advocate

advocate

[v. ad-vuh-keyt; n. ad-vuh-kit, -keyt]
advocate: see attorney.

An advocate is one who speaks on behalf of another person, especially in a legal context. It is used primarily in reference to the system of Scots law, Anglo-Dutch law, Scandinavian and Israeli law. Implicit in the concept is the notion that the represented lacks the knowledge, skill, ability, or standing to speak for themselves. The broad equivalent in many English law-based jurisdictions is "barrister".

Advocates in Scotland

Advocates, members of the Faculty of Advocates, are counsel who are entitled to present cases in the supreme courts of Scotland: the Court of Session and High Court of Justiciary.

Faculty of Advocates

Advocates are regulated by the Faculty of Advocates in Edinburgh. The Faculty of Advocates has about 750 members, of whom about 460 are in private practice. About 75 are Queen's Counsel. The Faculty is headed by the Dean of the Faculty who, along with the Vice-Dean, Treasurer, Clerk are elected annually by secret ballot. The Faculty has a service company, Faculty Services Ltd, to which almost all advocates belong and which organises the stables and fee collection. This gives a guarantee to all newly-called advocates of a place. Until the end of 2007 there was an agreement with the Law Society of Scotland, which is the professional body for Scottish solicitors, as to the payment of fees, but this has now been abrogated by the Law Society. It remains the case that advocates are not permitted to sue for their fees, as they have no contractual relationship with their instructing solicitor or with the client Their fees are honoraria.

Advocates wear wigs, white bow-ties (or falls in the case of senior counsel), and gowns as dress in court. sd

Independent working

Advocates do not operate in chambers; they are entirely independent, although organised in eleven 'stables' for administrative purposes, and work out of the Advocates Library in Parliament House where the Court of Session is situated, in a similar way to barristers in the Republic of Ireland and Northern Ireland. The High Court of Justiciary, where advocates plead criminal cases, is situated across the Royal Mile from Parliament House.

Advocates do not act directly for members of the public, taking instructions from a solicitor. Since October 2006, however, direct access by others has been liberalised, and advocates can now accept instructions directly from an individual or organisation in four main categories - legal professionals, other professionals, public authorities and a wide range of other individuals and bodies. The list includes lawyers from outside Scotland, voluntary organisations, any person or body subject to complaints by the Scottish Public Services Ombudsman, any public authority under EU law, recognised charities and voluntary organisations, public limited companies regulated by the London Stock Exchange and anyone acting in a governmental, judicial or legislative capacity

Becoming an advocate

The process of becoming an advocate is referred to as devilling. All Intrants will hold an LL.B. (Bachelor of Laws) and the Diploma in Legal Practice qualifying them as solicitors or be members of the Bar in another common law jurisdiction.

Devilling

Devilling, as the period of pupillage or training to become an advocate is generally known, lasts between eight and nine months, and comprises a mix of skills training courses and time spent working with a devilmaster. The compulsory skills training courses, are spread across the devilling period and last for about ten weeks in total. For the balance of the period of devilling, devils work closely with their devilmasters.

All devils have a principal devilmaster who is a practising member of the junior bar of at least seven years standing, and working primarily in civil practice. Devils also spend part of the time with another devilmaster practising in the criminal courts, and many devils spend a short period of time with a third devilmaster working in a different aspect of civil work from their principal devilmaster. All devils and devilmasters are issued the current edition of the Faculty's Devil's Handbook.

In order to take a devil, a devilmaster must be approved by the Dean of Faculty. The Clerk of Faculty maintains a list of approved devilmasters, who may be contacted by email or via the Clerk's office.

Devils are expected to attend court with their devilmasters, and to attend consultations with solicitors instructing their devilmaster and with the solicitors' clients. A devil will also discuss the preparation and presentation of the cases in which their devilmaster is involved and will be required to draft written pleadings and opinions.

During the period of devilling, devils also carry out work for the Free Representation Unit. This is part of the Faculty's commitment to providing access to justice for everyone. The Free Representation Unit enables devils to provide advice and representation to clients of Citizens Advice Bureau from across Scotland.

