Scottish courts and the law
Scottish courts and the law

Start this free course now. Just create an account and sign in. Enrol and complete the course for a free statement of participation or digital badge if available.

Free course

Scottish courts and the law

2 Advocates

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.

Figure 2 Advocates in court
Figure 2 Advocates in court, Figure 3 The Faculty of Advocates logo, Figure 4 Advocates taking part in an annual legal procession

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.

Confidentiality

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.

(Faculty of Advocates, 2008)

You should now watch this video in which Scott Manson reflects on the role of advocates.

Download this video clip.Video player: The role of advocates
Skip transcript: The role of advocates

Transcript: The role of advocates

Scott Manson
I can be acting on behalf of an international company who's facing a damages claim for 50 million pounds. Equally, I have represented a dog on death row in Irvine. I've represented footballers who've been naughty. I have dealt with cases concerned with people who've suffered really bad, life-changing injuries.
And what I will say is that cases can be tragic, but you can find humour in them. And cases can seem extremely interesting on a superficial level but soon become very boring when you drill into the detail.
Advocates-- and that's the branch of the profession that I am a member of and represent-- have to be objective and find it easier to be objective sometimes than solicitors. That is because advocates do not act directly for the client. Advocates are instructed by the solicitor, who in turn acts directly for the client. So the solicitor has the day-to-day business relationship with the client. The advocate advises the client through the solicitor as to what to do or how to do something in a particular context or situation, usually court.
And because of that, advocates are able to be objective by saying, a judge is not going to accept this argument, therefore I am not going to make that argument even if you want me to. Equally, you can make arguments you know are going to lose provided you've told your client that you think they're going to fail. But being objective is extremely important because, if you tell clients what they want to hear, they will be extremely disappointed when the judge or anyone else tells them that they're not entitled to the things you've been telling them about. So I would say it's essential that all types of lawyers remain objective. Even if you need to try extremely hard for your client to get the best possible result for them, you should always remain objective, and the client ought to respect you more by remaining objective because they will get a better product and more certainty out of what can be a very difficult situation.
End transcript: The role of advocates
The role of advocates
Interactive feature not available in single page view (see it in standard view).

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.

WXM151_2

Take your learning further

Making the decision to study can be a big step, which is why you'll want a trusted University. The Open University has 50 years’ experience delivering flexible learning and 170,000 students are studying with us right now. Take a look at all Open University courses.

If you are new to University-level study, we offer two introductory routes to our qualifications. You could either choose to start with an Access module, or a module which allows you to count your previous learning towards an Open University qualification. Read our guide on Where to take your learning next for more information.

Not ready for formal University study? Then browse over 1000 free courses on OpenLearn and sign up to our newsletter to hear about new free courses as they are released.

Every year, thousands of students decide to study with The Open University. With over 120 qualifications, we’ve got the right course for you.

Request an Open University prospectus371