8.3 When is an Advocate bound to accept instructions?

8.3.1 It is an important principle of practice that an Advocate should not, when available to accept instructions, refuse to accept instructions to act for any litigant before Scottish Courts which are accompanied by payment of a reasonable fee or the obligation of a Scottish solicitor to pay such a fee.

8.3.2 Advocates who are holders of the office of Advocate depute for the time being are not available to be instructed for the defence in criminal cases.They are available for instruction in civil matters, although their ability to accept instructions is constrained by the requirement that in general their duties in the Crown Office must take precedence over other work.The position of adhoc Advocates depute has no implications for the availability of Counsel to be instructed otherwise.

8.3.3 The post of standing Counsel to a government department or agency may require that Counsel not be available to be instructed against that department or agency, but does not necessarily do so.The position of Standing Counsel has no implications for the availability of Counsel to be instructed otherwise, nor grants any priority of instruction for the purposes of rule 8.5 below.

8.3.4 An Advocate should not refuse to accept instructions on :-

（i）unacceptable discriminatory grounds such as race, religion, gender or sexual orientation; or

（ii）grounds of mere personal preference or personal dislike of the potential client or his views; or

（iii）grounds that do not have some other reasonable justification.

8.3.5 An Advocate would normally be expected to be available to accept instructions to appear before Scottish Courts at times when the Court of Session is not in recess or vacation.It is however accepted that there may be circumstances such as maternity, paternity, vacation, illness or other personal circumstances which mean that an Advocate may not be available to accept any or some instructions.

8.3.6 The Dean may in exceptional circumstances require an Advocate to accept instructions to appear in Scottish Courts.

8.3.7 It is permitted and indeed encouraged to agree fees in advance.If necessary the Dean may be asked by Counsel to rule on whether a particular fee is “reasonable” in the circumstances.

8.3.8 There are, however, circumstances in which an Advocate is entitled, and indeed bound, to refuse instructions.

8.3.9 An Advocate may not accept instructions to act on behalf of any person or body from whom or from which he receives any remuneration other than the professional fees or retainers paid to him as an Advocate.Thus, he may not act for a company of which he is a director, or for a firm of which he is a partner, and from which he derives director’s fees, a salary or a share of the profits（see also paragraph 8.3.9 below）.

8.3.10 An Advocate shall not be entitled to make a ‘pactum de quota litis’-an agreement between the Advocate and his client entered into before final conclusion of a matter to which the client is a party by virtue of which the client undertakes to pay the Advocate a share of the result regardless of whether this is represented by a sum of money or by any other benefit achieved by the client upon conclusion of the matter.

8.3.11 An Advocate may not allow his personal interests to affect the performance of his professional duty.Accordingly, he should not accept instructions to act in his professional capacity in circumstances where he has a direct personal interest in the outcome.Where he has, or may have, an indirect personal interest in the outcome（e.g.where he is asked to act for a company in which he is a major shareholder or for an organisation in which he holds office although unremunerated）, he should consult the Dean before accepting instructions.Where a conflict of personal interest arises later, he should inform the instructing solicitor and decline to act further.Similar difficulties may arise whether Counsel is instructed to act for or against someone he knows personally or with whose personal affairs he is familiar for other reasons, or on the instructions of an agent with whom he has a close personal relationship.Thus he should exercise particular care if proposing to act on the instructions of or against a spouse, partner or other person with whom he has a close personal relationship.

8.3.12 An Advocate may not accept instructions to act in circumstances where, in his professional opinion, the case is unstateable in law or where the case is only stateable if facts known to him are misrepresented to, or concealed from, the Court.If such circumstances arise after he has accepted instructions, he must draw the matter to the client’s attention as soon as possible and indicate he is unable to act further.If necessary he may require to explain to the Court that he is unable to act further.There may, however, be exceptional circumstances in which it is proper for an Advocate, in order to assist the Court, to present a case which he believes to be unstateable in law.In such circumstances, the Advocate must explain to the client that he cannot do more than explain the client’s position to the Court, and that he will be bound to draw the Court’s attention to such statutory provisions or binding precedents as have led him to the conclusion that the case is unstateable.

8.3.13 An Advocate may not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict, or a significant risk of conflict, between or among the interests of those clients.

8.3.14 An Advocate must cease to act for both clients when a conflict of interests arises between those clients and also when there is a risk of a breach of confidence or where his independence may be impaired.

8.3.15 An Advocate must not accept instructions in a Legal Aid case for work for which sanction for the employment of Counsel has not been given by the Scottish Legal Aid Board.Acceptance of such instructions would almost certainly involve a breach of section 32 of the Legal Aid （Scotland）Act 1986（as amended）.