How to Instruct Counsel
Information on instructing an Advocate for direct professional access groups.
The Faculty has widened the range of direct professional access groups with the unique status of being able to instruct an advocate directly, without the need to first instruct a solicitor.
Instruction to Counsel from members of certain bodies may be accepted for any of the following categories of work:
- Advisory work
- The drafting and revisal of documents
- The conduct of proceedings before any public inquiry, tribunal or other forum which the instructing person may have a right of audience. This includes all forms of public inquiry, Lands Tribunal, arbitration and other "non-court" proceedings. This right includes the drafting and revisal of any documents associated with the proceedings and the drafting and revisal of any stated case arising out of proceedings. In some cases only certain classes of Members within the particular organisation have been recognised by the Faculty for direct professional access.
The main benefit of Direct Access for your organisation is economy of time. You will receive a quicker response and a quicker resolution because of your eligibility for direct access to Counsel. The company, Faculty Services Ltd., provides administration facilities for all subscribing Members. The low overheads associated with centralized administration permit Members of Faculty to offer a service at competitive rates. Iain Murray or his deputies are always willing to give fee advice in advance of any instructions.
Under the 
Standard Terms of Instruction (.pdf - 53KB), advocates are prohibited from accepting instructions which involve the conduct of any other proceedings. In practise, this requires the retention of a solicitor for any Sheriff Court or Court of Session work. In addition, an advocate may at any stage require that a solicitor take over the instruction of the work.
It is a professional obligation on the instructing member and through him or her or the company or firm of which he or she is an employee, director or partner to make payment of the advocate’s fee.
It should be emphasised, particularly in urgent matters, counsel are flexible about the manner in which they receive instructions and may give advice in writing or verbally at consultation or by telephone.
If anyone proposing to instruct counsel is under any doubt as to his or her right to do so, they should contact either their own professional organisation or an advocates’ clerk who will be happy to advise.
The Scottish Bar is generalist in nature and the Murray Stable in particular is able to offer counsel experienced in a very wide range of work. Stable members have given an indication of particular areas of interest and experience and Direct Access instructors may find it useful to search through this. However, as these listings are not comprehensive and other advocates also have experience in these areas, the best source of guidance for those wishing to instruct Counsel is the clerk. Iain Murray and his deputies are well placed to offer agents advice on the availability, suitability and costs of engaging counsel. They can be contacted by their direct line telephone numbers or by e-mail. In the unlikely event that they cannot provide suitable counsel for your particular case they would be pleased to check the availability of counsel in other stables.
Which Counsel should you instruct?
Different considerations apply depending on whether or not practitioners have a particular Counsel in mind for the work concerned.
Where the practitioner is not instructing a named Counsel
This may happen where:-
- The practitioner has not instructed Counsel before;
- The practitioner is seeking advice in a specialised field but does not know which Counsel have appropriate expertise;
- A particular Counsel is unavailable and an alternative is sought.
The clerks have access to the diaries of all Counsel at the Bar and can readily assess availability. We know the areas of experience and expertise of Counsel in this stable and often in others, and are in constant daily contact with other clerks. We can advise a practitioner quickly on a choice of Counsel.
The advice given by clerks will cover whether Senior or Junior Counsel should be instructed. As a general guide, Queen’s Counsel, who will have at least thirteen years’ experience at the Bar, do not normally draft but may revise written pleadings and other documents. If drafting work is required then Junior Counsel should normally be involved, with or without a Senior.
Queen’s Counsel may be instructed alone. However, they have the right to decline to act without a Junior and may advise that in certain cases the instruction of Junior Counsel would be wise.
Where the practitioner has a particular Counsel in mind
Letters of instruction should be sent directly to Counsel’s Clerk at Parliament House. Fax or email may also be used. In all cases practitioners should set out precisely what is wanted from Counsel and draw attention to any relevant time limits or other constraints.
If the particular Counsel cannot undertake the instruction within a reasonable time or is not available on the relevant date, the practitioner will normally be contacted without delay by Counsel’s Clerk to explain the problem and to seek an acceptable solution.What papers should be sent to Counsel?
No special rules apply here. However, some guidelines may be of use to those not familiar with the instruction of Counsel. An important general point to bear in mind is that while a practitioner may have many letters and documents relating to a case, a careful selection of the papers to be sent to Counsel is likely to produce a quicker and more cost-effective response. Original documents, plans, contracts, bank statements, photographs etc should never be sent.
Opinions
Where a written opinion is required, the best way of proceeding is for the practitioner to prepare a written request known as a Memorial, setting forth clearly and succinctly:
a) the facts, including details of correspondence with any other interested parties
b) the apparent legal issues involved (identifying authorities thought to be relevant)
c) the precise questions which in the practitioner’s view require to be answered
Consultations
It is vital for Counsel to be told precisely why a consultation is being held. Surprising though it may seem, instructions often omit to mention the purpose of the meeting, e.g. that a Proof or Debate is imminent or that an offer has to be considered. If a Memorial is not to be sent, for example, where a consultation is instructed in advance of a written opinion, a careful selection of relevant papers will help Counsel identify the crucial issues.
