The Legal Aid and Advice and Assistance (Miscellaneous Amendments) (Scotland) (No.2) Regulations 2023 came into force on 29 April 2023. This Guidance item has been amended to reflect the new regulations.
For the regulations in force prior to 29 April 2023, please refer to the archive Guidance item.
In line with an understanding between SLAB and the Law Society of Scotland, where we are satisfied that there was a pre-existingsolicitor/client relationship before that person appeared from custody either with the individual solicitor or with the firm (but nothing less than that). The pre-existing relationship applies to the individual solicitor, not the firm, even though you were the duty solicitor you can, in such cases, provide appointed solicitor ABWOR, but no fee can be claimed, in addition, under the duty scheme.
Any reliance on an argument that the individual had been recommended to you by family or friends prior to their appearance from custody is effectively an acceptance that you are unable to vouch having or having ever had a pre-existing solicitor/client relationship with that individual. Unverifiable pre-court communication, professional recommendations or family ties to other existing clients of the firm does not establish a previous solicitor-client relationship.
Previous solicitor/client relationship
to act as an appointed solicitor you, or another solicitor from your firm, must have (or have had) a prior solicitor/client relationship. This relationship is not, in terms of the regulation, restricted to previous dealings in connection with a criminal matter. If there is a prior solicitor and client relationship, you may be able to act as appointed solicitor for a first offender. This may, for example, arise where you have acted for the client in other matters such as civil proceedings, or perhaps advice in connection with children’s hearings issues – in these circumstances a solicitor/client relationship does exist, and you can provide ABWOR as the appointed solicitor.
such a relationship has to be vouched, either by reference to previous applications failing which evidenced in some manner, in that it has to be demonstrable to the satisfaction of the Board.
if you or another solicitor from your firm has had no dealings with the client before this case, you cannot provide ABWOR. The only form of representation that the client can receive would be through duty solicitor, although you could provide advice and assistance if appropriate.
our position on a prior solicitor/client relationship is based on the discussion in Law, Practice & Conduct for Solicitors by Alan Paterson/Bruce Ritchie Chapter 4 (Taking instructions).
“…it would appear that in terms of professional ethics the client/lawyer relationship…is formed when the lawyer expressly or impliedly agrees to act as the lawyer for the client.”
“… for more than a century [the legal relationship] has been regarded as a contract for services rooted in the law of agency”. Reference is made by the authors to the words of Lord Justice Clerk Inglis in the case of Bell v Ogilvie 2 M 336.
In view of the requirements as to an earlier agreement to act and indeed the existence of an earlier contract, we do not accept that such a relationship exists where the basis of the client calling on your services was by word of mouth or some general recommendation made by a third party.