La lógica de la sobreabundancia: la ternura como horizonte de sentido de la nupcialidad

10.36 Except in legal aid cases, there were no statutory provisions which controlled or regulated the fees which advocates might charge.

(b) Professional Guidance

10.37 The Faculty of Advocates did not set any scale of fees and did not offer any indication as to the fees which it was appropriate for advocates to charge.

10.38 The Faculty’s Guide to the Professional Conduct of Advocates contained the following guidance on fees :

“5.2 It is thought that, as the law stands, an advocate is not entitled to sue for his fees unless the solicitor has claimed payment of them from the client and the client has paid them to the solicitor - Cullen v. Buchanan (1862) 24 D. 1132; Keay v. A.B. (1837) 15 S. 748 (note). See also Drummond v. The Law Society of Scotland 1980 S.C. 175.

5.3 Although he may not be entitled to sue for his fees, it is recognised that an advocate is entitled to payment of a reasonable fee for his services. In the absence of express prior arrangement to the contrary, the instructing solicitor impliedly undertakes a professional commitment to pay a reasonable fee. The arrangements between the Faculty of Advocates and the Law Society of Scotland for payment of fees to counsel are published separately, as are the arrangements for payment of fees in Legal Aid cases.

5.4 What is a "reasonable fee" depends on the whole circumstances of the particular case. Unless otherwise stipulated, counsel's fees cover all expenses incurred by counsel in the conduct of the case, such as travelling expenses.

5.5 Fees are normally charged after the work is done. Faculty Services Limited, acting on counsel's behalf, issues a Note of Proposed Fee to the solicitor. The solicitor is entitled to challenge the amount of the fee proposed within the time agreed between the Faculty and the Law Society. Failing such challenge, the solicitor is presumed to agree that the fee proposed is reasonable and comes under a professional obligation to pay it.

5.6 If the solicitor challenges the fee proposed, the matter will normally be resolved by negotiation between the solicitor and counsel's clerk. If they cannot agree, the solicitor and/or counsel is entitled to require that the matter be determined by the Auditor of the Court of Session. The Auditor is entitled to have regard to all the circumstances and is, in particular, entitled to allow a higher fee than would be allowed on party-and-party taxation.

5.7 Except in Legal Aid cases, where fees are regulated by Statutory Instrument, there is no scale of fees nor does the Faculty offer any indication as to the fees which

it is appropriate for counsel to charge. Counsel is entitled to charge his fee on any basis appropriate to the work involved – for example, a composite or "block" fee for all work done, a daily rate, an hourly rate, etc. The solicitor is entitled to challenge the basis of the charge as well as the amount.

5.8 The amount of the fee and/or the basis of charging may be agreed in advance between the solicitor and counsel's clerk. Provided that an unequivocal agreement has been reached, the solicitor is not entitled to challenge it later.

5.9 It is not appropriate for counsel to negotiate fees with his instructing solicitor. This is the function of counsel's clerk. All fees should be paid to Faculty Services Limited. If any fee happens to be paid direct to counsel, counsel must account for it forthwith to Faculty Services Limited. Counsel should not under any circumstances whatever discuss or negotiate fees with or receive fees directly from the lay client. 5.10 Speculative actions. It is permissible for counsel to accept instructions "on the footing that the [client is] unable to meet the expenses of the litigation and that there [will] be no remuneration for [his] services except in the event of success... It has long been recognised by our courts that this is a perfectly legitimate basis on which to carry on litigation and a reasonable indulgence to people who, while they are not qualified for admission to [Legal Aid], are nevertheless unable to finance a costly litigation", per Lord President Normand in X Insurance Co. v. A. & B. 1936 S.C. 225, 238-9. The rules governing the conduct of speculative actions are set out in paragraph 9.6 below. So far as fees are concerned, counsel is only entitled to the fees recovered on taxation from the party found liable in expenses. (The instructing solicitor may include fees to counsel, although not paid, in his account of expenses - see Sim v. Scottish National Heritable Property Co. Ltd. (1889) 16 R. 583 and earlier cases there cited.) Counsel may not agree to act on the basis that additional fees will be paid by the client out of the principal sum recovered in the action ….

