Rule C4.3: Order of Precedence, Instructions and Representation

Interpretation

4.3.1 In this rule 4.3, unless the context otherwise requires, terms listed in the first column of rule 4.3.1 shall have the meanings respectively ascribed to them in the second column of that rule:

Term

Definition

instructions

(a) where a regulated person has on behalf of a practice unit arranged with another practice unit for the representation of his client before a Superior Court by a solicitor advocate;

the agreement for representation between the two practice unit; or

(b) where a client has arranged on his own behalf with a practice unit his representation before a Superior Court by a solicitor advocate;

the agreement for representation between him and the practice unit   

solicitor advocate

as defined in Schedule 1 but including a registered European lawyer exercising rights of audience pursuant to regulation 6 or 11 of the European Lawyer Regulations provided that nothing in these rules shall confer on any registered European lawyer any entitlement to practise under the title of solicitor or advocate or any combination of same

 

4.3.2 In this rule 4.3 obligations and duties stated to be imposed on solicitor advocates shall not apply to an employed solicitor advocate whose contract of employment prevents him from acting for persons other than his employer.

Order of precedence of court

4.3.3 Where a solicitor advocate accepts instructions to appear in a Superior Court, those instructions shall:

(i) take precedence over any other professional obligation;

(ii) themselves be in the following order of precedence:

(a) where the solicitor advocate has rights of audience in the civil courts only:

Court of Justice of European Communities

European Court of Human Rights

Supreme Court/Judicial Committee of the Privy Council

Inner House of the Court of Session

Outer House of the Court of Session;

(b) where the solicitor advocate has rights of audience in the High Court of Justiciary only:

High Court of Justiciary exercising its appellate jurisdiction

High Court of Justiciary;

(c)  where the solicitor advocate has rights of audience in all courts:

Court of Justice of European Communities

European Court of Human Rights

Supreme Court/Judicial Committee of the Privy Council

High Court of Justiciary exercising its appellate jurisdiction

High Court of Justiciary

Inner House of the Court of Session

Outer House of the Court of Session.

Subject to the above order of precedence instructions shall take priority according to the date, or, if on the same date, the time when they are delivered, or, if orally transmitted, when they have been accepted by the solicitor advocate.

Priority of instructions

4.3.4 Notwithstanding the general rule stated in rule 4.3.3 the solicitor advocate shall have regard to the following considerations in determining which instructions are to be accepted:

(a) the seriousness, importance or value of the case;

(b) in the case of an appeal, that the solicitor advocate has appeared for the client in the lower court;

(c) in the case of an adjourned diet or continued hearing, that the solicitoradvocate appeared at the previous diet or hearing;

(d) in the case of a debate on the pleadings, that the solicitor advocate was responsible for drafting or revising the pleadings, particularly where a difficult or delicate point of law is involved to which the solicitor advocate has already devoted a substantial amount of time and research;

(e) in the case of a proof or trial, that the solicitor advocate was involved to a substantial extent in drafting the pleadings, debating the pleadings, consulting with the client or advising on the pre-trial or pre-proof preparations;

(f) that the client has, for the purposes of the case, come to rely on the advice and guidance of the solicitor advocate to an unusual extent;

(g) that because of the nature or circumstances of the case, or because of the limited time available, it would be unusually difficult for either counsel or another solicitor advocate adequately to prepare for appearance;

(h) that a suitable fee has been tendered with instructions or conversely that the instructions were given on the basis of an agreement with the client that no fee or only a modified fee will be paid.

If in doubt as to what his decision should be, the solicitor advocate should consult the Secretary.

Cancellation of instructions

4.3.5 Acceptance of instructions involves a professional commitment on which the client and the court are entitled to rely. A solicitor advocate is not entitled without good cause to cancel instructions once accepted so as to relieve himself of that professional commitment.

4.3.6 In considering whether, and if so when, to cancel instructions after having accepted them, a solicitor advocate should have in mind the following considerations:

(a) so long as instructions to do so have been accepted and not cancelled a solicitor advocate owes a duty to the client and the court to attend in court when the case is called;

(b) a solicitor advocate owes a duty to the client and the court to ensure, as far as he can, that the case is properly prepared and properly presented;

(c) a solicitor advocate owes a duty to the client and the court to remain in attendance until the trial or hearing has been completed;

(d) a solicitor advocate owes a duty to his fellow solicitor advocates to avoid placing them unnecessarily in a position where they have to take over his cases at short notice and face the client and the court without adequate time for preparation.

It may also be appropriate to take into account the considerations mentioned in rule 4.3.4.

4.3.7 Where a solicitor advocate has been instructed by a regulated person and has:

(a) an actual clash of commitments he shall, subject to rule 4.3.10, without delay intimate the cancellation of the instructionswith which he cannot comply and return the relevant papers; or

(b) a foreseeable clash of commitments he shall, subject to rule 4.3.10, immediately inform the instructing regulated person of the situation and comply with any subsequent instructions as to alternative arrangements in the event of his being unable to appear.

4.3.8 Where a solicitor advocate has been instructed directly by a client and has:

(a) an actual clash of commitments; or

(b) a foreseeable clash of commitments;

he shall, subject to rule 4.3.10, immediately inform the client of the situation, and comply with any subsequent instructions as to alternative arrangements in the event of his being unable to appear.

4.3.9 In the case of proceedings before the High Court of Justiciary on appeal, there is a particular obligation on the solicitor advocate who represented the appellant at the trial and has recommended an appeal to present that appeal.

Securing representation

4.3.10 Where a solicitor advocate is unable, in a difficult or urgent situation, to secure representation for a person wishing to be represented by a solicitor advocate before any court he shall inform the Secretary of the situation.

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