The appointment of solicitor-advocates can create a conflict of interest and leave defendants who are facing serious crimes lacking the appropriate level of representation, an appeal court judge in Scotland has warned.
Judge Lady Dorrian made her comments in an appeal against a murder conviction. Appellant Ahmad Yazdanparast claimed that his representation by a solicitor-advocate was defective and that he was not able to select appropriate representation.
Dorrian dismissed his appeal on all points, but said she had ‘real concerns’ that obligations to give the accused a free and informed choice of representation were not properly met.
This applied particularly as the solicitor-advocate instructed to defend Yazdanparast was a senior member at Belmonte & Co, where the instructing solicitor was employed.
Dorrian said that concerns that solicitors may find it difficult to give wholly objective advice when choosing a defender when a partner at their firm is a solicitor-advocate are ‘live ones in this case’.
‘The difficulties which might be faced by someone in such a position "instructing" his senior partners are obvious,’ she said.
‘It is nowhere indicated that robust procedures are in place to enable the instructing solicitor to carry out his job entirely independently without being subjected to indirect influence which may arise from the nature of the relationship between then.’
She added that the current rules on the conduct for solicitor-advocates ‘do nothing to safeguard an accused from being defended by one whose reach exceeds his grasp’.
Rules need to be amended, she said, so as to ensure that those facing the most serious charges are given representation with the commensurate level of experience.
Dorrian also criticised both the instructing solicitor and a solicitor-advocate assisting on the case for using incorrect terminology, which she said causes 'considerable concern'.
These included confusing the terms ‘counsel’ and ‘solicitor-advocate’, and the use of the term ‘senior solicitor-advocate’ which she said had no meaning beyond the fee provisions of the Scottish Legal Aid Board.
‘If the instructing solicitor is himself confused as to the nature and status of these respective roles, how much greater scope for confusion is there on the part of an accused person?’ she asked.