The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023 came into force on 29 April 2023.

This Guidance item reflects the regulations in force prior to that date.
For the regulations in force from 29 April 2023, please refer to the current Guidance section.

The ABWOR appointed solicitor fee reflects the importance of an existing solicitor/client relationship as a result of which a client in custody is considered to be more likely to be able to make an early informed decision at the pleading diet stage.  However, you are only in a position to act as appointed solicitor and claim the fee if certain criteria are met.  Remember,

  • If there are no proceedings, there can be no ABWOR. Only advice and assistance can be provided if, for example, the case is disposed of by a special measure or the client is released without a complaint being served
  • ABWOR can only be provided by an appointed solicitor
  • in a custody case;
  • where the client has had a prior solicitor/client relationship with you (that is, the solicitor who seeks to act as an appointed solicitor) or another solicitor who is connected to your firm since 6 June 2011 with the coming into force of the duty solicitors regulations; and
  • where you have taken instructions directly from the client, and can act immediately at the pleading diet either in person or through another solicitor (who shall not be the duty solicitor)
  • The solicitor/client relationship must have been with the individual solicitor purporting to act as appointed solicitor, not with someone else in the firm prior to 6 June 2011.
  • You can only delegate the representation, having taken instructions, to another solicitor (except the duty solicitor) in circumstances where you cannot reasonably attend because of
  • illness or incapacity;
  • the arising (since instruction in relation to the appearance) of a professional obligation to act (in person) in another case that is to call elsewhere or around the same time; or
  • another good reason,
  • We will accept a High Court diet in a sitting, which proceeds, as “arising since instruction”
  • You must show, as a “good reason” for delegating representation, that it would have been impossible for you to attend court, not simply that it was more convenient that someone else attend court on your behalf
  • The ABWOR fixed payment is not chargeable under any circumstances where the duty solicitor represents the client at the pleading diet

You are only in a position to act as appointed solicitor if you are “attending upon, advising and acting for any person who appears from custody on the day when that person is first brought to a court to answer to any complaint…”.  You cannot act as appointed solicitor after the event, the case having been referred to you by another solicitor or the duty solicitor who represented the client at the pleading diet.

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