Friday, 23 August 2013

Who is that behind my Advocate?

In court its important to be sitting in the right place. There is an interactive civil court scene provided here by the Judiciary of England and Wales ,who also provided the nice illustration of a judge (though he is hearing a criminal case - no red sashes in the Intellectual Property Enterprise Court).

What that judge sees is an Advocate or more for each party and behind them sits a lawyer or some representative from the law firm. In Scotland it has just been announced that they intend to abolish their rule that an agent of the client, normally a solicitor sits behind the advocate in court. It is not an absolute rule in the courts of England. Obviously it does increase costs if there are too many people earning money and doing nothing useful. Nevertheless litigators regulated by IPreg are under a duty to attend or arrange for the attendance of a responsible representative throughout any Court hearing attended by Counsel (3.4 of the Litigators Code). Now clearly in a case where a litigation practitioner is acting as Advocate there is no need and thankfully no duty to have someone to watch your back. It is of course useful to have an ally in court and someone to make notes and pick up the papers you have dropped is convenient. This is an  anomaly between the IPReg rules and the SRA code Chapter 5 which now reduces things to principles rather than prescriptive rules.

Soon we can expect Barristers to get the freedom from their regulators to get down to some real solo litigation but in court his rules currently allow him to satisfy himself that a redundant solicitor or patent agent is uneccessary, or more precisely
706. A self-employed barrister who is instructed by a professional client should not conduct a case in Court in the absence of his professional client or a representative of his professional client unless the Court rules that it is appropriate or he is satisfied that the interests of the lay client and the interests of justice will not be prejudiced. 
Come on IPReg, you seem to be out of line!

3 comments:

Anonymous said...

It would appear that IP Solo's request has had some impact. The IPReg webpage on the litigator's code now states that:

September 2013

IPReg is intending to add Guidance to Rule 3.4 as follows:

“Attendance by a responsible representative under Rule 3.4 will not be required where:

(a) the Court has ruled that such attendance is unnecessary; or

(b) Counsel has confirmed that they are satisfied that the interests of the lay client and the interests of justice will not be prejudiced by the absence of a responsible representative”

Barbara Cookson said...

Well I am impressed by such prompt action. The IPREG page is to be found at this place

Simon Bradshaw said...

It is my understanding that Rule 706 is to be dropped, in that the fully-rewritten Bar Code of Conduct will no longer require that counsel is attended by instructing solicitors at court.

To be honest, in general litigation the rule is generally waived, certainly in smaller cases.