Admission to the Faculty of Advocates

At the end of the devilling period, a devil's admission to the Faculty is dependent on certification by the principal devilmaster that the devil is a fit and proper person to be an advocate, and that the devil has been involved in a wide range of work in the course of devilling. A devil's competence in a number of aspects of written and oral advocacy is assessed during devilling, and if a devil is assessed as not to be competent, they will not be admitted to the Faculty. Further details of this process can be found in the assessment section.

Recent developments

In recent years, more advocates have come to the Scottish Bar after some time as solicitors, but it is possible to qualify with a law degree, after a year's traineeship in a solicitor's office and almost a year as a 'devil', or apprentice advocate. There are exceptions for lawyers who are qualified in other European jurisdictions, but all must take the training course as devils.

Until 2007, a number of young European lawyers were given a placement with advocates under the European Young Lawyers Scheme organised by the British Council. They are known as 'Eurodevils' in distinction to the Scottish 'devils'. This scheme has now been withdrawn by the British Council.

Lawyers qualified in other EU states (but not England and Wales) may have limited rights of audience in the Scottish supreme courts if they appear with an advocate, and a few solicitors known as 'solicitor-advocates' have rights of audience, but for practical purposes advocates have almost exclusive rights of audience.

Some well-known advocates

Some well known Scottish advocates in the past were Sir Walter Scott, Alexander Boswell, James Boswell, David Dalrymple, Robert Louis Stevenson, Henry Home and Alexander Wedderburn. Others, at the present day , include Alastair Darling, Menzies Campbell, Malcolm Rifkind, Desmond Browne, Donald Findlay,and Ian Hamilton.

Advocates in the Channel Islands

Advocates, properly called Advocates of the Royal Court, are the only lawyers with rights of audience in the Channel Islands. To become an advocate, one has to possess a valid law degree or diploma, plus a qualification as an English barrister or solicitor, or a French avocat. They must then study for the Guernsey or Jersey Bar. In Guernsey, three months of study of Norman law at the Université de Caen is required; this is no longer the case in Jersey. Guernsey Advocates dress in the same way as barristers, but substitute a black biretta-like toque for a wig, while those in Jersey go bare-headed. Advocates are entitled to prefix their names with 'Advocate'; e.g. Mr Tostevin is called to the Guernsey Bar and is henceforth known as Advocate Tostevin.

Advocates in Scandinavia (Denmark, Norway and Sweden)

The Scandinavian countries have a united legal profession, which means that they do not draw a distinction between lawyers who plead in court and those who do not. In order to practice law, the candidate must have a legal degree, that is, completed ca. 5-6 years of legal studies, and in addition worked for some time (around 2 years) under the auspices of a qualified advocate and have some experience from court. When qualified, the candidate may obtain a license as an advocate (in all the Scandinavian languages: Advokat).

In English, the Scandinavian title of advocate is interchangeably also translated as barrister, lawyer or attorney-at-law.

Advocates in England and Wales

In England and Wales Advocates were counsel in the ecclesiastical courts. Barrister is the usual title for advocates in England and Wales, though Solicitor Advocates may also play this role.

Advocates in India

In India, the law relating to the Advocates is the Advocates Act, 1961 which is a law passed by the Parliament and is administered and enforced by the Bar Council of India. Under the Act, the Bar Council of India is the supreme regulatory body to regulate the legal profession in India and also to ensure the compliance of the laws and maintenance of professional standards by the legal profession in the country. For this purpose, the Bar Council of India is authorized to pass regulations and make orders in individual cases and also generally.

Also, under the Act the different structure has been provided. Each State has a Bar Council of its own whose function is to enroll the Advocates willing to practice predominately within the territorial confines of that State and to perform the functions of the Bar Council of India within the territory assigned to them. Therefore each law degree holder has to get enrolled with a (and only one) State Bar Council in order to be authorized to practice in India. However enrollment with any State Bar Council does not restrict the Advocate from appearing before any court in India even though it is beyond the territorial jurisdiction of the State Bar Council with which he is enrolled.

