C4.4: Conduct of Solicitor Advocates

Interpretation

4.4.1 In this rule 4.4, unless the context otherwise requires, terms listed in the first column of rule 4.4.1 shall have the meanings respectively ascribed to them in the second column of that rule:

Propriety of conduct

4.4.2 Where you are in any doubt as to the propriety of any course of conduct 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.

Acceptance of instructions

4.4.3 You accept that it is the responsibility of the Council 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.

4.4.4 You shall not accept instructions as a solicitor advocate (as opposed to a solicitor or registered European lawyer) without satisfying yourself that it is proper for you to accept them. You shall be entitled at all stages of the case at your sole discretion to decide whether you require the assistance of a representative of your practice unit or of the instructing 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.

4.4.5 There are circumstances in which you are entitled and indeed bound to refuse instructions.

4.4.6 You may not allow your personal interests to affect the performance of your professional duty. Accordingly, you should not accept instructions to act in your professional capacity in circumstances where you have a direct personal interest in the outcome. Where you have, or may have, an indirect personal interest in the outcome (e.g. where you are asked to act for a company in which you are a major shareholder or for an organisation in which you hold office although unremunerated), you should consult the Secretary before accepting instructions. Where a conflict of personal interest arises later, you should inform the instructing regulated person or client and cancel instructions.

4.4.7 You may not accept instructions on any basis which would deprive you of the responsibility for the conduct of the case or fetter your discretion to act in consultation with the client in accordance with your professional judgment and public duty.

4.4.8 You must not accept instructions to act in circumstances where, in your professional opinion, the case is unstatable in law or where the case is only statable if facts known to you are misrepresented to, or concealed from, the court. If such circumstances arise after you have accepted instructions, you should decline to act further. There may, however, be exceptional circumstances in which it is proper for you, in order to assist the court, to present a case which you believe to be unstatable in law. In such circumstances, you must explain to the client that you cannot do more than explain the client's position to the court, and that you will be bound to draw the court's attention to such statutory provisions or binding precedents as have led you to the conclusion that the case is unstatable.

Duty in relation to other members of the legal profession

4.4.9 You have a duty of loyalty to professional colleagues.

4.4.10 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 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.

4.4.11 It must, however, also be remembered that all have a duty to act in the best interests of the respective clients. You cannot assume that everything said to opposing professional colleagues will be treated in confidence. 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. Correspondingly, if one party to the discussion is not prepared to treat information as confidential he should say so before the information is disclosed.

4.4.12 Where an agreement is reached following such discussions or an undertaking is given by one counsel to another it is binding in honour between them and should be reported as soon as possible so that it can, if necessary, be incorporated in a formal exchange of letters. Alternatively, a joint minute should be drafted and initialled by counsel who should also bear in mind that once recorded in writing the written agreement supersedes the verbal agreement.

Duties in relation to an instructing agent

4.4.13 When instructed by a regulated person you must respect the fact that the regulated person's relationship with the client is different from, and likely to be more continuing than, your own. You should do nothing, beyond what your professional duty requires, to upset the agent-client relationship or destroy the trust which the client has in the regulated person.

4.4.14 When you have reason to believe that a regulated person has been guilty of professional misconduct (as opposed to professional negligence) you have a duty to the client, the court and the profession to take appropriate action. If the matter comes to your knowledge in the course of proceedings in court, it may be necessary to take immediate action, and if an adjournment is necessary for this purpose, it should be asked for. If the matter does not call for immediate action, you should consult the Secretary  before making any formal complaint or report.

4.4.15 If you feel compelled to criticise the conduct of a regulated person in respect of something falling short of professional misconduct, you should avoid doing so in the presence of the client and should in any event ask the regulated person to explain what he has done and why before criticising his conduct.

4.4.16 Where instructed by a regulated person or directly by a client you should consider carefully whether you should attend a consultation without your instructing regulated person or another representative of your practice unit or of the instructing practice unit being present. The presence of the regulated person or representative will protect both you and the regulated person should a dispute arise later as to what advice you gave or what instructions you were given by the client.

