Guidance related to Rule B8.4.1: Instruction of Advocates and Solicitor Advocates in the Superior Courts

This guidance is designed as a reminder of the interlocking framework of rules that apply when advising a client on the choice of representation where appearance is required in the superior courts.  Rules B1.4.1, B1.4.2, B8.4.1, B1.9.2 and B1.9.1 provide this framework.

Rule B8.4.1 states that where, in the course of advising a client, you identify a situation which may require appearance in a Superior Court in circumstances where such appearance is restricted to a solicitor advocate or an advocate, you shall advise your client:

a)    that appearance is so restricted;

b)    that the decision whether a solicitor advocate or an advocate should be instructed is entirely that of the client.

This rule should not be read in isolation but in conjunction with the rules on Standards of Conduct at B1.

Rules B1.9.2 and B1.9.1 make clear that the onus lies with you to ensure that you have given your client sufficient advice and information to allow the client to make an informed choice. In combination with rule B8.4.1 detailed above, this means that, when advising the client on choice of representation in the superior courts, you must:

  1. Provide any relevant information which you have  and which is reasonably necessary to allow an informed decision to be made by the client; and
     
  2. Explain matters to the extent reasonably necessary to allow an informed decision to be made by the client.

Rule B1.4.1 requires that you  act in the best interests of your clients; rule B1.4.2 provides that you must not permit your own personal interests or those of the legal profession in general to influence your advice to or actings on behalf of clients. These rules obviously apply when you are providing advice on representation. You should ensure that a solicitor advocate or advocate of appropriate skill, specialisation and experience relevant to the matter concerned is instructed.

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