he also has instructions to appear in the Outer House. If a clash of commitments appears likely, and he is unable to contact the Secretary, he should ensure that someone else is present to appear in the Outer House in his place and, if necessary, to move for an adjournment until he is free to appear there. If a conflict arises due to unforeseen circumstances and he finds himself still detained in the Outer House when he must appear in the High Court or the Inner House, he should inform the Lord Ordinary that he requires to go to the High Court or the Inner House as the case may be and ask for an adjournment so that he can do so.
(4) If a solicitor advocate engaged in a proof or other hearing in the Outer House expects to be in difficulty because he is required to attend elsewhere in the Outer House to deal with an important matter on the Motion Roll on the same day, he or a representative from his firm should inform the Clerk of Court as soon as possible so that the judge concerned may be alerted to the problem and take such action as is appropriate. It has been accepted that Rules of Conduct for Solicitor Advocates 2002 F 355 in such circumstances the start of the proof might reasonably be delayed until the solicitor advocate’s business in the other court has been completed.
(5) Where a senior solicitor advocate appears with a junior solicitor advocate he should only be absent from court if he is satisfied that his junior will be present and will be able to deal properly with any matter which may arise.
10. Responsibility y for pleadings and presentation in civil actions
(1) A solicitor advocate who signs any pleadings accepts personal responsibility to the court for their contents. He has a professional responsibility for any other pleadings drafted by him, except where his draft has been altered without his knowledge and consent. Where a solicitor advocate funds that pleadings drafted by him have been altered without his knowledge and consent, it is his professional duty to consider whether he can support the case on the basis of the pleadings so altered.
(2) Since a solicitor advocate accepts responsibility for pleadings or documents he has signed, he should not sign in his own name pleadings drafted by someone else save in exceptional circumstances. Papers may be signed in that way provided the solicitor advocate concerned is satisfied that the solicitor advocate for whom he signs cannot reasonably be found and he is also satisfied that the paper is in proper form for submission to the court.
(3) The presentation of a case in court is a matter for the sole professional responsibility and discretion of the solicitor advocate.
11.Speculative actions
In speculative actions, a solicitor advocate has a particular responsibility to the court both with regard to his own assessment of the merits of the case and with regard to the advice which he gives. The nature of the responsibility undertaken by counsel and solicitor was stated thus by Lord President Normand (X Insurance Co v A & B 1936 SC 225, 239):
‘‘It has long been recognised by the Courts that this is a perfectly legitimate basis on which to carryon litigation and a reasonable indulgence to people who while they are not quailed for admission to [Legal Aid] are nevertheless unable to finance a costly litigation.
But it is equally recognised that there is involved in such business a grave risk of abuse unless it is carried out with strict regard to honour by all who are professionally concerned in it. Before acting in business of this kind it is the imperative duty of the solicitor and of the counsel to consider whether the party for whom they are to act has a reasonable prospect of success.
The reasons for this are obvious, and need no discussion. If a solicitor, when asked to conduct the case on a speculative footing, is, after consideration, unable to advise that there is a reasonable prospect of success, he should refuse to conduct the case. But, if he has reasonable doubts about the prospects of success, he is justified in consulting counsel. If counsel advises that the action may properly be raised, the solicitor is entitled to follow his advice, and in the future conduct of the action he is bound to act in accordance with counsel’s instructions. If he does this after having fairly disclosed to counsel all the information at his disposal, he will not be exposed to a charge of professional misconduct. In order that the prospects of success may be fairly estimated by the solicitor and by counsel in their turn, it is in most cases, where questions of fact are involved, a necessary precaution that fair and honest precognitions of the chief witnesses who will be relied on should be taken at the outset.’’ (See also the opinion of Lord Fleming at 250–251.) Solicitors: Practice Rules and Guidelines F 356
12.Criminal appeals
(1) In advising on criminal appeals, a solicitor advocate has a duty, first, to consider whether there are grounds for an appeal which he is prepared to state to the court and, second, if in his opinion there are none, to refuse to act further in the case: Scott v HM Advocate 1946 JC 68 per Lord President Normand at 69.
(2) Having advised that an appeal is statable, a solicitor advocate may later come to the view that it is not. If so, he must promptly inform his client that he can no longer act in the case.
13.Opposing a party litigant
Where a solicitor advocate appears against a party litigant, he must avoid taking unfair advantage of the party litigant and must, consistently with his duty to the client, co-operate with the court in enabling the party litigant’s case to be fairly stated and justice to be done. But he must not sacrifice the interests of the client to those of the party litigant. Rules of Conduct for Solicitor Advocates 2002 F 357