4.4.17 In exceptional circumstances, it may be unavoidable that a solicitor advocate instructed by a regulated person has to speak to the client without the regulated person being present. Such an occasion will however be rare, and when it arises the regulated person should be told as soon as possible what transpired.

Duties in relation to the client

4.4.18 Confidentiality. It is your fundamental duty not to disclose or use any information communicated to you in your professional capacity other than for the purpose for which it was communicated to you, so long as it remains in confidence and has not otherwise been made public. Any conversations relating to a case which take place between a solicitor advocateand those representing the other side, including Crown counsel, are confidential and should not be revealed to anyone other than the client or those who are professionally concerned with the case. If you wish to discuss a case with a colleague, for example, for the purpose of seeking his advice about law, you should do so only in terms which do not disclose, or risk disclosure of, the identity of the client or other parties involved. This applies equally where you are asked to give a written opinion or to advise in consultation. There may be good reasons, unknown to you, why the client or instructing regulated person would not even wish it to be known that your advice has been sought. Idle gossip about cases and clients, even if the facts are publicly known, is damaging to your reputation and that of the profession.

4.4.19 Duty to uphold the interests of the client. You should remember that the client relies on you to exercise your professional skill and judgment in the client's best interests. You must at all times do, and be seen to do, your best for the client and you must be fearless in defending your client's interests, regardless of the consequences to yourself (including, if necessary, incurring the displeasure of the bench). But you must also remember that your client's best interests require you to give honest advice however unwelcome that advice may be to the client and that your duty to the client is only one of several duties which you must strive to reconcile.

4.4.20 Conflict between client and instructing regulated person (e.g. where the client may have a claim for professional negligence against his agent). Where it appears to you that a conflict of interest has arisen or may arise between the client and the instructing regulated person, it is your duty to take steps to ensure that the client is so advised in order that he can get the advice of another regulated person. It will depend on the circumstances how this can be done. The great majority of instructing regulated persons can be relied upon, when the conflict has been pointed out, to take the necessary steps themselves. It will therefore normally be inappropriate to mention the matter in the presence of the client. But it may be necessary to record your advice as to the existence of a conflict in a formal note and to ask the instructing regulated person to send it to the client, or to deal with the matter at consultation with the client. In extreme cases, it may be your duty to refuse to act further on the instructions of the regulated person concerned, but before doing so you should where practicable intimate in writing to the instructing regulated person that it is your intention to refuse to act further.

4.4.21 Cancellation of instructions. In any case where you feel obliged to cancel instructions, you must do so without delay and take such steps as are necessary to ensure that the client, and where appropriate the instructing regulated person, knows why you have withdrawn. Where you feel obliged to cancel in the course of a trial or other hearing, you must formally intimate to the court that you have cancelled instructions and are withdrawing from acting and must protect the interests of the client by moving for an adjournment so that the client can get other advice. You are under no obligation to explain in detail to the court or tribunal your reasons for cancellation, since to do so may prejudice your client, and you should not yield to pressure to do so. If in doubt as to whether you are entitled or bound to cancel you should seek the advice of the Secretary, and if necessary obtain an adjournment to do so.

Special duties in criminal cases

4.4.22 Pleas. Where the Crown offers to accept a reduced or restricted plea, you have a duty to advise the accused of that offer and to obtain his instructions about it. Likewise, where any limited offer to plead is made by an accused, it should (if considered in law to be appropriate) be conveyed to the Crown for consideration, without delay. For avoidance of doubt, it is prudent to obtain written instructions from the accused, for the tendering of a plea. In no circumstances should you tender any plea on behalf of the accused unless instructions to do so have been obtained.

4.4.23 In advising as to the possible consequences of a plea of guilty, you should refrain from making any positive forecast of the possible sentence beyond drawing the attention of the accused to the normally anticipated range of sentences in the circumstances of that particular case. You may also discuss any current case law indicating that a discount sentence may be expected when a plea of guilty is tendered at an appropriate stage.

