For any period when legal aid is in place, neither you nor counsel can take any payment for work other than what is payable under section 32 of the Legal Aid (Scotland) Act 1986.
Fees can be charged privately for work done for any period when legal aid is not in place. However a private fee (including any speculative fee) that relates to work over a period which includes a period in which legal aid was in place, whether in whole or in part, contravenes section 32. In practice it is difficult to see how a speculative fee agreement for a case as a whole could survive subsequent grant of legal aid, as any private fee provision which relates to the period for which legal aid is effective is unlawful.
To ensure and demonstrate that section 32 of the Legal Aid (Scotland) Act 1986 is not breached when charging a private fee and/or a speculatively agreed fee, for any work undertaken outwith legal aid, you should ensure that it there is a clear written agreement demonstrating that any private fee relates only remuneration for work done outwith legal aid. A payment that related to the case as a whole may cover work wholly or partly done during the currency of the grant of civil legal aid, thereby amounting to a supplementation of fees and breaching section 32.
Therefore, you must give us details of the agreement including information as to what work you have charged for and the period or stages of the case for which you are charging.
This applies whether you are seek to opt to accept judicial expenses or payment per the civil table of fees, in any situation where you also seek to charge privately for work outwith the dates of the legal aid cover.