Assisted person wants another solicitor to act

If the assisted person wishes a different solicitor to act for them [regulation 17(3) of the Criminal Legal Aid (Scotland) Regulations 1996], only we can authorise this.  The assisted person cannot appoint another solicitor to act where legal aid is granted.

The prospective solicitor should apply to us on the assisted person’s behalf for a transfer of agency through Legal Aid Online. We cannot accept requests made by letter or telephone. The assisted person must sign the online transfer declaration form and complete the reasons why they wish to transfer.

As the prospective solicitor, you must:

• Sign the online transfer declaration form (CRIMTR/LAO).
• Send a copy of the online transfer declaration form to the current nominated solicitor.

If you do not know the name of the current solicitor, the online system will advise you of this after you have submitted your transfer application. If you do not know the legal aid reference number for the case, please contact us with the PF reference number, so that we can provide you with this.

Until we agree to the transfer, the current nominated solicitor continues to have full responsibility for the conduct of the case (unless they tell us, or have already told us, that they have stopped acting for the assisted person).

In this context, Lord Osborne observed in McKinstry v Council of the Law Society of Scotland 1997 S.L.T. 191 (1996 S.C.L.R. 421)

“However, when one comes to examine the terms of para (3) of the regulation, in my opinion, its language clearly indicates that it deals with a situation in which, depending upon circumstances, the professional relationship between the assisted person and the nominated solicitor may or may not continue. It contemplates that an assisted person may “desire” that a solicitor other than the solicitor presently nominated by him should act for him. It is important to note that the word used is “desires”, not “determines”, as in para (1), or “required”, as in para (2). In the situation with which para (3) deals, the assisted person may apply to the board for “authority to nominate another specified solicitor” to act for him. It appears to me obvious from these provisions that an assisted person does not have it within his power, within the criminal legal aid scheme, to appoint another solicitor to act for him at his own hand. The authority of the board is required.

“That authority may or may not be granted, depending upon whether “there is good reason for the application”, in relation to solemn procedure. As is stated in Stoddart and Neilson, at para 20–62:

“All changes are subject to the Board being satisfied that there is good reason for the application for a change of solicitor. If there is doubt whether a change is necessary, or where the Board suspect that the impetus for the proposed transfer has not come from the accused or the original solicitor, then permission to change may be refused. When an application for a transfer is received by the Board containing no reason for the proposed change of solicitor, or where the reason is stated baldly as ‘loss of confidence’ or ‘relationship broken down’ with no further specification, the application is likely to be refused. The fact that the original solicitor agrees to the transfer is not per se a good reason for doing so.

“It appears to me indisputable that, until the board has had the opportunity to make a decision on an application under reg 17 (3), or if the board refuses such an application, the consequence is that the solicitor originally nominated continues to possess that status.”

The assisted person must sign the declaration form to confirm that they have read and agree with the reasons given for seeking a transfer of legal aid.

The assisted person is also agreeing to a copy of this form being sent to the current nominated solicitor. If we agree to the transfer, the client is instructing the transfer of the case papers to the prospective solicitor.

You must ensure that you send the client’s signed declaration, with the reason for the request for transfer to the current solicitor, because the current solicitor is entitled to see the reasons for the transfer request. If you cannot fit all the information you wish to provide in the space provided and need to use a paper apart, please ask the assisted person to sign and date the paper apart.

Where the assisted person applies for authority to nominate another solicitor to act, we must be satisfied there is good reason for this.  We must be satisfied that:

• There is good reason to nominate another solicitor.
• There is good reason to nominate the prospective solicitor specified in the request.

Even if we are satisfied that there is good reason to nominate another solicitor, we may refuse the transfer application if we are not satisfied that there is good reason to nominate the specified solicitor.  In so doing, we may take into account the location of the specified solicitor’s place of business in relation to the location of the court or the assisted person’s address.

The following list of circumstances is not exhaustive and we will judge each application based on its own merits.

We may consider it appropriate to nominate another solicitor due to:

• The ill health, incapacity or death of the nominated solicitor.
• The retirement from practice, or from criminal practice, of the nominated solicitor.
• The suspension of the nominated solicitor’s practising certificate, including voluntary suspension with a view to acceptance of a call to the Bar.
• The assisted person wishing the solicitor actually responsible for the conduct of the case to become the nominated solicitor, either because of a change of firm, or internal arrangements within a firm.
• The nominated solicitor’s place of business is some distance from the assisted person’s home or from the court concerned, making communication difficult.
• The assisted person has moved address and is no longer able to visit the solicitor’s office.
• The assisted person can no longer afford to travel to the nominated solicitor’s office because of a change in their financial circumstances.
• Where the duty solicitor applied for legal aid as a service to the assisted person. (If the duty solicitor has proceeded to prepare the case as nominated solicitor, we may need further explanation, the longer the case goes on, to demonstrate good reason for a transfer).
• A conflict of interest arising from an existing professional or personal relationship between the nominated solicitor (or partner, associate or assistant) and the complainer, Crown witness or trial judge.
• A breakdown in the solicitor/client relationship.

Where a transfer request arises from a stated breakdown in the solicitor/client relationship due to perceived inadequate professional services, you must identify specific material failures. It is not enough to just say that the relationship has broken down.

Examples that could be provided may be failure to:

• Attend court
• Apply for bail
• Keep appointments
• Respond to correspondence or telephone calls

Keep the assisted person  advised of material developments affecting the case

Such failures should recognise the stage of the proceedings at the time of the request for example citing a failure to undertake some court procedure at a stage where the client is on petition that can only be undertaken on the service of an Indictment.

Unless exceptional factors are shown to exist, it would not be appropriate to nominate another solicitor where:

• The current solicitor refuses to carry out the client’s unreasonable instructions. The nominated solicitor is responsible for the conduct of the defence and is not obliged to act on instructions which, in their professional judgement, are:
  • Unlawful or improper or contravene any professional rule of guidance.
  • Likely to conflict with their duty to the court.
  • Prejudicial to the accused’s interest.

They should, however, carefully explain to the client why they cannot act on those instructions.

• The solicitor whom the assisted person wishes to nominate is the “family solicitor” or is already acting for a family member or friend in some other case.
• The solicitor whom the assisted person wishes to nominate is already acting for the assisted person in another case(s). This may be a good reason where it is intended to have a number of outstanding complaints against the accused disposed of at the same time or where the other case is closely linked with the present case, for example a civil interdict arising out of the same incident.
• The assisted person has already dispensed with the services of the nominated solicitor.
• The prospective solicitor’s normal place of business is some distance from the assisted person’s home or from the court concerned, making communication with the accused difficult, and leading to excessive additional travelling charges.

We may have to take into account wider issues where it appears that the nomination of the solicitor seeking the transfer would be likely to breach the Code of Conduct for Criminal Work or any other professional rule. For example, if the solicitor seeking the transfer is already acting for a co-accused in the same case, accepting instructions from the accused could create a conflict of interest situation, contrary to Article 2 of the Code of Conduct.  Where the circumstances would amount to a prima facie breach of the Code, the prospective solicitor should explain why they nonetheless consider it is in order for them to act.

The effective date of any approved transfer is when we grant the application for a change of solicitor.  Work done by the prospective solicitor before this date is not a valid charge under the grant of criminal legal aid. Some of the work, for example work concerned with securing a transfer of agency, may be chargeable under advice and assistance.

The current nominated solicitor is entitled to charge for:

• Work done until notified by us of the transfer of the certificate.
• Any further urgent work necessary for the protection of the immediate interests of the assisted person or for the discharge of their duty to the court.

See our guidance on solicitor and applicant signatures.