Drafting
Practitioners should send Counsel all relevant precognitions, expert reports, correspondence and other items. Again a careful selection of papers is most likely to help Counsel to focus the critical issues effectively.
Counsel’s Fees
It is normal practice of Members of Faculty to charge a daily rate for hearings, and in other circumstances to seek a fee in respect of each item of work instructed. Unlike Counsel in England and Wales they do not normally seek a brief fee, i.e. a lump sum for considering the papers prior to a hearing commencing. However, a cancellation fee may be charged where a case has been instructed but does not proceed.
The fees charged by Counsel may vary considerably depending on the nature and complexity of the work and the seniority of the Counsel instructed. Fees may be negotiated at rates representing excellent value for money. Counsel’s fees are always negotiable and those wishing to instruct counsel should first discuss fees with the Clerk who provide guidance and enter into a binding commitment on the amount of fees before instructions are received. All fees quoted are subject to Value Added Tax.
You may find it helpful to consult the Guidelines on the Instruction of Counsel for those with Rights of Direct Access.
Standards of Service
Counsel are skilled in the provision of advice and in advocacy, both written and oral. The Faculty is committed to maintaining the high standards of service which both clients and practitioners are entitled to expect.
The Faculty has a detailed written Code of Conduct (.pdf - 311KB), subject to revision from time to time, and a written set of rules for Disciplinary Rules (.pdf - 101KB) which can be consulted by practitioners if required.
Direct Access Groups
Under the new Direct Access Rules (October 2006), the following groups have been awarded direct professional access status by the Faculty of Advocates:
1. Legal professionals:
(i) Members of the Law Societies of England and Wales and Northern Ireland;
(ii) Non-practising members of Faculty;
(iii) European lawyers registered under the European Communities (Lawyers Practice)(Scotland) Regulations;
(iv) Persons on the register of foreign lawyers held by the Law Society of Scotland;
(v) Qualified conveyancing and executry practitioners in Scotland;
(vi) Persons or bodies qualified to practise law in a jurisdiction other than Scotland who actually do so practise law;
2) Other professionals:
(i) Members of any professional body recognised for this purpose by the Faculty, and any such body itself;
(ii) Parliamentary agents;
(iii) Any person or body on the register maintained by the Office of the Immigration Services Commissioner.
3) Public authorities:
(i) Any person or body subject to complaint to the Scottish Public Services Ombudsman;
(ii) Any public authority in terms of the Freedom of Information (Scotland) Act 2002 or the Freedom of Information Act 2000;
(iii) Any person or body subject to complaint to the European Ombudsman;
(iv) Any public authority under the law of the European Union;
(v) Any person or body acting under law in a governmental, judicial or legislative capacity;
(vi) Members of the British and Irish Ombudsman Association or the International Ombudsman Institute.
4. Other persons and bodies:
(i) Any person or body on the Financial Services Authority Register
(ii) Any voluntary organisation in membership of the Scottish Council for Voluntary Organisations, the National Council for Voluntary Organisations, the Northern Ireland Council for Voluntary Action, or the Wales Council for Voluntary Action
(iii) Any body on the register maintained by the office of the Scottish Charity Regulator or the Central Register of Charities maintained by the Charity Commission for England and Wales
(iv) Any public limited company regulated by the London Stock Exchange
(v) Any community interest company registered as such
(vi) Any trade union or employers association on the list maintained by the Certification Officer
(vii) Any body incorporated by statute which is so established to represent or regulate any trade, business or profession
(viii) The Medical and Dental Defence Union of Scotland, The Medical and Dental Defence Union, and the Medical Protection Society.
(ix) Any person or body, or member of a class, recognised for this purpose by the Faculty.
5. Initial list of bodies recognised under part 2 i):
1. All professional bodies in the United Kingdom which have been awarded a Royal Charter
2. All Designated Professional Bodies under the Financial Services and Markets Act 2000
3. Architects Registration Board of the United Kingdom
4. Army Legal Service
5. Directorate of Legal Services of the Royal Navy
6. Naval Prosecuting Authority
7. Directorate of Legal Services of the Royal Air Force
8. Association of Average Adjusters
9. Association of Taxation Technicians
10. Insolvency Practitioners Association
11. Institute of Indirect Taxation
12. Institute of Chartered Accountants in Ireland
13. Officers of Arms in Ordinary (The Heralds and Pursuivants of the Lyon Court)
14. Incorporated Society of Valuers and Auctioneers
15. Pensions Management Institute
16. Institute of Trade Mark Attorneys
17. The Chartered Insurance Institute or any member thereof
6. Further list of bodies subsequently recognised under parts 2 (i) or 4 (ix):
1. The Society of Messengers-at-Arms and Sheriff Officers and members thereof
2. British Branch of the Society of Trust and Executry Practitioners
3. Faculty Services Ltd
4. Park Home Legal Services Ltd
5. The Association of Commercial Attorneys