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Solicitor Advocates Rules of Conduct 2002 (Revised)

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Solicitor Advocates Rules of Conduct 2002 (Revised) SOLICITOR ADVOCATES RULES OF CONDUCT 2002 (REVISED) GENERAL NOTES: 1. This document is a copy of the SOLICITORS (SCOTLAND) RULES OF CONDUCT FOR SOLICITIOR ADVOCATES 2002 showing changes made to incorporate same into the draft consolidated Practice Rules. 2. Deletions are shown in red and underlined, additions are shown in blue albertus font. 3. The title, preamble, citation and commencement and interpretation clauses, any rule entitled “Professional Practice” (which generally states that breach of the rules may be treated as professional misconduct) and any rule in relation to the Council’s power to waive compliance (if applicable) have all been deleted as unnecessary as they are covered in the first section of the draft consolidated rules and relative Schedules. Where a particular set of rules uses defined terms which are not in general use throughout the consolidated rules (or applies a special meaning to terms which are so used) then the interpretation/definitions clause particular to that set has been preserved so far as necessary. 4. The rules have been reformulated to use the second person “you” rather than the third person “solicitors”. This is to fit the application clause in the first section of the draft consolidated rules. Persons and entities addressed by the term “you” vary depending on the applicability of the particular rule as set out in the first section. 5. References to “solicitor(s)” not covered by note 4 above have been changed to references to “regulated person(s)”. This term is defined in Schedule 1 to the draft consolidated rules. This definition reflects the fact that certain of the consolidated rules may apply and/or refer to individuals and entities who are not, in fact, solicitors as defined in the Solicitors (Scotland) Act 1980. 6. Numbering and formatting changes to fit the scheme of the draft consolidated rules are not always shown. 7. Where necessary, further explanations of amendments are given in the footnotes (which may not appear in the draft consolidated rules). 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 In this rule #, unless the context otherwise requires, terms listed in the first column of rule # shall have the meanings respectively ascribed to them in the second column of that rule: 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 practice under the title of solicitor or advocate or any combination of same1 (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; 1 This is an attempt to deal with the fact that an REL may be able to exercise the equivalent of rights of audience without being a solicitor or advocate pursuant to the Principal Regulations. Where the REL is so acting the order of precedence and conduct rules should apply as if they were solicitor advocates ‘‘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 you are in any doubt as to the propriety of any course of conduct he you 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 You accepts that it is the responsibility of the Council of the Society to make rules to secure, through the Secretary whom failing 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) You shall not accept instructions as a solicitor advocate (as opposed to a solicitor or registered European lawyer) without satisfying himself yourself that it is proper for him you to accept them. A solicitor advocate You shall be entitled at all stages of the case at his your sole discretion to decide whether he you requires the assistance of a solicitor or other representative of his firm your practice unit or of the instructing firm regulated person 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 you are entitled and indeed bound to refuse instructions. (4) A solicitor advocate You may not allow his your personal interests to affect the performance of his your professional duty. Accordingly, he you should not accept instructions to act in his your professional capacity in circumstances where he has you have a direct personal interest in the outcome. Where he has you have, or may have, an indirect personal interest in the outcome (e.g. where he is you are asked to act for a company in which he is you are a major shareholder or for an organisation in which he you holds office although unremunerated), he you should consult the Secretary before accepting instructions. Where a conflict of personal interest arises later, he you should inform the instructing solicitor regulated person or client and cancel instructions. (5) A solicitor advocate You may not accept instructions on any basis which would deprive him you of the responsibility for the conduct of the case or fetter his your discretion to act in consultation with the client in accordance with his your professional judgment and public duty. (6) A solicitor advocate You must not accept instructions to act in circumstances where, in his your professional opinion, the case is unstatable in law or where the case is only statable if facts known to him you are misrepresented to, or concealed from, the court. If such circumstances arise after he has you have accepted instructions, he you should decline to act further. There may, however, be exceptional circumstances in which it is proper for a solicitor advocate you, in order to assist the court, to present a case which he you believes to be unstatable in law. In such circumstances, the solicitor advocate you must explain to the client that he you cannot do more than explain the client’s position to the court, and that he you will be bound to draw the court’s attention to such statutory provisions or binding precedents as have led him you to the conclusion that the case is unstatable. 2.Duty in relation to other members of the legal profession (1) A solicitor advocate has You have 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 advocates2 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 You cannot assume that everything said to opposing professional colleagues will be treated in confidence and not disclosed to the another solicitor advocate counsel 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.
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