David Bartos advocate, Edinburgh, Scotland

FAQ Category - Advocate Services - For Other Lawyers

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What is an advocate ?

An advocate is a type of lawyer working in Scotland. Scottish lawyers are divided into –
•    solicitors, also known as “agents” (about 9 500 in practice)
•    advocates, also known as “Counsel” or “members of Faculty” (about 460 in practice)
Senior advocates are known as “Queen’s Counsel”, “Silks”, “Seniors” or “QCs”. In general an advocate must have at least 13 years of practice behind him or her before they can apply for that status.

All advocates must be members of their professional body “The Faculty of Advocates”.

They are all self-employed sole lawyers and, in order to provide maximum independence, objectivity and freedom from conflict of interest, are not allowed to join together in firms or companies.

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What is the role of an advocate ?

Advocates are used for –
•    their specialist opinions on any legal question whether or not a dispute has actually arisen
•    advice on the strength and weaknesses of cases
•    their specialist pleading skills in putting a client’s case to a court, tribunal or other adjudicating body both by written and oral pleading.

The nature of advocates’ work means that they develop current knowledge and
courtroom instinct in their fields, so that their advice is particularly reliable. Advocates are often resorted to in a dispute or situation with an international element.

All advocates have rights to appear before any court or tribunal in Scotland where a person is entitled to be represented and also before the House of Lords, the Judicial Committee of the Privy Council, the Court of Justice of the E.C. (E.U.) and the European Court of Human Rights.

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Do I need a Scottish solicitor ?

For opinion and advisory work, the revisal of documents and appearances before any tribunal, inquiry or other adjudicating body which is not a court you can instruct me direct. Only in order to instruct me to appear in court or to draft documents for lodging in court, will you need to ask a Scottish solicitor to instruct me.

Having said that I can do much work on direct instruction which can in turn assist you to prepare in the most efficient way for any possible court proceedings.

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What is a stable ?

A stable is a group of advocates who use a practice manager or one or more clerks for their administration. It is not a partnership or company. Most practice managers or clerks, and therefore stables are provided to advocates by Faculty Services Ltd. Unlike English chambers most stables do not have separate premises. My stable is known as Terra Firma Chambers.

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How do I go about instructing you ?

There is no mystery. First of all it may be helpful if you telephone me on +44 (0) 131 226 5071 or send me an e-mail to give a general outline of the situation. 

You should send a letter, fax or e-mail of instruction to my practice manager Emma Potter of my stable Terra Firma Chambers setting out –
•    the facts of the case or legal matter (bearing in mind that I know little nothing about it);
•    what the client (or you) are seeking to achieve;
•    what you wish me to do (including any specific questions you wish me to answer);
•    any time limit for the job

You should also enclose (preferably copies of) all relevant documents (e.g. –
•    correspondence,
•    expert reports,
•    precognitions/witness statements,
•    written pleadings,
•     court productions,
•    lists of witnesses and documents)
arranged under these headings and in chronological order. A lever arch file or folder is a great help in organizing documents. All of this saves time and money and avoids confusion.

By instructing me you agree to the Standard Terms of Instruction.

If I can’t do the work within a reasonable time or I am not available on the relevant date, my clerk or deputy clerk will contact you to explain the difficulty and suggest alternative solutions.

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Can I meet you to explain the case and receive advice ?

Yes, this is done at a meeting known as a “consultation”. As an advocate I can and do consult throughout Scotland and at the Advocates’ consultation rooms at 142 High Street, Edinburgh. I can consult in England and abroad. I have consulted with video and audio conferencing facilities.

In a land dispute it can be particularly useful to consult at the site of the dispute.

It is important that some form of agenda for the consultation is fixed beforehand so that I can prepare for it properly. The client or an expert witness may be present at the consultation.

The consultation is booked by phoning Terra Firma Chambers.

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What are the benefits of a consultation ?

There are many. The main benefits are –

•    the client and I can meet each other
•    the client can ask me questions direct
•    I can obtain often important information from the client direct which might not otherwise emerge
•    The client’s evidence can be clarified and misunderstandings avoided
•    If the consultation is with an expert witness I can obtain information and clarification from the expert which might otherwise be difficult to obtain through letters and assess him
•    If the client is present with an expert witness he can assess the expert witness
•    If the consultation includes a site inspection, the dispute can be pictured more readily and potential lines of investigation revealed or discarded

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How much will it cost ?

Advocates often charge lower fees than solicitors for equivalent time. The reason is that advocates do not have to pay for an office or for employees. They work for themselves with no need to keep associates employed, and, as specialists in their field, they often need to do less research to get the right answer.

What I will charge depends on the nature, complexity, urgency and value of the work and the time taken up by it. The idea is that the fee will be reasonable taking those factors into account. Where the work is the preparation for and appearance at a hearing it is normal to charge a daily rate for the hearing which includes all preparation. Fixed fees can be negotiated.

Please contact my practice manager Emma Potter for a better idea of the cost of proposed work.

In exceptional cases I may be able to act in court proceedings only on a “no win no fee” (speculative) basis with increased fees in the event of success to reflect the risk of carrying out substantial work for no payment. For this to happen the client would have to be ineligible for legal aid and be unable to afford the litigation. In fairness I would expect that you would be acting also on a “no win no fee” basis.

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What is the position regarding payment of fees ?

You as an individual, and the company, or other body on behalf of which you instruct me, have a joint and several professional obligation to pay my fees within 21 days of the issue of my invoice from Faculty Services Ltd, unless otherwise agreed. See the Standard Terms of Instruction.

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What are your standards of service ?

I follow -

-   the Guide To the Professional Conduct of Advocates which sets out my professional duties as an advocate

-   the Direct Access Rules (Oct. 2006) of the Faculty of Advocates and the Standard Terms of Instructions, both of which adapt the Guide to Professional Conduct to work from non-Scots solicitors.

It is better for all concerned to agree a timescale for the completion of work. If a timescale for completion of the work has not been agreed or indicated at the point of instruction, my aim is to complete the work within 2 weeks of receipt of instructions. I say "aim" because in all honesty and with maximum effort it may not be possible to do this. There may be further information that I have asked for which has not been obtained within that period. There may be other urgent work which requires to take precedence (for details see the Guide to Professional Conduct, paragraph 8. 4 and following). The work itself (or the other work) may be more time consuming and complex than anticipated. More haste may be less speed. There may be other difficulties.

If you are expecting to hear from me and no timescale has been agreed, I my practice manager or clerk will be in touch at the end of the 2 weeks to indicate the situation. If the matter cannot wait, I am happy to pass the work back to my clerk for passing on to another advocate of your choice. My practice manager or her clerk can advise of suitable alternatives.

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If I am unhappy with the service how do I complain ?

First of all let me know. It may be something that has arisen through misunderstanding and can be dealt with easily. If the matter is complex I may ask you to put the complaint in writing. If you remain dissatisfied, the Faculty of Advocates, my professional body, has a formal complaints procedure.

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If I am unhappy with the level of fees charged what do I do ?

You should let my clerk or deputy clerk know in writing as soon as possible and in any event within one calendar month of the issue of the invoice. Further details are contained in the Standard Terms of Instruction.

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