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Title: Rights and duties of advocates in litigation in Scots law
Author: Carey Miller, D. L.
Awarding Body: University of Aberdeen
Current Institution: University of Aberdeen
Date of Award: 1978
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This thesis aims to establish, from the diverse sources, the rights and duties of an advocate in court and relevant related matters in Scots law. The primary investigation is directed to the advocate of the Faculty of Advocates but the position of a solicitor/advocate is also considered. To provide a basis for comparison and criticism the system of the United States of America is considered. The main conclusions reached are as follows: (1) The duty to justice is a fundamental concept with far-reaching implications for most aspects of an advocate's rights and duties. There is a need for the duty to justice to be clarified in Scots law and recognised as an aspect of adjectival law relevant to the optimum functioning of the judicial process and fundamental to the dichotomy inherent in the advocate's role. (2) In modern law the question of the existence and identification of a contract between counsel and client is unimportant in determining the advocate's rights and duties but it is important to recognise the peculiar features of the relationship. (3) There is no justification for any difference between the powers and rights of counsel and those of a solicitor/advocate in the conduct of a client's case. The near absolute power of counsel to act according to discretion in all judicial and extra-judicial aspects of a case goes too far. (4) An advocate owes a duty to his client to act with reasonable care and skill and the blanket immunity from liability of Rondel is not binding in Scots law. The leading Scots case of Batchelor lays down no more than a partial immunity where an advocate acts bona fide according to judgment. The possibility remains in Scots law for the application of the ordinary principles of negligence which are capable of balancing the interests of the client and the public interest in the advocate's conduct of his office. (5) The Rules as to Retainer Fees go too far in giving effect to the obligation to act where counsel is engaged by one party when he has already represented the other party at an earlier stage in the litigation. This has potentially undesirable consequences in view of the obligation of confidentiality to the former client and the obligation of giving proper attention to the case of the present client.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available