4.4.24 Confessions. Where an accused person makes a confession to you and you are satisfied in law that such confession amounts to guilt, you must explain to the accused (if he is not pleading guilty) that the conduct of his defence will be limited by that confession. It must be emphasised to the accused that no substantive defence involving an assertion or a suggestion of innocence will be put forward on his behalf and that, if he is not satisfied with this, he should seek other advice. You should consider whether it is advisable to obtain confirmation in writing from the accused that he has been so advised and that he accepts such an approach to the conduct of his defence.

4.4.25 So long as an accused maintains his innocence, your duty lies in advising him on the law appropriate to his case and the conduct thereof. You may not put pressure on him to tender a plea of guilty, whether to a restricted charge or not, so long as he maintains his innocence. Nor should you accept instructions to tender a plea in mitigation on a basis inconsistent with the plea of guilty. You should always consider very carefully whether it is proper, in the interests of justice, to accept instructions to tender a plea of guilty. You should ensure that the accused is fully aware of the consequences and should insist that the instructions to plead guilty are recorded in writing.

4.4.26 Acting for co-accused. Save in the most exceptional circumstances, you should not accept instructions to act for more than one accused or appellant.

The duty to the court

4.4.27 Duties in relation to matters of law. Where you are aware of a previous decision binding on the court, or of a statutory provision relevant to a point of law in issue, it is your duty to draw that decision or provision to the attention of the court whether or not it supports your argument and whether or not it has been referred to by your opponent.

4.4.28 Where there is no contradictor, you should inform the court of authorities relevant to that case, even when such authority may be against your interest.

Duties in relation to matters of fact

4.4.29 In relation to matters of fact, you should have two principles in mind:

(a) it is for the court, not for you, to assess the credibility and reliability of witnesses; and

(b) you must not, directly or indirectly, deceive or knowingly mislead the court.

4.4.30 In court. When conducting a case in court, you should base your questions upon your instructions, the precognitions and the productions supplemented by information obtained at consultation and, after evidence has been led, upon the evidence.

4.4.31 You should not state your personal opinion on matters of fact. It is particularly important to observe this rule when addressing a jury. You must not make observations on matters of fact which are not based on, or justified by, the evidence. In a criminal trial, you should not under any circumstances express either directly or indirectly a personal belief in the innocence of the accused.

4.4.32 You may not be a party to the giving of evidence which you know to be perjured evidence, or to any other course that would enable a case to be put forward on behalf of a client which the client has informed you is unfounded in fact.

4.4.33 You may not put to a witness any question suggesting that the witness has been guilty of a crime, fraud or other illegal or improper conduct unless you have personally satisfied yourself that there is evidence which could, if necessary, be led in support of the suggestion.

4.4.34 Interviewing witnesses. There is no general rule that you may not discuss the case with a potential witness, but when instructed by a regulated person, you are entitled to insist that you accept instructions on the basis that you will not do so.

4.4.35 In cases where you have not accepted instructions on such a basis you must avoid doing or saying anything which could have the effect of, or could be construed as, inducing the client or skilled witness to ''tailor'' his evidence to suit the case.

4.4.36 Once a proof or trial has begun, you must not interview any potential witness in relation to what has been said in court in the absence of that witness.

4.4.37 Some cases cannot be properly prepared or conducted if the foregoing rules against interviewing potential witnesses are followed strictly according to the letter. The client may be accompanied at consultation by a relative or friend who is also a potential witness. Where the client is a corporate persona, those who can speak for the corporation may also be potential witnesses, although in that case it is usually better to discuss the case with someone who is not personally involved and can take a more objective view of it. Some witnesses may be witnesses to fact as to part of their evidence and expert witnesses giving opinion evidence as to another part. It may be essential in a case raising technical issues to discuss points arising from the evidence with a skilled witness who has not yet given evidence. In such cases, you must use your discretion. But you should always act according to the spirit of the rule-namely, that you should not under any circumstances do or say anything which might suggest to the witness that he should give evidence otherwise than in accordance with his honest recollection or opinion.

4.4.38 You may not, except with the consent of your opponent and of the court, communicate with any witness, including your client, once that witness has begun to give evidence until that evidence is concluded.