5.11 Retainers …. The purpose of a general retainer is to ensure that, during the currency of the retainer, counsel will not accept instructions to advise or appear for any other party in any proceedings involving the client giving the retainer. A special retainer has the same purpose but is restricted to the specific subject matter of the retainer. A general retainer endures for the lifetime of the client and counsel, unless otherwise specified. A special retainer falls after one year if not renewed or, in the case of a depending process, on completion of the case or matter to which the retainer relates. A general retainer falls if the client fails to instruct the advocate retained in any case or matter whatever. A special retainer falls if the client fails to instruct the advocate retained in the case or matter to which the retainer relates. There is no rule as to the amount of the fee payable for a retainer, other than that it must be reasonable in the circumstances.

5.12 Fees for settled or discharged cases. Normally, a fee is only chargeable when instructions have been given and accepted. Where instructions have been given and accepted, an advocate is entitled to charge the full fee for the work instructed even if the case is subsequently settled or the diet is discharged. In addition, where the solicitor knows, or ought in the circumstances reasonably to be aware, that counsel, in order to comply with his obligations under paragraphs 4.6.1-8 above, has kept himself free from other commitments, a fee appropriate to the circumstances may be charged.

Relevant circumstances will include time spent in preparation and the extent to which counsel has been unable to accept other instructions. Counsel may also charge a fee for negotiating a settlement.

5.13 Paragraph 5.12 applies equally, mutatis mutandis, where a case is settled after the hearing has begun. Counsel’s fees are a matter for discussion between the instructing solicitor and counsel’s clerk in the individual case. Advocates’ clerks are available to discuss feeing arrangements with instructing solicitors in advance of the work being done. The level of fee will depend on such matters as the seniority, experience and specialist expertise of the advocate in question and the nature of the piece of work in question, having regard to such matters as its difficulty, the level of responsibility involved, the time taken and any other special features of the case.” 10.39 There was no objection to counsel undertaking work on a speculative or pro bono basis. Counsel might not lawfully agree to act on the basis that he or she would be paid a share of the amount recovered119.

(c) Practice

10.40 Each advocate had a clerk who was available to discuss with solicitors or with direct access professionals the basis upon which the advocate would charge for a particular item of work in advance of any instruction being given and to discuss and agree fees either before or after the work had been done. Clerking services were provided by Faculty Services Limited to advocates who chose to subscribe to the company. Almost all advocates did so. Clerking services within Faculty Services Limited were provided on the basis of “stables” (i.e. groups of advocates who shared a clerk and deputy clerks). There were currently eleven stables, each served by a clerk and between one and three deputy clerks.

10.41 A solicitor or other direct access professional who wished to instruct counsel could contact advocates’ clerks and seek advice from them as to such matters as the availability of a range of counsel, the basis upon which different counsel would charge for a particular item of work and the relative experience of different counsel. The choice of advocate would depend on various considerations, apart from fee levels, including the nature of the work, the seniority and experience of advocate considered appropriate, and (for written work) the timescale within which the work could be done. Once the solicitor (or other instructing professional) had decided to instruct a particular advocate, the basis and level of fees which would be charged could be agreed in advance with that advocate’s clerk. If the level and basis of feeing had not been agreed in advance, the fee could be discussed between the advocate’s clerk and the instructing agent after the work had been done, either before or after the issue of a proposed note of fee.

10.42 The instructing solicitor had a duty to act in the client’s best interests and to advise the client as to the appropriateness of instructing counsel, the advocate who should be instructed and about the level of fees which would or might be incurred. As a relatively informed intermediary, the instructing professional was normally in a better position than the lay client to consider whether or not counsel should be instructed and (having obtained such information as the instructing professional should consider appropriate from advocates’ clerks

119 _{See further below.}

or otherwise) which advocate should be instructed, and to negotiate an appropriate basis and level of fee with the clerk to the advocate instructed.

