Dean states counsel can go solo
23 August 2013
A long-standing professional practice will be modified at the beginning of the new legal year next month.
Under a ruling from Richard Keen, QC, Dean of the Faculty of Advocates, counsel will no longer require to have an instructing solicitor sitting behind them whenever they appear in civil courts or tribunals.
The change has been sanctioned by the head of Scotland's judiciary, Lord Gill, the Lord President, and will come into effect on 24 September. It does not apply to criminal cases.
Mr Keen said: "At present, an advocate may not appear in court unless an agent of the client, normally the client's solicitor, is also present to instruct the advocate. This rule developed long before modern means of communication, and proceeds on the view that the client's solicitor should always be present in case any issue should arise which required immediate instructions.
"I am satisfied that an absolute rule requiring the presence of a solicitor in all cases is no longer justified. There will be hearings which an advocate can conduct without the solicitor being present in court, provided the solicitor has given adequate instructions in advance to the advocate."
The ruling states that counsel can, if it is felt necessary, insist on the attendance of the agent, and should withdraw from acting if the agent declines.
Mr Keen added: "The change in the rule will permit a solicitor, who wishes to do so, to instruct an advocate to appear in court without the solicitor or an employee of the solicitor having to be present during the hearing. This will be appropriate only if the advocate has been fully and adequately instructed in advance.
"There will, in any event, continue to be hearings where the presence of the solicitor or a member of the solicitor's staff will be necessary, for sound practical reasons, or because the nature of the issues to be dealt with make that appropriate."
The ruling does not alter or affect the rules on who may instruct counsel for court or tribunal proceedings, or the position of counsel with respect to the precognition of witnesses.
The ruling in full:
APPEARANCE OF COUNSEL WITHOUT AN AGENT
1. In civil proceedings before any court or tribunal, no rule of professional practice shall prevent Counsel, who has been properly instructed, from appearing at any hearing without the attendance of an instructing agent.
2. This ruling does not alter or affect the rules on the instruction of Counsel.
3. This ruling does not alter or affect the position of Counsel with respect to the precognition of witnesses.
4. Counsel may insist on the attendance of the instructing agent at any hearing if: (i) Counsel does not consider that he is otherwise properly instructed for the hearing; or (ii) the presence of the instructing agent is, in Counsel's opinion, necessary for the proper conduct of the hearing. If the agent declines to attend in such circumstances, Counsel should withdraw from acting.
5. If an instructing agent proposes that Counsel should appear without the instructing agent being present, it is the responsibility of the instructing agent to provide Counsel with instructions such that, in the opinion of Counsel, the hearing may properly be conducted without the agent being present. In the absence of such instructions, Counsel may decline to appear without the instructing agent being present.
6. In this ruling, the terms "agent" and "instructing agent" refer to a solicitor or any other agent having the right to conduct litigation in the court or tribunal in question.
Solicitors who wish to discuss how Axiom can assist in light of this ruling are invited to contact the Practice Manager in the usual manner.
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