Duties to the court

The article starts by challenging the oft repeated assertion that the lawyer's duty to the court is paramount. It then looks at the historical background to the duties owed by lawyers in Scotland to the courts. It identifies how the regulation of the Scottish lawyers moved from the courts to the professional bodies over time, but also the surprising degree of residual regulatory authority in the courts, over both solicitors and advocates. Thus it argues that contrary to received wisdom there is no reason why an advocate could not be found liable in expenses where an abuse of process can be established. The piece highlights several principal duties: The duty to conduct cases efficiently and expeditiously, the duty not to abuse the court process, the duty of candour to the court, and the duty not to interfere with the proper administration of justice. Each duty is analysed in depth and from a comparative perspective drawing on the writings of international scholars in the field. The author discusses many of the unresolved issues in this area, as well as how we might learn from the insights of the international writers.