THE SCOTTISH LEGAL PROFESSION
An address by
W. James Wolffe QC, Dean of the Faculty of Advocates
To the International Congress of the Brazilian Judges Association
The Signet Library, Edinburgh,
My name is James Wolffe. I I am the Dean of the Faculty of Advocates. The Faculty of Advocates is not an academic institution: it is the professional body to which advocates in Scotland belong. And, as Dean, I am not an academic, but a practising advocate who is the elected leader of the bar in Scotland.
In Scotland, we have two legal professions: the profession of solicitor, regulated by the Law Society of Scotland; and the profession of advocate, to which I belong, regulated by the Faculty of Advocates. I propose to say something about the history of the Faculty of Advocates; and something about the functional distinction between the advocates and solicitors; before handing over to Robert so tell you more about the solicitors’ profession
Yesterday evening, at the reception in Parliament Hall, you will have admired the great south window. It depicts the establishment in 1532 of the College of Justice. The legislation which established the College of Justice created, as part of that College, the Court of Session, Scotland’s national civil court. That legislation also required the Court to admit advocates to plead cases before it.
The Faculty of Advocates is the body to which advocates admitted by the Court belong; and it is, along with the Court of Session and the Society of Writers to the Signet, one of the constituent parts of the College of Justice. By the end of the seventeenth century, the Court had delegated to the Faculty the responsibility for examining the qualification of individuals who wished to become advocates and for maintaining professional discipline.
That remains the constitutional arrangement today. Under a modern statute, the Legal Services (Scotland) Act 2010, the Court of Session is responsible for regulating the profession of advocate, but it may delegate most of those responsibilities to the Faculty, and it has done so. The Faculty exercises those responsibilities subject to the regulatory oversight of the Lord President of the Court of Session.
Consistently with Scotland’s Civilian legal heritage, in the sixteenth and seventeenth centuries, Scottish advocates commonly undertook University study on the Continent of Europe – particularly, in France or the Netherlands. Even in later centuries, it was not unusual for advocates to study on the Continent. Within living memory, an aspiring advocate was required to produce a thesis in Latin on a text from Justinian’s Digest as one of the Faculty’s admission requirements.
The Faculty’s library, the Advocates Library was formally instituted in 1689. Its collection extended well beyond the law, reflecting the wide literary and cultural interests of advocates. The philosopher David Hume was the Keeper of the Advocates Library for a period during the Scottish enlightenment. Famous literary advocates included Sir Walter Scott and Robert Louis Stevenson. From the early eighteenth century, the Advocates Library had the right to a copy of every book published in the UK; and until the 1920s it was effectively Scotland’s national library.
The modern National Library of Scotland was established in the 1920s when the Faculty of Advocates donated some 750,000 non-legal works to the nation. These included many treasures, which form the core of the National Library’s great collection. The Advocates Library retained its legal collection; and is, today, not only the finest working law library in the country, but holds a collection of early modern European legal literature of international significance – including, you may be interested to learn, seventeenth and eighteenth century works on Portuguese law.
There are four things which characterize the practice of advocates in Scotland. First, advocates profess particular specialist skill in courtroom advocacy although they may also provide specialist legal advice. Secondly, advocates, as a general rule, act on a referral basis. They receive instructions from solicitors, or from the members of other recognised bodies or professions. Thirdly, advocates practice as sole practitioners, within the collegiate setting of the Faculty of Advocates. And, fourthly, advocates have rights of audience in every criminal and civil court in Scotland.
Solicitors, by contrast, offer services directly to the public at large. They may offer the full range of legal services. Most solicitors, I suspect, never go near a courtroom. Equally, there are solicitors who specialise in court work. Solicitors may engage in advocacy in the lower courts, and, if they have undertaken additional training, may qualify to conduct advocacy in the higher courts as well. Solicitors may practice in different business forms - including partnership and limited liability forms. Solicitors’ practices vary enormously in size, from sole practitioners and small two or three person partnerships to very large organisations, some of them part of even larger multinational or UK wide organisations.
A member of the public with a legal problem may consult a solicitor. In many cases, the solicitor will deal with the problem. But if the problem is a complex one, or if it involves litigation, the solicitor may instruct an advocate to provide advice or to appear in court to argue the client’s case. If an advocate is instructed for a litigation, the solicitor will manage the case; while the advocate’s role is typically to advise on the factual investigations which should be undertakenand on the legal, procedural and tactical aspects of the case, and to appear in court to present the evidence and to advance the arguments.
This division betweentwo branches of the profession existsin a number of other legal systems – England & Wales, Northern Ireland and Ireland; Australia and New Zealand; Hong Kong; South Africa and Namibia. These legal systems have certain things in common. First, their criminal and civil procedure is fundamentally oral – it involves the examination and cross-examination of witnesses and the presentation of legal arguments orally to the judge. Secondly, the procedure is, fundamentally, adversarial – in the sense that the judge relies on the parties to present the relevant factual and legal material and has limited powers to carry out, or to direct, inquiries and research independently of the parties. Thirdly, these are all systems which rely to a significant extent on cases decided by the courts for the articulation and development of the law. And, fourthly, these jurisdictions have relatively small judiciaries. The work which in some other systems may be undertaken by the judiciary itself, or by judicial assistants, is, effectively, in our system, left to the parties – in practice, to their legal representatives.
These features of our system have consequences for the role of lawyers. The court relies heavily on the lawyers who represent clients who appear before it to carry out the investigations necessary so that their clients’ cases can be properly presented, and to undertake the research into the law which is relevant to the case. The Court also relies on the lawyers who appear before it to present the relevant material efficiently and effectively and in a manner which will assist the court to reach a decision. It follows that the effective representation of accused persons and litigants in our system demands skill in the specialist professional discipline of advocacy.
This is reflected in the training and regulation of advocates in Scotland. The academic and practical requirements for admission as an advocate reflect the expectation that any advocate has the right to represent accused persons and litigants in any civil or criminal court in Scotland. And, although most advocates start their careers as solicitors, in order to become advocates, they must undergo a specialist training course lasting up to nine months which is specifically tailored to skill in advocacy. And the Faculty’s conduct rules are tailored to the challenges which arise in the context of adversarial oral advocacy in our system – for example, an advocate is obliged to draw to the Court’s attention all the relevant legal materials, whether or not they favour the advocate’s client.
Advocates are bound by what we call the “cab-rank rule”. An advocate may not, without a good reason, decline to act for an accused person or a litigant who tenders a reasonable fee. Like a taxicab, the advocate must take the cases which come his or her way. This rule, coupled with the rule that advocates must practice as sole practitioners, ensures that every accused person or litigant in the Scottish courts is entitled to instruct the advocate of his or her choice. It secures that the unattractive or unpopular litigant can obtain effective representation. It is a reflection of the commitment of the profession to promoting access to justice for all in our jurisdiction, a commitment which is reflected in the motto of the Faculty of Advocates, a motto derived from the opening sentence of Justinian’s Institutions – Suum Cuique.
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