A half principal fixed payment is payable in the circumstances where the court duty solicitor tenders a plea of not guilty to any charge in a libel and, before commencement of a trial, tenders a plea of guilty to that charge resulting in the disposal of the case. The reference to commencement of the trial means the trial itself, not the conclusion of the first 30 minutes generating a “first day” fee.
The relevant provision is regulation 4(5B), and states:
“(5B) The amount payable under paragraph 1 of Part 1 of Schedule 1 or, as the case may be, paragraph 1 of Schedule 1A is half the amount that would otherwise be payable if the assisted person
(a) was represented by a solicitor arranged by the Board to provide criminal legal aid in accordance with regulation 7(1) of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011;
(b) tendered a plea of not guilty to any charge libelled in a complaint at the first diet at which the assisted person was called upon to plead; and
(c) before the commencement of the trial tendered a plea of guilty to that charge or any other charge in that complaint resulting in the disposal of the case.”
Regulation 4(5B) is engaged where a client was represented by the duty solicitor, a plea of not guilty was tendered and, before the commencement of the trial, tendered a plea of guilty to that charge or any other charge in that complaint resulting in the disposal of the case.
All these elements are a matter of record in any given case. In the event that these factual elements are established, the proper fee is one-half of the core fixed payment or case disposal fee.
The provision is not qualified in any way; there is no reference to a solicitor “acting as” or “acting in the capacity of” a duty solicitor. The individual circumstances in which each person in custody happens to be in custody or chooses to be represented by the duty solicitor are of no relevance to the application of the regulation. What matters is that the solicitor, by virtue of the arrangement that solicitor has with SLAB as a consequence of his or her inclusion on the duty plan for that day, was the duty solicitor under the duty solicitor regulations on the day.
The only exception, in line with an understanding between the Board and the Law Society (see link below), is where we are satisfied that there was a pre-existing solicitor/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.
The full fee is payable in circumstances where you had previously acted for or are continuing to act in another matter for the person appearing from custody even though you were the duty solicitor. The full fee is not payable where there is no vouched pre-existing relationship.
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.
From 1 July 2020 until the expiry of the Coronavirus (Scotland) Act 2020, you should refer to this Covid-19 update for details of the changes we have made to this guidance.
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 the 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.