The Faculty of Advocates is the professional body for advocates (also referred to as counsel). Traditionally advocates have been called upon to provide written opinions and advice as specialists in their field. They were also called upon to represent their clients in courts.
Apart from limited exceptions, advocates are instructed by solicitors. They do not enter into a contract with a client but have rules of professional practice which they must follow. They operate under the cab rank rule which means that they should not refuse instructions if they are available and a reasonable fee has been agreed. Advocates can represent their clients in any court.
Advocates are not required in every case. Large firms of solicitors dealing with complex specialist commercial matters may have the necessary expertise within the firm.
Advocates are self-employed and, after becoming qualified, are called juniors. After 12-15 years they can choose to apply to the Lord President to be appointed to the Roll of Queen’s Counsel (QC) in Scotland by Her Majesty the Queen. Box 2 outlines the conduct expected of an advocate. Words such as confidence, trust, impartiality and personal integrity are used. An advocate is expected not only to have specialist knowledge but also to demonstrate these personal attributes.
Box 2 The professional duties of an advocate
The work of an Advocate is essentially the work of an individual practitioner whose conscience, guided by the advice of his seniors, is more likely to tell him how to behave than any book of rules.
the ultimate test of an Advocate’s conduct is whether it is such as to impair the trust and the confidence which others place in him and his profession.
The many duties to which an Advocate is subject require his absolute independence, free from all other influence, especially such as may arise from his personal interests or external pressure. Such independence is as necessary to trust in the process of justice as is the impartiality of the judge. An Advocate must therefore avoid any impairment of his independence and be careful not to compromise his professional standards in order to please his client, the Court or third parties.
This independence is necessary in non-contentious matters as well as in litigation.
Advice given by an Advocate to his client has no value if it is given only to ingratiate himself, to serve his personal interests or in response to outside pressure.
Trust and personal integrity
Relationships of trust can only exist if an Advocate’s personal honour, honesty and integrity are beyond doubt. For the Advocate, these traditional virtues are professional obligations.
It is of the essence of an Advocate’s function that he should be told by his client things which the client would not tell to others, and that he should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust. Confidentiality is therefore a primary and fundamental right and duty of the Advocate.
An Advocate shall respect the confidentiality of all information that becomes known to him in the course of his professional activity.
You should now watch this video in which Scott Manson reflects on the role of advocates.
The roles of solicitors and advocates are likely to see some changes in coming years. These changes will be driven by modernisation of the justice system and reforms, such as the review of legal aid and move towards digital courtrooms.