The advantage with having the State Bar Councils is that the work load of the Bar Council of India can be divided into these various State Bar Councils and also that matters can be dealt with locally and in an expedited manner. However for all practical and legal purposes, the Bar Council of India retains with it the final power to take decisions in any and all matters related to the legal profession on the whole or with respect to any Advocate individually, as so provided under the Advocates Act, 1961.

The process for being entitled to practices in India is twofold. First, the applicant must be a holder of a law degree from a recognized institution in India and second, must pass the enrollment qualifications of the State Bar Council where he/she seeks to get enrolled with. For this purpose, the Bar Council of India has an internal Committee whose function is to supervise and examine the various institutions conferring law degrees and to grant recognition to these institutions ones they meet the required standards. In this manner the Bar Council of India also ensures the standard of education required to be meted for practicing in India are met with. As regards the qualification for enrollment with the State Bar Council, while the actual formalities may vary from one State to another, yet predominately they ensure that the application has not been a bankrupt /criminal and is generally fit to practice before courts of India.

Enrollment with a Bar Council also means that the law degree holder is recognized as an Advocate and is required to maintain a standards of conduct and professional demeanor at all times, both on and off the profession. The Bar Council of India also prescribes "Rules of Conduct" to be observed the Advocates in the courts, while interacting with clients and even otherwise.

All Advocates in India are at the same level and are recognized as such. Any distinction, if any, is made only on the basis of seniority, which implies the length of practice at the Bar. As a recognition of law practice and specialization in an area of law, there is a concept of conferral of Senior Advocate status. An Advocate may be recognized by the Judges of the High Court (in case of a Advocate practicing before that High Court) or by the Supreme Court (in case of the Advocate practicing before the Supreme Court). While the conferral of Senior Advocate status not only implies distinction and fame of the Advocate, it also requires the Senior Advocate to follow higher standards of conduct and some distinct rules. Also, a Senior Advocate is not allowed to interact directly with the clients. He can only take briefs from other Advocates and argue on the basis of the details given by them.

Further, under the Constitutional structure, there is a provision for elevation of Advocates as judges of High Courts and Supreme Court. The only requirement is the Advocate must have a ten years standing before the High Court(/s) or before the Supreme Court to be eligible for such. (Article 217 and 124 of the Constitution of India for High Courts and Supreme Court respectively)

Advocates in Pakistan

Four levels of Advocate exist in Pakistan:

Advocate

The lowest level is the Advocate, who is Eligible to practice in the district courts or lower. One can qualify as an Advocate after completion of a law degree, six months pupillage under an Advocate in his/her chambers and thereafter the Bar Council of the relevant province examine him/her that he is fit or not to become as an Advocate. After passing the interview/examination before the provincial Bar Council, the Bar Council will issue him/her the licence for appearing before the Court.

Advocate High Court

Advocate High Court is the second level, and is eligible to practice in the High Courts of Pakistan and below. A license is obtained after successful completion of two year's practice in the lower courts by application which is reviewed by a body of High Court Judges headed by the respective provincial Chief Justices and the relevant provincial Bar Council. Most applications after successful completion of the requirement are accepted.

Advocate Supreme Court

Advocate Supreme Court is the third level. After successful completion of ten years practice at the High Courts by application to the Pakistan Bar Council and reviewed by a panel of Supreme Court Judges headed by the Chief Justice of Pakistan. (Before 1985 the requirement was successful completion of five years practice in the High Courts of Pakistan.) Over fifty percent of the number of applications after successful completion of the requirement are accepted. An unsuccessful application in one year does not bar the candidate from re-applying in the next judicial year.

Senior Advocate Supreme Court

The highest level is the Senior Advocate Supreme Court. It is Pakistan's title equivalent to Queen's Counsel in the United Kingdom.

After at least fifteen years practice by invitation by or an application to a panel of Supreme Court Judges headed by the Chief Justice of Pakistan. Very few applications are accepted and even fewer invitations are made. Attorney Generals are invited by the Supreme Court on appointment to the office. So are some notable High Court judges who upon retirement choose to practice in the Supreme Court where they are still eligible to do so.

See also

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