4.4.39 As to interviewing the client or witnesses in the absence of an instructing agent, see rule 4.4.16 and 4.4.17.

4.4.40 Confessions to a solicitor advocate by accused persons. It follows from the provisions of rules 4.4.24 and 4.2.25 that, where an accused person has admitted that he committed the act with which he is charged (whether or not the admission is an explicit admission of guilt in law), you may not conduct the defence on a basis inconsistent with that admission. Thus, you may not put to a witness any question suggesting, or tending to suggest, that the accused did not commit the act. A fortiori, you may not seek to set up a special defence of alibi or incrimination.

4.4.41 Subject to the rule stated in rule 4.4.40, you may

(a) take any proper objection to the jurisdiction of the court, to the competency or relevancy of the indictment, or to the admissibility of evidence;

(b) test the evidence for the prosecution by cross-examination;

(c) cross-examine or lead evidence in support of a special defence of insanity or (depending on the tenor of the accused's admission) self-defense;

(d) cross-examine or lead evidence for the purpose of explaining the actings of the accused or supporting a plea in mitigation;

(e) make submissions as to the sufficiency in law of the evidence to support a verdict of guilty.

4.4.42 Ex parte statements of fact by a solicitor advocate at the bar. The court frequently must rely on statements as to matters of fact made at the bar, for example, in the Motion Roll and certain types of Petition procedure. Such statements are made on the responsibility of the solicitor advocate as an officer of the court and you must therefore be scrupulously careful that anything stated as fact is justified by the information in your possession. If the court asks a question which you cannot answer on the information in your possession, you must say that you cannot answer it and, if necessary, ask leave to take instructions on the matter. This rule applies whether or not the opposing party is represented in court.

4.4.43 Pleadings.  You must have a proper basis for stating a fact in any pleadings, such as on precognition or in the light of consultation with the client.

The duty of courtesy

4.4.44 Discourtesy is as offensive in court as it is outside, and is detrimental to your reputation and that of the bench, to the interests of the client and to public confidence in the administration of justice.

4.4.45 In the examination of witnesses, and particularly in the cross-examination of hostile witnesses, you must remember that the law places you in a privileged position which you should not abuse, for example, by bullying or insulting behaviour or by making offensive or personal remarks.

4.4.46 You should seek to uphold a relationship of mutual trust and courtesy with the bench.

4.4.47 A failure to appear in court on time should always, as a matter of courtesy, be the subject of an apology. If the court is still sitting, and has not yet passed on to other business, the proper time to make the apology is at once on arrival in court. The apology should always be in open court to the bench. It is not sufficient to offer an apology through the Macer or Clerk of Court.

The duty to attend court

4.4.48 It is your duty to arrange your affairs so as to avoid a reasonably foreseeable clash of commitments.

4.4.49 Having accepted instructions to appear, it is your responsibility to ensure, unless (in a civil case only) other arrangements have been made with an instructing regulated person, that you are present in court on the day and at the time appointed and thereafter until the trial or hearing is concluded. Where unforeseen circumstances make it impossible for you to be present you must ensure that someone else is present at or before the time appointed to explain your absence and, if necessary, to move for an adjournment. If you are unable to ensure that someone else is present you must contact the Secretary.

4.4.50 Since instructions to appear in the High Court of Justiciary and the Inner House take precedence over instructions to appear in the Outer House, it follows that if you have accepted instructions to appear in the High Court or the Inner House, including instructions for the Single Bills, it is your duty to ensure that you are present there at the appointed time, even though you also have instructions to appear in the Outer House. If a clash of commitments appears likely you should ensure that someone else is present to appear in the Outer House in your place and, if necessary, to move for an adjournment until you are free to appear there. If you are unable to ensure that someone else is present you must contact the Secretary. If a conflict arises due to unforeseen circumstances and you find yourself still detained in the Outer House when you must appear in the High Court or the Inner House, you should inform the Lord Ordinary that you require to go to the High Court or the Inner House as the case may be and ask for an adjournment so that you can do so.

