Who can grant advice and assistance?

Only an enrolled solicitor, registered to provide criminal legal assistance and entitled to undertake legal work in their own name can be satisfied that a client is eligible, grant advice and assistance and decide whether to provide ABWOR [regulation 8 of The Advice and Assistance (Scotland) Regulations 1996].This includes a second year trainee solicitor who is admitted to the Roll of Solicitors and has a restricted practising certificate.  It does not include a first year trainee, unless admitted under the Admission as Solicitor (Scotland) Regulations 2019, a paralegal or other non-legally qualified person.

A person who is not a solicitor cannot be so satisfied.

Who can provide advice and assistance?

Only a solicitor (or counsel) can provide advice and assistance [section 6 of the Act]. It is important to recognise this and other restrictions under our legislation in the way in which your firm may otherwise provide legal services to a client.

 

It was so decided in the case Regina v Legal Aid Board, ex parte Bruce [1992] 1 WLR 694. This decision is entirely applicable to the Scottish scheme having been determined at a time when the Legal Aid Board acted under almost identical legislation to us, the Board.

A second year trainee, or a first year trainee who has been admitted as a solicitor, has a practising certificate and is registered to provide criminal legal assistance can grant advice and assistance and carry out all subsequent work as the solicitor. A person who is not a solicitor cannot do so.

Subject to the provisions of the Legal Aid (Scotland) Act 1986 [section25A], any solicitor who is entitled to undertake criminal legal aid work in their own name may provide advice and assistance.

We keep a Criminal Legal Assistance Register of solicitors who are eligible to provide criminal legal assistance and of the firms with which these solicitors are connected. You can only provide criminal legal assistance if your name appears on the Register and only when working in connection with a registered firm.

“Criminal legal assistance” means criminal legal aid and advice and assistance in relation to a criminal matter.

Second year trainees and non-legally qualified members of staff

There are limited circumstances in which a non-legally qualified person (including a first year trainee or second year trainee who has not been admitted as a solicitor) can be involved in the provision of advice and assistance.

A non–legally qualified member of the solicitor’s staff may carry out preliminary work to help the solicitor when considering an application for advice and assistance.

Also, whereas only a solicitor can give advice to a client, a suitably-trained unqualified person can undertake ancillary work, pass on advice formulated by a solicitor and assist in the preparation of a case, where appropriate, all at a lower rate. Only a solicitor can provide representation at court or before a tribunal under ABWOR. There is no fee for unqualified representation.

Where an unqualified member of staff takes details from a client and obtains their signature on a completed advice and assistance Declaration form, advice and assistance has not been granted until a solicitor is satisfied that the client is eligible to receive advice and assistance.

Determining client’s eligibility - tasks that may be undertaken by a non-legally qualified person

An unqualified person, including a trainee who is not yet an enrolled solicitor, may carry out preliminary work to ingather information from the client to allow you to make the determination as to the eligibility of the client for advice and assistance.

That person:

Must:

  • Refer to the current Keycard and this guidance when applying through legal aid online.
  • Refer any questions in the financial section of the form for a decision by you, including the sufficiency of documents by way of verification.
  • Refer all matters relating to the subject matter of the advice to be given to you.

May:

  • Obtain information from the client that will enable you to carry out the financial assessment, including vouching such as bank statements or payslips.
  • Take brief details of the case, allowing you to formulate the subject matter of advice and assistance.

Must not:

  • Take the decision about eligibility.
  • Give the client any advice in connection with the subject matter of advice and assistance.
  • Decide whether ABWOR is to be given.

The client may not be able to answer all questions at the first meeting. They may have documentation at home that will help the solicitor confirm the position.  If so, you should ask them to provide the appropriate documents to the solicitor to inform the decision whether the client is financially eligible by way of financial verification.

Time spent ingathering information, whether by a solicitor or a member of staff, is not chargeable under advice and assistance, regardless of when it is obtained.  Advice and assistance only begins when you, the solicitor, grant it.

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