Review of rights of audience

Earlier this year in Woodside v HMA [2009] HCJAC 19 Lord Justice Clerk Gill drew attention to some aspects of the professional conduct of solicitor-advocates in Scotland.

The facts of the case are detailed in the judgment of Lord Gill. Alexander Woodside was convicted of murder. He had initially been represented by Gerard Brown CBE, a senior partner of Livingstone Brown. Mr Brown had rights of audience in the High Court of Justiciary and decided he would represent Mr Woodside in the trial. Brown's assistant acted as instructing solicitor, and a second solictor-advocate. Michael McSherry, from another firm, was instructed to act in the trial too. McSherry was admitted as a solicitor before Brown but both were admitted as solicitor-advocates in the same year. At paargaph [11] Lord Gill noted,

"Since this was a murder charge, the appellant was entitled to be defended with the benefit of legal aid by senior and junior counsel. I am satisfied on the evidence, oral and documentary, that the decision that he would be defended by Mr Brown and Mr McSherry on the instructions of Mr McGlashan, rather than by counsel, was presented to him as fait accompli. "

It was alleged in the appeal by Woodside that Mr Brown had  a conflict of interest in his conduct of the case – having previously represented Mr Woodside's mother – a crucial Crown witness in the case, although this was promptly dismissed by the court. The second ground of appeal was considered in more detail. It was alleged that "that the defence at the trial was conducted incompetently by reason of (a) the failure to cross-examine Forbes; to cross-examine Mrs Woodside effectively; to call Alexander Woodside, Senior to speak to her dishonesty; to call the other witnesses present to deny that the appellant made the alleged Sunday confession; or to call Kelly Ann Savage to deny that he made the alleged Longriggend confession; and (b) Mr Brown's absence from part of the trial." (para [42]).

While critical of the conduct of the case Lord Gill was careful to note that this was not of itself a ground for appeal:

"The advocacy of Mr Brown and Mr McSherry seems to have lacked a certain finesse. Mr Brown's speech to the jury was unstructured and ill-focused. No doubt many capable counsel and solicitor advocates would have approached the defence in a different way. But an Anderson appeal is not a performance appraisal in which the court decides whether this question or that should or should not have been put; or whether this line of evidence or that should or should not have been pursued. The appellant must demonstrate that there was a complete failure to present his defence either because his counsel or solicitor advocate disregarded his instructions or because he conducted the defence as no competent practitioner could reasonably have conducted it (McBrearty v HM Adv 2004 SCCR 337, at [34]-[36], [60]; Grant v HM Adv 2006 SCCR 365, at paras [21]-[23]; DS v HM Adv [2008] HCJAC 59). That is a narrow question of precise and limited scope. "

And Lord Justice Clerk Gill accepted that the conduct of the trial did not satisfy the Anderson grounds for appeal.

However, he did go on to express concern about various aspects of the professional regulations of solicitor-advocates.

He noted the effective self-certification as senior and junior counsel where two solicitor-advocates acted in a case,

"[69] When senior and junior counsel are instructed in a defence, their roles and responsibilities are clear-cut and well understood. That concept of seniority is in my view conducive to the due administration of justice. It does not apply in the case of solicitor advocates. In the 1992 Code, the terms "senior solicitor advocate" and "junior solicitor advocate" were not defined. When two solicitor advocates conduct a defence together, the leading solicitor advocate is not necessarily senior to the other in terms of admission as a solicitor or admission as a solicitor advocate, or for that matter in terms of experience and skill. Sometimes two solicitor advocates appear in a trial, ostensibly as senior and junior, only to appear in a later trial with their roles reversed. Although the 1992 Code, like the current Rules for the Conduct of Solicitor Advocates 2002 (the 2002 rules, rule 9(5)), envisaged that where two solicitor advocates appeared together, there would be a relationship of senior and junior, in practice there is no concept of seniority other than for the purpose of charging fees. The Criminal Legal Aid (Scotland) (Fees) Regulations 1989 provide that a solicitor advocate shall be a "senior solicitor advocate" where he is undertaking work equivalent to that which would be done by a senior counsel in a case where the proceedings relate to a prosecution or conviction for murder or where the Scottish Legal Aid Board has authorised the employment of senior counsel; and that a solicitor advocate shall be a "junior solicitor advocate" where he is undertaking work equivalent to that which would be done by a junior counsel, whether or not the Board has authorised the employment of senior counsel in the case (reg 2(1A)).

[70] The matter of fees is no concern of this court, except where it may have a bearing on the due administration of justice. The undisputed evidence in this appeal is that when two solicitor advocates appear together, the nominal leader, whether or not he is senior to his colleague in any respect, and regardless of his experience, is paid as if he were a Queen's Counsel. Such a solicitor advocate may have little experience and may be ineligible for silk. That rule creates an incentive that may not be in the interests of justice.

