How to Instruct Counsel
Information on instructing an Advocate for lawyers outside of Scotland
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 their areas of practice in the searchable database and solicitors may find it useful to search through this. Some counsel have particular expertise in these areas but the listings are not comprehensive. The individual members pages give more information about each advocate. 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 we cannot provide suitable counsel for your particular case we would be pleased to check the availability of counsel in other stables.
The Scottish Bar comprises approximately 460 advocates arranged into 11 stables based in Parliament House, all administered by Faculty Services Ltd.
As a generality, Counsel in Scotland may accept instructions from solicitors outwith Scotland only in matters in which no litigation in Scotland is contemplated or in progress. Counsel can consult and advise verbally or in writing but for proceedings in the Court of Session, Sheriff Court or District Court a Scottish solicitor must be engaged. The Law Society of Scotland can offer a range of solicitors firms with the necessary experience. The Clerks may also be able to assist you in finding appropriate representation.
However, counsel can act directly in the conduct of proceedings before any public enquiry, tribunal or other forum before which the instructing agent may have a right of audience. This includes all forms of public enquiry, Lands Tribunal, Employment Tribunal, Immigration 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.
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.
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
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.
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.
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. For private work, fees may be negotiated at rates representing excellent value for money. For legally aided work, fees are subject to statutory regulation. In appropriate cases Counsel may be prepared to act on a speculative basis where neither private funding nor Legal Aid is available. In such cases Counsel will not be entitled to a fee unless the action is successful either by way of a negotiated settlement or a Court decree.
Detailed arrangements relating to Counsel’s fees are embodied in a formal Scheme issued by the Faculty and the Law Society of Scotland in 2002. If a fee charged is considered to be unreasonable in the circumstances, the matter can be referred to the Auditor of the Court of Session for independent arbitration.
Those unfamiliar with the instruction of counsel may find it helpful to consult the Guidelines for Solicitors on the Instruction of Counsel.
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-630kB], subject to revision from time to time, and a written set of rules for Disciplinary Rules [pdf-103kB] which can be consulted by practitioners if required.