Instructing Counsel

Advocates offer specialist legal representation and advice to clients of solicitors and of members of certain other professional bodies. Thus practitioners in Scotland, in the cities and in rural areas alike, are able to serve their clients by drawing on a pool of independent lawyers who are both skilled court pleaders and also advisers on a wide range of legal problems both general and specialist.

How to Instruct Counsel

Our Advocates can provide advice and representation in court and outside court. We can assist in litigious and non-litigious situations. We can provide you or your clients with good quality legal advice and representation in any situation relating to Scots Law.

Advocates are usually instructed on behalf of clients by practising solicitors who are members of the Law Society of Scotland.

For advice about instructing or selecting Counsel we recommend contacting one of our clerking team as the first step. They will advise on the choice of Counsel and can discuss fees and timescales for the work. They will also advise on what is needed to give the selected Advocate proper instructions.

Guidance on Fees

This guidance is primarily intended for those who may be unfamiliar with the feeing practices of the Scottish Bar, such as English Solicitors instructing Scottish counsel in Employment matters, but is also of general application.

The guidance is intended to supplement that provided on the Faculty of Advocates’ website under the heading of Direct Access: Standard Terms of Instruction. Clause 1.1 of the Standard Terms of Instruction provides that in respect of all instructions Advocates will conduct themselves in accordance with Faculty’s Professional Code of Conduct. Advocates will be expected to conduct themselves to the same level and standard in respect of any appearance work for which they are instructed.

In Scotland, we do not traditionally operate a “Brief Fee” system but if you or your clients would prefer to use that please ask us.

Typically, we quote a daily rate for counsel conducting a case (the same rate to apply to each day), together with a figure for any consultation/conference call.

Unless otherwise stated the daily rate includes a typical amount of preparation but if counsel anticipates additional exceptional preparation you would be advised of that on their receipt of papers.

The only other fees chargeable would be for separately instructed items of work such as Notes, Opinions or drafting.

Direct Access

Some persons and organisations can now instruct Counsel directly under arrangements entered into by the Faculty of Advocates known as direct access.

A list of persons and organisations with direct access arrangements is available here. Our members are happy to accept direct access instructions. If you have any question about this please contact our clerking team.

The Instruction Process

Whether you are instructing counsel for the first time or checking availability and likely fees in an ongoing matter, our clerking team is here to guide you.

1. Initial contact

We encourage agents first to telephone or email us so that we can check counsel’s availability and mark any hearing in their diaries.

2. Letter of instruction

We then require a “letter of instruction” confirming your intention to instruct counsel and what work you wish them to carry out. This can be an email. On receipt and consideration of the instructions counsel then makes a professional commitment to undertake the work outlined where the instructions have been accepted, always subject to the operation of the cab rank rule as outlined in clause 8.5 of the Code of Conduct. No fee is automatically incurred at this stage.

3. Receipt of papers

Agents are encouraged to send papers sooner rather than later simply to let counsel see what the case involves, what preparation is necessary and in case any input is required from a Scottish perspective. Again, receipt of papers does not automatically incur a fee but lets counsel see what they are committing themselves too.

4. Cancellation

The Clerks will agree cancellation fees in advance on a case by case basis based on the length of any Hearing. We base these calculations on a sliding scale which typically would apply to the week before a Hearing set down for several days. A typical example would be a fee of 2 days for a case set down for 4 days going off on day 1, down to a proportion of one day’s fee (depending on how much preparation has been done) if the case went off 7 days before the start date. Such an approach is taken in recognition of the fact that counsel will in a typical case have engaged in work to prepare a case to be ready for the Hearing in question and, unless otherwise agreed, the preparation work is not otherwise remunerated as no brief fee is charged upon immediate receipt of papers by counsel. The approach also recognises that counsel, in order to fulfil their commitment to the case, will normally have been unable to accept any alternative instructions for the anticipated duration of the case.

Contact Our Clerking Team