[75] To attain the rank and dignity of Queen's Counsel, a member of the Bar or a solicitor advocate has to demonstrate the length and range of his experience and the quality of his skills and judgment. The Dean of Faculty supervises the representation of accused persons in the High Court by members of Faculty to ensure that serious and difficult defences are not put in the hands of inexperienced counsel. If necessary, the Dean will direct a member of the senior Bar, or an experienced junior of proven ability, to make himself available for a criminal defence, regardless of his prior commitments. With solicitor advocates, however, the position seems to be one of unmonitored self-certification. As Mr Brown told us, it is possible for a solicitor to be given rights of audience and to appear in the High Court on the following day on his own or as senior to another solicitor advocate. From the standpoint of the administration of justice, the idea that any solicitor advocate can accept instructions, perhaps from his own employee, as leader in a serious trial regardless of his experience and skill, is a matter for concern. The 2002 Rules provide no safeguard to protect the accused in such a case from being defended by an inexperienced solicitor advocate whose reach exceeds his grasp. "

And Lord Gill noted that Mr Woodside should have been advised of the advantages and disadvantages of instructing counsel or solicitor-advocates in terms of the then applicable Code of Conduct (Scotland) Rules 1992 (the 1992 Code), Rule 3 which provided:

"Where in the course of advising a client a solicitor identifies a situation which may require appearance in a court, he shall advise his client … 

(b) [of] the advantages and disadvantages of instructing appearance by a solicitor advocate and by counsel respectively, which advice, subject to the foregoing generality, shall cover

(i) the gravity and complexity of the case;

(ii) the nature of practice, including specialisation, and experience of the solicitor advocate; …

(c) that the decision of whether the solicitor advocate or counsel should be instructed is entirely that of the client."

Lord Gill was particularly concerned about the manner in which Rule 3 appeared to have been disregarded in this case,

"[71] My conclusion on the evidence is that Rule 3 of the 1992 Code was disregarded in this case. I regret to say that Mr McGlashan was not a credible or satisfactory witness. When questioned about certain matters that seemed not to reflect well on Livingstone Brown, he displayed studied unconcern. He replied unconvincingly to numerous questions by saying either that he did not know or that he could not remember. He appeared to resent being questioned at all. I do not believe his evidence that he discussed with the appellant the option of his being defended by counsel. He himself was unable to recall the precise terms of this alleged discussion. There is no trace of it in any of the files. There is no entry in the legal aid account to suggest that enquiries were made of the advocates' clerks regarding the availability of counsel. No names of counsel, senior or junior, or of any other solicitor advocates, were put to the appellant. When Mr McGlashan instructed Mr Brown in this difficult case he did not know what experience he had had in murder trials.

[72] The reality is that Mr Brown decided at the outset that he would defend the appellant with Mr McGlashan in the role of his instructing solicitor. No other option was put to the appellant. Even when Gordon and Smyth reported to Livingstone Brown that the appellant wished to be defended by senior counsel, neither Mr McGlashan nor Mr Brown seems to have discussed that option with him. An obvious weakness in Rule 3 of the 1992 Code was, in my view, that while it imposed a professional obligation, it provided no practical safeguard against its being ignored. There is the same weakness in the 2002 Rules."

But as well as the difficulty of policing Rule 3 he noted that where – as happened here – a representative of a firm instructs a solciitor advocate from the same firm there are difficulties in ensuring the client gets adequate advice.

"[73] But this case highlights a more serious problem. It arises from the fact that a solicitor advocate may accept instructions from his own firm (1992 Code, Sch, para 1(2); now the 2002 Rules, rule 1(2)). It is difficult to see how a solicitor who has rights of audience, or whose partner or employee has such rights, can give his client disinterested advice on the question of representation. There may be an incentive for him not to advise the client of the option of instructing counsel, or a solicitor advocate from outside his firm, in circumstances where either of those options might be in the client's best interests. Even if the solicitor conscientiously advises the client that he or his partner or employee should defend him, the informed observer may reasonably doubt the objectivity of that advice."

The case generated considerable interest (see a typically interesting post by Jonathan Mitchell QC) with the failure of the Law Society of Scotland to act immediately criticised by the Dean of the Faculty of Advocates.

The Society of Solicitor Advocates in April voted to reject the judicial criticisms of their conduct asserting that each of the grounds for criticism had been previously addressed noting that the Solicitors (Scotland) (Standards of Conduct) Practice Rules 2008 were designed to ensure that the instructing solicitor instructed a solicitor advocate or advocate of appropriate skill, specialisation and experience to the task who will charge an appropriate and reasonable fee. And on self-certification noted that following consultations (including consultation with the judiciary) the Council of the Law Society of Scotland had set up a committee, chaired by a sheriff principal to recommend solicitor advocates for remuneration as seniors for legal aid purposes.

Today the Scottish government announced a review into the workings of the system of solicitor-advocates to be chaired by Ben Thomson, chairman of the Noble Group.

Justice Secretary Kenny MacAskill said,

"I am determined to see a justice system in Scotland that is fit for the 21st century. The Lord Justice Clerk and his fellow judges in the Woodside case raised significant concerns about the regulation of solicitor advocates. That, and the debate which has followed, have persuaded me that it is time for an independent review of the system of rights of audience which has been in place since 1990."

The remit of the review is:

"In the light of the decision of the Appeal Court in the case of Woodside v HMA, to review the operation of rights of audience in the Court of Session and High Court of Justiciary, having particular regard to

– the desirability of common principles applying in relation to the exercising of rights of audience by all practitioners appearing before the Court of Session and the High Court of Justiciary, and fair competition between solicitors advocates and advocates
– the paramount importance of the proper administration of justice

recommend any improvements which might be made to the regulation of such rights of audience, and make any related observations or findings."

The review will report by March 2010.

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