4.4.51 If you are engaged in a proof or other hearing in the Outer House and expect to be in difficulty because you are required to attend elsewhere in the Outer House to deal with an important matter on the Motion Roll on the same day, you or a representative from your practice unit should inform the Clerk of Court as soon as possible so that the judge concerned may be alerted to the problem and take such action as is appropriate. It has been accepted that in such circumstances the start of the proof might reasonably be delayed until your business in the other court has been completed.

4.4.52 Where you are a senior solicitor advocate appearing with a junior solicitor advocate you should only be absent from court if you are satisfied that your junior will be present and will be able to deal properly with any matter which may arise.

Responsibility for pleadings and presentation in civil actions

4.4.53 If you draft any pleadings you accept personal responsibility to the court for their contents, except where your draft has been altered without your knowledge and consent. Where you find that pleadings drafted by you have been altered without your knowledge and consent, it is your professional duty to consider whether you can support the case on the basis of the pleadings so altered.

4.4.54 You should not sign in your own name pleadings drafted by someone else save in exceptional circumstances. Papers may be signed in that way provided you are satisfied that the solicitor advocate for whom you sign cannot reasonably be found and you are also satisfied that the paper is in proper form for submission to the court. In the case of pleadings drafted by others, before you sign same or otherwise agree to speak to same you have a professional duty to consider whether you can support the pleadings on the basis of the available information. If you cannot, you must insist that the pleadings are revised and, if not, refuse to act further.

Speculative actions

4.4.55 In speculative actions, you have a particular responsibility to the court both with regard to your own assessment of the merits of the case and with regard to the advice which you give. The nature of the responsibility undertaken by counsel and solicitor was stated thus by Lord President Normand (X Insurance Co v A & B 1936 SC 225, 239):

''It has long been recognised by the Courts that this is a perfectly legitimate basis on which to carry on litigation and a reasonable indulgence to people who while they are not qualified for admission to [Legal Aid] are nevertheless unable to finance a costly litigation.

But it is equally recognised that there is involved in such business a grave risk of abuse unless it is carried out with strict regard to honour by all who are professionally concerned in it. Before acting in business of this kind it is the imperative duty of the solicitor and of the counsel to consider whether the party for whom they are to act has a reasonable prospect of success.

The reasons for this are obvious, and need no discussion. If a solicitor, when asked to conduct the case on a speculative footing, is, after consideration, unable to advise that there is a reasonable prospect of success, he should refuse to conduct the case. But, if he has reasonable doubts about the prospects of success, he is justified in consulting counsel. If counsel advises that the action may properly be raised, the solicitor is entitled to follow his advice, and in the future conduct of the action he is bound to act in accordance with counsel's instructions. If he does this after having fairly disclosed to counsel all the information at his disposal, he will not be exposed to a charge of professional misconduct. In order that the prospects of success may be fairly estimated by the solicitor and by counsel in their turn, it is in most cases, where questions of fact are involved, a necessary precaution that fair and honest precognitions of the chief witnesses who will be relied on should be taken at the outset.'' (See also the opinion of Lord Fleming at 250-251.)

Criminal appeals

4.4.56 In advising on criminal appeals, you have a duty, first, to consider whether there are grounds for an appeal which you are prepared to state to the court and, second, if in your opinion there are none, to refuse to act further in the case: Scott v HM Advocate 1946 JC 68 per Lord President Normand at 69.

4.4.57 Having advised that an appeal is statable, you may later come to the view that it is not. If so, you must promptly inform your client that you can no longer act in the case.

Opposing a party litigant

4.4.58 Where you appear against a party litigant, you must avoid taking unfair advantage of the party litigant and must, consistently with your duty to the client, co-operate with the court in enabling the party litigant's case to be fairly stated and justice to be done. But you must not sacrifice the interests of the client to those of the party litigant.

Requirement to demonstrate continuing professional development

4.4.59 Every solicitor advocate shall undertake a minimum of ten hours continuing professional development related to their practice as a solicitor advocate and shall produce that record to the Council on an annual basis in such form as may be prescribed by the Council from time to time.