As a solicitor qualified and working in Scotland, I follow a number of other members of the Scottish legal profession on Twitter. Not only does this help keep me up to date with what is going on in the sector, it also allows me to see what issues are capturing the interest of practitioners and the public alike.

In the last few days, I have noticed a particular buzz on twitter around one particular article posted on the BBC News website on 29 March 2019. Multiple commentators were encouraging their followers to read it, and suggesting that it might help clear up confusion about the role a solicitor, solicitor-advocate or advocate plays in defending a client in court.

I naturally followed the link to the article. The story concerned the recent well-publicised and tragic case of Alesha MacPhail, in which the accused, Aaron Campbell, ultimately admitted his guilt after being found guilty by the jury but prior to being sentenced. In the article, the advocate who had represented Mr Campbell during the trial explained that he had been grateful to the judge in the case for point out during sentencing that:

"... Counsel do not make up defences but present the case on the basis of their instructions."

Speaking after the hearing, the advocate, Brian McConnachie QC, said:

"I am sure there are plenty of people who would take the view that it is the solicitor or the advocate who decides what the defence is going to be and makes it up for the accused and, of course, that could not be further from the truth."

The BBC article also reported that Mr McConnachie had stressed that the client alone, despite the advice of their lawyer, has the final say on whether they plead guilty or not.

The role of a lawyer

Whilst these comments were given in the context of a criminal case, they also apply to civil court actions, for example those involving breaches of contract. A lawyer, whether they are a solicitor, solicitor-advocate or advocate, will not and cannot make up a defence for their client where there is none. Likewise, they can give their client advice, but it is the client's decision alone as to whether or not they follow that advice. Once the client has given their lawyer their instructions, the lawyer then must do their best to represent their client's interests, provided that does not involve misleading the court.

For more information on how our lawyers give clients a voice in court, see this video from Tony Jones KC, one of our in-house solicitor advocates, or get in touch with your usual Brodies contact.


Fiona Chute

Senior Associate