Why would a Solicitor Advocate QC still instruct QC and junior barristers? In Serafin v Malkiewicz &amp; Ors [2020] UKSC 23 (3 June 2020), David Price QC, Solicitor Advocate instructed two QC and a junior barrister for the appellants. But then what's the point of the Solicitor Advocate? Why didn't the Solicitor Advocate appear instead of the junior barrister? If the Solicitor Advocate felt unqualified to appear at the UKSC, then why hire the Solicitor Advocate at all in the first place? Solicitor-advocate or barrister? | Opinion | Law Gazette The role of a solicitor-advocate can depend on the area of law. In family cases, the solicitor who wishes to use their rights of audience will see a case right through to final hearing, preparing the case and cross-examining witnesses. Criminal solicitor- advocates can sometimes do the same, although being a full-time solicitor-advocate in crime can mean you are instructed by a firm in the same way as a barrister. If you work ‘in-house’ you will be kept busy with advocacy if you choose to use your rights of audience. You would therefore not see the case through from beginning to end, but it is more likely you will be involved in every hearing – hence keeping a healthy continuity for the client. What is a Solicitor Advocate? How Do I Become One? - The Lawyer Portal A solicitor advocate is, in basic terms, someone who is fully qualified as a solicitor but has gained the same rights of audience as a barrister by obtaining an extra qualification.
Just because you can doesn’t mean you should I’m a professional electrical engineer and a licensed electrician. That means I can do electrical wiring but most electricians who do nothing else can do it quicker, better and neater than I can. Just because a solicitor-advocate can do the job of a barrister doesn’t mean that’s in their client’s best interest.
Issues in the question In Australia, any civil claim below $10,000 is considered a small claim This depends on the State or Territory involved. In three the limit is $25,000, not $10,000. In only one is it exactly 19,000. In several the plaintiff has an option not to have such a case treated as a small claim. one cannot use a solicitor to represent himself in the small claims court. This also varies by state/Territory. In some a lawyer may represent a person or company, in some legal representation is allowed only if both parties agree or if the court permits, in some no lawyers are allowed except in very special circumstances. One may also not claim the amount incurred in legal fees for small claim proceedings. This seems to be true in most states Sources &quot;Small claims tribunals&quot; from the Australian Competition and Consumer Commission (ACCC) &quot;Debt Recovery – Small Claims&quot; from the The Arts Law Centre of Australia Details Australian Capital Territory (ACT) Small Claims Limit: $25,000 Name of court: ACT Civil and Administrative Tribunal (ACAT) Option to use a higher court: No Lawyers (solicitors) allowed: Yes Can a solicitor's costs be recovered by the winner: no New South Wales (NSW) Small Claims Limit: $20,000 (higher for some kinds of cases) Name of court: Local Court, Small Claims Division or NSW Civil and Administrative Tribunal Option to use a higher court: Unclear from my sources Lawyers (solicitors) allowed: Yes Can a solicitor's costs be recovered by the winner: No Northern Territory (NT) Small Claims Limit: $25,000 (higher for some kinds of cases) Name of court: Northern Territory Civil and Administrative Tribunal (NTCAT). Option to use a higher court: No Lawyers (solicitors) allowed: Only with the leave of NTCAT Can a solicitor's costs be recovered by the winner: Only in exceptional circumstances Queensland Small Claims Limit: $25,000 (higher for some kinds of cases) Name of court: Queensland Civil and Administrative Tribunal ('QCAT'). Option to use a higher court: No Lawyers (solicitors) allowed: No, unless one party is a child or both parties and the tribunal member agree, or in certain other limited circumstances see https://www.qcat.qld.gov.au/resources/legal-advice-and-representation Can a solicitor's costs be recovered by the winner: No South Australia Small Claims Limit: $12,000 Name of court: Magistrates Court, Civil (Minor Claims) Division Option to use a higher court: No Lawyers (solicitors) allowed: No, unless both parties agree or one party is a lawyer. Can a solicitor's costs be recovered by the winner: No Tasmania Small Claims Limit: $5,000 Name of court: Minor Civil Claims Division of the Magistrates Court Option to use a higher court: No Lawyers (solicitors) allowed: Only if both parties agree and permission is granted by the Magistrate, or in other special circumstances. See https://www.magistratescourt.tas.gov.au/about_us/civil/minor_civil_claims Can a solicitor's costs be recovered by the winner: Yes, when one has been used. Victoria Small Claims Limit: $15,000 Name of court: Victorian Civil and Administrative Tribunal (VCAT) Option to use a higher court: Yes, Magistrates' Court. Lawyers (solicitors) allowed: Only if the Tribunal is satisfied that the other party will not be unfairly disadvantaged or in certain specific circumstances, see https://www.vcat.vic.gov.au/what-vcat-does/legal-and-professional-representation#when-you-don%E2%80%99t-need-to-ask-for-permission Can a solicitor's costs be recovered by the winner: Not normally, but possibly if the losing party has acted improperly or made a claim with no legal basis. Western Australia Small Claims Limit: $10,000 Name of court: Magistrates Court (Minor Claim) Option to use a higher court: No Lawyers (solicitors) allowed: Only if all parties agree, or the court grants special permission Can a solicitor's costs be recovered by the winner: No, unless exceptional circumstances exist.
The appellate court gets the trial transcript which includes all the testimony (and exhibits or descriptions/photos of them) and the trial court's rulings. Also, each side presents an appeal brief, which will generally include a statement of facts, pointing out ones it thinks favorable to its views. In civil cases a jury may be asked/instructed to give yes/no answers to a series of questions, but this is not normal in criminal cases. An appellate court can (and sometimes does) rule that there was not sufficient evidence to permit any reasonable jury to convict; to that extent it can rule on questions of fact. But, as the comment by ohwilleke mentions, an appellate court does not hear new evidence. It can overturn the conviction and send the case back for a new trial, and in such a new trial additional evidence may be introduce at the trial court level.
