The English and Welsh bars may be waiting to see if there is a ‘big bang’ after Clementi, but for the Scottish bar its biggest explosion for more than a generation has already taken place.
Scottish advocates – the equivalent of barristers in England and Wales – are undergoing a massive shake-up in the way they conduct their business and market themselves. Under the changes Scottish advocates are able to select members of their stable (the equivalent of chambers) and implement their own marketing campaigns, while specialist sets are now also allowed.
It is the most fundamental change to the Scottish legal market to occur in more than three decades and will bring the system closer in line with the English one.
The Faculty of Advocates
As far back as the 16th century, joining the Scottish bar meant becoming a fully fledged member of the Faculty of Advocates, the equivalent of the English Inns of Court, which gives admittance to practise as an advocate before the Scotland’s courts.
However, over the centuries the Faculty of Advocates became more than just a membership body and also began to service the administrative needs of the advocates. By the early 1970s the faculty had established Faculty Services Limited (FSL), which provides clerking services and marketing to almost all counsel in Scotland for an annual fee. This monopoly is in direct contrast to the clerking system in England and Wales.
Advocates in Scotland have, meanwhile, historically been divided into 10 different stables, which were named after the senior clerk who assisted them. But, unlike chambers, advocates were appointed to a stable by the faculty regardless of specialism.
However, the mini ‘bang’ that stables have undergone in the past seven months means that specialist sets are now allowed.
This transformation followed the announcement last October that two FSL-allied counsel, advocate John Carruthers and John Campbell QC, had decided to split from the service to launch English-style chambers Oracle, which will open its doors in May.
The new chambers will be the first of its kind for half a century.
Carruthers says the pair decided to break away because the traditional nature of the Scottish bar did not allow for a more business-minded approach. “In England things are very dynamic and very competitive and that’s just not the same in Scotland,” he says.
A call for change
The revelation of Oracle’s planned launch led to much disquiet among the members of the faculty, with many calling for the archaic regulations governing the way stables do business to be addressed.
At least five stables have been lobbying the faculty to allow sets to run their business with far greater autonomy. Competition from solicitor-advocates, as well as from barristers from south of the border, has also been a major factor in why the 460-strong membership wanted change.
But Janys Scott, the director of Murray Stable and a director on the FSL’s board, says it would be impossible to reform “the core service model” offered by the FSL.
“People have different ideas about the provisions of services – we have different ideas about the marketing and how we should be in touch with it,” says Scott. “So it would be near impossible for the Faculty Services to change to make everyone happy.”
Nevertheless, the faculty yielded and last November it sanctioned stables to devolve from FSL.
Under the new system the stables are free to choose their members and to become specialist sets if they so wish.
The new devolved sets will be able to implement their own marketing campaigns in the same way as English and Welsh chambers. However, the clerking services will continue to be run by FSL.
Susan O’Brien QC, chair of FSL, says: “Faculty Services now considers that one size does not fit all. Advocates advising corporate clients need different services from their colleagues who are appearing in the criminal courts. This is why FSL devised a system which will allow each stable a measure of autonomy.”
A new era
Westwater Stable last month (19 March) became the first set to devolve in what some commentators have called “the most fundamental change to hit the be-wigged end of the [Scottish] legal profession in its 500-year history”.
Westwater, which organises the work of 48 practising counsel, now allows for non-solicitors to have direct access to advocate services.
Previously only Scottish solicitors, almost exclusively, gave instructions, but for devolved stables this now includes solicitors from elsewhere in the UK, as well as registered European lawyers.
Nick Ellis QC, the director of Westwater, says the members of his set will now be able to deliver a much better level of service.
“With devolution, the stable will in many ways regulate itself,” Ellis says. This has so far involved drafting a ‘constitution’ for the stable to set common standards to meet the needs of its members and clients.
Westwater will continue to make the same payment to FSL, but will decide on whether the stable’s counsel need to make additional payments for marketing or more administrative staff.
More stables are expected to follow suit shortly, with the hottest tip on Murray Stable as being the next likely contender.