10.43 The arrangements for the accounting for and recovery of counsel’s fees from solicitors were set out in a Scheme for the Accounting for and Recovery of Counsel’s Fees issued by the authority of the Faculty of Advocates and the Council of the Law Society of Scotland (the full text of which is available at

http://www.advocates.org.uk/2002scheme.html).

10.44 In terms of the Scheme it was open to a solicitor to negotiate and agree the fees to be paid and the basis upon which fees were to be settled with the advocate’s clerk in advance of the work being done. Where an agreement of this kind had been made then, unless the right to taxation had been reserved, the agreement could not be altered nor could the fees charged be taken to the Auditor for adjudication except by subsequent agreement between counsel and solicitor120.

10.45 If the fee to be charged had not been agreed in advance, then following each item of work a note of proposed fee was to be issued. If the solicitor wished to question the fee proposed, he had to inform Faculty Services Limited within 6 weeks. If he felt that the fee was grossly excessive he might refer the matter to the Dean. If, following notification to Faculty Services Limited, the fee could not be agreed between the solicitor and counsel’s clerk, the Auditor of the Court of Session or the Auditor of the appropriate Sheriff court was to adjudicate on what was a reasonable fee. Unless otherwise agreed in advance, this would be on an agent and client, client paying basis121.

10.46 If an advocate were to charge a grossly excessive fee, this could in principle amount to misconduct and be dealt with under the Faculty’s disciplinary procedures.

(d) Rule that advocates may not sue for their fees

10.47 The legal position of advocates in relation to fees was anomalous. Uniquely among professionals, as the law currently stood, advocates were not entitled to sue either the instructing solicitor or client for their fees unless the solicitor had been put in funds for the payment of counsel’s fees122. The rule was based on the fact that an advocate had no contract either with the client or the instructing solicitor but held an office in which he owed duties to the public and to the Court as well as to his client123.

10.48 The rule that advocates might not sue for their fees meant that advocates might not, ultimately, enforce the payment of fees by legal process. They depended on the professional responsibility of those who instructed them for the payment of fees. The rule potentially put advocates at a disadvantage as compared with other professionals, including solicitor

120 _{Paragraph 4(1).} 121 _{Paragraph 5.}

122 _{Batchelor v. Pattison & Mackersy (1876) 3R 914, 918; see also Drummond v. Law Society of Scotland 1980} SC 175. Advocates fees were however specifically included in the Late Payment of Commercial Debts (Scotland) Regulations 2002 (SSI 2002/335) which implemented the terms of an EC Directive on combating late payment in commercial transactions (Directive 2000/35/EC of 29 June 2000). The Regulations applied the terms of the Late Payment of Commercial Debts (Interest) Act 1998 to fees for professional services payable to members of the Faculty of Advocates in the same way as to a contract for the supply of services.

advocates. The principle that counsel had no contractual relationship either with client or instructing solicitor was not, as a matter of logic, incompatible with the notion that counsel should have an enforceable right to payment of fees. The rule would require to be changed if advocates were to be permitted to accept instructions directly from lay clients.

(e) Retaining fees for advocates

10.49 The Faculty’s Guide to the Professional Conduct of Advocates sets out arrangements for retaining fees (at paragraphs 5.11 and 5.12, set out above). The Group concluded that retainers might raise an issue about equal access to justice, but not about competition.

(f) Office of Fair Trading view

10.50 The OFT noted that the role of the clerk generally appeared to involve the negotiation of fees on behalf of a number of advocates. The OFT believed that it was likely to arise that the advocates in question would be practising within the same specialist area and might be in direct competition with one another. Given that role, it would be important to ensure that, in carrying out those duties, clerks were fully aware of each advocate’s responsibility under competition law. As independent undertakings, advocates should be competing on price for the supply of their services and were obliged to ensure that, through the medium of the clerk or otherwise, competition on price was not restricted or distorted.

PART IV : FUNDING OF LITIGATION