This is not possible, simply as a matter of definitions and legal terminology. Someone who is "represented by one or more attorneys" is by definition not pro se which means representing yourself without an attorney. There are very rare instances in criminal trials involving serious consequences in which a pro se defendant is allowed to have an attorney advisor who does not represent them in court in an agency capacity, but, first, people who do that almost always lose and are almost always mentally ill (although not necessarily eligible for an insanity defense), and second, because courts generally don't allow this in any other circumstance (at least in court). The concept of getting advice from an attorney without having full fledged representation is called a "limited representation" and the law regarding limited representations more generally varies greatly from jurisdiction to jurisdiction and even between different courts in the same place. For example, Colorado's state courts and Colorado's federal courts have different rules for limited representations.
Your assumptions are incorrect. Courts allow oral arguments (when they do allow them) so that attorneys have a chance to better address a judge's concerns. The idea is that it lets an attorney not only present the core of his case, but it also lets him address any problems with his reasoning that the judge may have or help the judge explore a complicated question. Without that all you have is the back-and-forth in writing with opposing counsel, which is useful, but may not actually address the issues that are important to the judge. There is some difference in how you present arguments on paper as opposed to in oral argument, but the distinction is largely one of style rather than substance. An argument that is great on paper is still great when presented out loud, you just present it differently because you are presenting it in a different medium. For example, you have to present oral argument with the assumption that the judge may interrupt you at any time to ask a question they are interested in, derailing your entire pre-planned argument into a tangential point the judge considers important. This is great because it lets you address what the judge is concerned about, but it requires a different preparation and some changes to the format of your argument. For example, while you will front-load both oral and written arguments with a roadmap, both your roadmap and your first sentence are much more important in oral argument.
Usually, a person becomes a client of a lawyer by virtue of the lawyer giving advice to them. It is quite easy for a lawyer to accidentally create a lawyer-client relationship. But, a lawyer can give legal advice to someone who is not his/her client subject primarily to the limitation of Rule of Professional Conduct 4.3 which states: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. So, basically, if a lawyer gives legal advice to someone who isn't his client, the lawyer needs to be clear that both the person is not someone with a conflict of interest with his/her client, and that the lawyer provides the disclaimer that the lawyer does not have the third-party's interests at heart when giving the advice. If the non-client is adverse to the lawyer's client, or otherwise is in a conflict of interest with the lawyer's client, the lawyer may not give that person legal advice other than to retain a lawyer of their own. A lawyer giving legal advice to a non-client is also subject to Rule of Professional Conduct 4.1 which requires the lawyer to be truthful in communications with third-parties. This rule states: In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. Note also that &quot;legal advice&quot; means applications of the law to a particular person's actual factual situation, for use by that person, and not merely provision of general educational information about the law.
An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction.
The cited case (Ross [2012] UKPC 3) is not a Canadian case. It is from St Kitts and Nevis, an appeal from the Court of Appeal of that small Caribbean country to the Privy Council. The two barristers are from the same firm based in Canada (WeirFoulds LLP), a firm which also has a cross-jurisdictional practice encompassing several countries in the eastern Caribbean who share their appellate court system. Those nations also have a common pathway for onward appeals to the Privy Council, for essentially historical reasons dating from the era of the British Empire. Thus, counsels' appearance in this case is not because they are Canadian, but because of their separate entitlement to appear in Caribbean appeals. Frank Walwyn's biography (linked in the question) says he is &quot;He is licensed to practise law in Canada, and is also a member of the bars of Anguilla, Antigua and Barbuda, Barbados, Belize, the British Virgin Islands (BVI), Dominica, Grenada and St. Kitts and Nevis.&quot; (my emphasis). Membership in the St Kitts bar was enough for him to be able to also appear before the Court of Appeal of the Eastern Caribbean Supreme Court, and therefore the JCPC as well. Bryan Finlay's biography does not specify, but as senior partner in the same firm he may well have the same status. In any case, since &quot;duly qualified members of the Bar in countries from which appeals to the Queen in Council lie have a right of audience before the Judicial Committee of the Privy Council&quot; (Halsbury's Laws of England, vol. 66, para 795, 2020 ed.) he could appear before the JCPC whether or not he was allowed to do so in lower courts. Regarding your Q2 (Why Canadians?): In this case, the appeal was from St Kitts, which is a very small country of about 50k people. This would give a small talent pool from which to draw, if only barristers from St Kitts were eligible to practise in appeals. That is why the shared Eastern Caribbean court system exists and why there is some added generosity about qualifications between the participating countries. While the appellant Ross might have had many choices, he himself is &quot;a Canadian lawyer who was at the time [= 1983] practising in Halifax, Nova Scotia&quot;, and could therefore have been drawn to a Canadian firm with a Caribbean practice. The appeal, moreover, does not appear to have turned on any local peculiarity of St Kitts' law. It was mainly about how certain commercial documents should be interpreted. The issues arising would be accessible to practitioners from many common-law countries. Canada is not especially at an advantage or disadvantage, and neither is England. There are several barristers in London who have Caribbean experience and qualifications and who are more commonly instructed to appear on Caribbean-related cases (London is a nexus for commercial litigation, and several Caribbean jurisdictions are commercially important in this way, such as the Cayman Islands). I have no data on your Q1 (How many Canadians?). I expect that there are not many, because the natural choice of counsel might be either a London-based barrister, or one from the jurisdiction of origin who has been handling the case so far, rather than from a third country with no recent history of JCPC appeals. You could gather your own data from case reports if you are so inclined; as far as I know there isn't a systematic pre-existing study available.